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8S 95 Moulton V. Kershaw, 59 Wis. 316, 18 N. W. 172 99 Mis.sissippi & D. S. S, Go. v. Swift, 86 Me. 248, 29 Atl. 1063 101 III. Contracts under Seal. (a) Delivery. Martin v. Flaharty, 13 Mont 96, 32 Pac 287 100 Cb) Consideration. AUer T. Aller, 40 N. J. Law, 446 110 (c) Revocation of Offer under Seal. McMillan t. Ames, 33 ilinn. 257, 22 N. W. 612 113 IV. Statute of Frauds. (a) Instruments under Statutes. Thompson v. Blanchard, 3 N. Y. 335 115 Cb) Executed Contracts. Stone V. Dennison. 13 Pick. (Mass.) 1. 116 Ci) I5. 151 Goddard v. Biuney, 115 Mass. 450 153 Cooke V. Millard, 65 N. Y. 352 155 Pratt V. Miller. 109 Mo. 78. 18 S. W. 965. 163 Caalkins v. Hellman, 47 N. Y. 449 H>6 Garfield v. Paris, 96 U. S. 557 168 Edgerton v. Hodge, 41 Vt. 676 172 Hunter v. Wetsell, 84 N. Y. 549 174 (i) TTie Memorandnm in Writing. Peabody v. Speyers, 56 N. Y. 230 176 Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533, 8 S. B. 8 178 McGovern v. Hern, 153 Mass. 308, 26 N. E. 861 183 Drake v. Seaman. 97 N. Y. 230 184 Justice V. Lang, 42 N. Y. 493 187 Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139. 199 Clason T. Bailey, 14 Johns. 484 ,... 201 (j) EfPect of Noncompliance with. Statute. Townsend v. Hargraves, 118 Mass. 325. . 205 Wheeler r. Reynolds, 66 N. Y. 227 208 Nally V. Reading, 107 Mo. 350, 17 S. W. 978 212 Britain v. Rossiter, 11 Q. B. Div. 123. . . 213 Baker v. Lauterback. 68 Md. 64, 11 AtL 703 218 V. Consideration. (a) Defined. flamer v. Sidway, 124 N. Y. 538, 27 N. Pag9 McKjnley t. Watkins, 13 IB. 140 243 Rue y. Meirs, 43 N. J. Eq. 377. 12 A.tL 369 249 (f) Natnral Affection. Fink V. Cox, 18 Johns. (N. Y.) 145. 253 (g) Moral Obligation. Mills v. Wyman, 3 Pick. (Mass.) 207 254 (b) Impossible Promises. Stevens v. Coon, 1 Pin. (Wis.) 356 256 (i) Doing Wliat One is Bound to Do. Stilk V. Myrick, 2 Comp. 317 257 Munroe v. Perkins, 9 Pick. (Mass.) 298. . . 258 Vanderbilt v. Schreyer, 91 N. Y. 392 260 Wheeler v. Wheeler, 11 Vt. 60 264 Jaffray v, Davis, 124 N. Y. 164, 26 N. B. 351 266 (j) Past Consideration. Ehle V. Judson, 24 Wend. (N. Y.) 97 269 Pool V. Homer, 64 Md. 131, 20 Atl. 1036. . 271 Boothe V. Pitzpatrick, 36 Vt. 681 272 Earle t. OUver, 2 Exch. 71 274 VI. Capacity of Parties. (a) Tbie Government. U. S. T. TiQgey, 5 Pet 115 276 E. 256 220 (b) Necessity. liann v. Hughes, 7 Term R. 350 224 (,c) Adequacy. Haigh v. Brooks, 10 Adol. & E. .''.09 226 Judy V. Louderman, 48 Ohio St, 562, 29 N. E. 181 227 SchneU v. NeU, 17 Ind. 29 2;30 (d) Mutual Promises. Coleman v. Eyre. 45 N. Y. 38 232 Seward v. Mitchell, 1 Cold. (Tenn.) 87 233 Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. E. 352 234 Keep v. Goodrich, 12 Johns. (N. Y.) 397. . 236 L'Amoreux v. Gould, 7 N. Y. 349....... 238 Davie v. Lumberman's Min. Co., 93 Mich. 491, 53 N. W. 625 240 (e) Forbearance. Cook V. Wright, 1 Best & S. 5.59 242 Rector, etc, St. Mark's Church v. Teed, 120 N. Y. 5.83,24 N. B. 1014 246 (b) Infants. Whitney v. Dutch, 14 Mass. 457 278 Bordentown Tp. v. Wallace, 50 N. J. Law, 13, 11 Atl. 267 281 Rvder v. WombweU. L. R. 4 Exch. 32 282 M'cKanna v. Merry, 61 111. 177 286 Johnson v. Lines, 6 Watts & S. (Pa.) 80. . 287 Stafford v. Roof. 9 Cow. (N. Y.) 626 290 Goodnow V. Empire Lumber Co., 31 Minn. 468, 18 N. W. 283 292 Mansfield v. Gordon. 144 Mass. 168, 10 N. E. 773 294 Tucker v. Moreland, 10 Pet. 58 295 Henry v. Root, 33 N. Y. 526 301 Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476 313 Rite V. Boyer, 108 Ind. 472, 9 N. E. 420. . 315 (c) Insane Persons and Idiots. Allis V. Billings, 6 Mete. (Mass.) 415 319 Hovey v. Hobson, 53 Me. 451 322 Mutual Life Tns. Co. v. Hunt, 79 N. Y. 541 325 Seaver v. Phelps, 11 Pick. (Mass.) 304... 320 Sawyer v. Lufkin, 56 Me. 308 328 (d) Drunken Persons. Barrett v. Buxton, 2 Aiken (Vt) 167 329 (e) Married Women. Martin v. DweUy, 6 Wend. (N. Y.) 9 331 Gregory v. Pierce. 4 Mete. (Mass.) 478. . 335 Willard v. Eastham, 15 Gray (Mass.) 328. 336 Owen V. Cawley, 36 N. Y. 600 339 (f) Corporations, Downing v. Mt Washington Road Co., 40 N. H. 230 342 TABLE OF CONTENTS. Thomas v. Railroad Co., 101 U. S. 71 34." Bradley v. Ballard. HO III. 413 350 Union Bank v. Jacobs, G Humph. (Tenn.) 515 352 VII. Reality of Consent. (a) Mistake. Foster v. Mackirinon. L. U. 4 C. P. 704. . 358 Cuudj' V. Liiidsav, 3 App. Gas. 459 3G0 Couturier v. ilastio, 5 H. L. Ca.s. 073... 363 Irwin V. Wilson, 45 Ohio St. 426, 15 N. E. 209 366 Sherwood v. Walker, 60 Mich. 508, 33 N. W. 919 370 Osbnrn v. Throckmorton, 90 Va. 311, 18 S. E. 28o 374 (b) Fraud. People's Bank of City of New York t. Bogart, 81 N. 1. 101 376 Lomerson v. Johnston; 47 N. J. Eq. 312, 20 Atl. 075 379 Gordon v. Parmelee, 2 Allon (Mass.) 212. 380 Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 101 382 Stimson v. Helps, 9 Colo. 33. 10 Pac. 290. oS4 Cobb T. Hatfield, 40 N. Y. 533 380 Rowley v. Bipelow, 12 Pick. (Mass.) 307. . 388 Mallory v. Leach, 35 Vt. 150 390 (e) Duress. Brown .-. Pierce, 7 Wall. 205 394 Spaids V. Barrett, 57 111. 289 396 Robinson v. Gould, 11 Cush. (Mass.) 55. . 398 Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 59c> 400 (d) Undue Influence. Cowee V. Cornell, 75 N. Y. 91 402 McParland v. Larkin. 155 111. 84, 39 N. E. 609 406 Wooley V. Drew, 49 Mich. 290, 13 N. W. 5M 410 Vm. Illegality of Object. (a) Commission of Crime or Civil Wrong. Atkins V. Johnson, 43 Vt. 78 412 Jewett Pnb. Co. v. Butler, 159 Mass. 517, 34 N. E. 1087 414 Cb) Violation of Statutes. Griffith V. W^lls. 3 Denio (N. Y.) 226 416 (c) Same — Sunday Laws. Lyon T. Strong, 6 Vt. 219 417 (d) Same — Usury. Lloyd V. Scott. 4 Pet. 205 421 (e) Public Policy — Injury to Public Service. Bliss V. Ijawrence, 58 N. Y. 442 425 Providence Tool Co. v. Norris, 2 Wall. 45. 428 Trist V. Child. 21 Wall. 441 430 (f) Same — Obstruction of Justice. Goodrich v. Tenney. 144 111. 422, 33 N. B. 44 434 Jones V. Rice, 18 Pick. (Mass.) 440 439 (g) Same — Champerty and Maintenance. Pa-.- Thompson v. Reynolds, 73 111. 11 440 Fowler v. Callan. 102 N. Y. 3!t."j, 7 N. E. 1(;9 442 Courtright v. Burnes, 13 Fed. 317 443 Oi) Same— Immoral Aereements. Saxon V. Wood, 4 Ind. App. 242, 30 N. E. 797 444 (i) Same — Gaming and Wagers. Collamer v. Day, 2 Vt. 144 447 (j) Same — Futures. Beadles v. McElrath. 85 Ky. 230. 3 S. W. 152 448 (k) Same — Fraud and Breach of Trust. Spinks V. Davis, 32 Miss. 152 452 (1) Same — Derogation of Marriage Re- lation. Lowe V. Peers, 4 Barrows, 2225 454 (m) Same — Restraint of Trade. Herreshoff v. Boutineau, 17 R. I. 3, 19 Atl. 712 458 Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419 401 Cartl V. Snyder (N. J. Ch.) 26 Atl. 977. .. 40.^. Tode V. Gross, 127 N. Y. 480, 28 N. E. 469 407 (n) Same— Unlavrfnl Combinations — Monopolies, etc. Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St 173 469 Central Shade-Roller Co. v. Cushman, 143 Mass. 353, 9 N. E. 629 473 Good V. Daland. 121 N. Y. 1. 24 N. E. 15. . 474 More V. Bennett, 140 111. 09, 29 N. E. 888 470 (o) Same — Idmiting Liability for Neg- ligence. Railroad Co. v. Lockwood, 17 Wall. 357. . 480 (p) Effect orf niegality. Sullivan t. Hergan, 17 R. I. 109, 20 Atl. 232 490 Shaw V. Carpenter. 54 Vt 155 491 Roys v. Johnson. 7 Gray (Mass.) 162.... 490 Tracy t. Talmage, 14 N. Y. 162 497 Tvler V. Carlisle, 79 Me. 210. 9 Atl. 356. . 508 Frost V. Gage, 3 Allen (Mass.) 500 509 Woodworth v. Bennett 43 N. Y. 273 511 Sprins Co. v. Knowlton. 103 N. Y. 49 513 Ford \. Harrington, 10 N. Y. 2S5 517 White V. Franklin Bank, 22 Pick. (Mass.) 181 520 IX. Operation of Contract. (a) Limits of Contractual Relation. Boston Ice Co. v. Potter, 123 Mass. 28. .. 524 Exchange Bank of St. Louis v. Rice, 107 Mass. 37 526 Lawrence v. Fox. 20 N. Y. 208 529 (b) Assigrnment. Rapplye ▼. Racine Seeder Co., 79 Iowa, 220. 44 N. W. 303 534 VI TABLE OF CONTENT.^. Page Coolidcre v. Rugrcles. 15 Mass. 3S7 538 Walker v. Brooks. 125 Mass. 241 539 Arkansas Vallev Smeltins Co. v. Belden Min. Co., 127 U. S. 379, S Sup. Ct. 130S. 542 Vanbuskirk t. Hartford Fire Ins. Co., 14 Conn. 141 545 Mott V. Clark, 9 Pa. St. 399 546 (c) Joint and Several Contracts. Eller V. Lacv. 137 Ind. 436. 36 N. E. lOSS 549 Ansrus v. Robinson. 59 Vt 5S5, 8 Atl. 497. 551 X. Interpretation of Contract. (a) Rales Relating to Evidence. Smith V. Williams, 1 Murph. (N. C.) 426. 552 Cb) Same — Proof of Custom and Usage. Cooper V. Kane, 19 Wend. (N. Y.) 3S6 555 (c) Roles of Constmction. Grav V. Clark, 11 Vt. 583 556 (d) Same — Rules as to Time. Beck & Pauli Lithographing Co. v. Colo- rado MUIing & Elevator Co.. 3 C. C. A. 248, 52 Fed. 700 558 (e) Same — Penalties and Liquidated Damages. 561 laqnith v. Hudson, 5 Mich. 123. XI. Discharge of Contract. (a) Waiver. Uobbs v. ColTimbia Falls Brick Co., 157 Mass. 109, 31 N. E. 756 566 Cb) Substituted Agreement. Cutter V. Cochrane, 116 Mass. 408 567 Buttertield y. Hartshorn, 7 N. H. 345 568 (c) Performance — Payment. PaK» Markle v. Hatfield, 2 Johns. (N. Y.) 455. . 571 Cheltenham Stone & Gravel Co. v. Gates Iron Works, 124 111. 623, 16 N. E. 923. . 573 (d) Same — Tender. Lamb v. Lathrop, 13 Wend. (N. Y.) 95. .. 57.^ (e) Conditions Subsequent. Ray V. Thompson, 12 Gush. (Mass.) 281. . . 577 (f) Breacb — Renunciation. Lake Shore & M. S. Ry. Co. v. Richards, 152 111. 59, 38 N. E. 773 578 (g) Same — Impossibility Caused by Party. Newcomb v Brackett, 16 Mass. 161 592 (b) Same — Concurrent Conditions. Morton v. Lamb, 7 Term R. 125 594 (i) Same — Conditions Precedent. Dey V. Dox, 9 Wend. (N. Y.) 129 598 Grant v. .Tohnson, 5 N. Y. 247 601 Norrington v. Wright, 115 U. S. 188. 6 Sup. Ct. 12 604 Wooten V. Walters, 110 N. C. 251, 14 S. E. 734 610 Bast V. Byrne, 51 Wis. 531, 8 N. W. 494. . 613 (j) By Operation of 'La.w — Impossibility. Superintendent & Trustees of Public Schools of City of Trenton v. Bennett, 27 N. J. Law, 513 615 Yerrington v. Greene, 7 R. I. 589 618 (k) Same — Merger. Van Vleit v. Jones, 20 N. J. Law, 340 620 (X) Same — Alteration of .Written Instru- ment. Wood T. Steele, 6 Wall. 80 622: CASES REPORTED. PaRe Allpr V. Allor (40 N. J. Law. 44G) 110 AUis V. Billirijrs (C, Mi-to. 4ir.i 319 Angus T. Robinson (8 Atl. 497, 59 Vt. 585) 551 Arkansas V:illey Smt'ltinj; Co. v. Beldeu Mill. Co. (8 Sup. Ct. laOS, 127 U. S. 379) 542 Atkins V. Johnson (43 Vt. 78) 412 Baker t. Lauterback (11 Atl. 703, 68 Md. &4) 218 Baldwin v. Williams (3 Mctc. 365) 151 B.irrett v. Buxton (2 Aik. 167) 329 Bast V. Byrne (8 N. W. 494, 51 Wis. 531) . 613 Beadles v. Leet (3 S. W. 152. 85 Ky. 230) 448 Beadles v. McElrath (3 S. W. 152, 85 Ky. 230) 448 Beck & Pauli Lithographing Co. v. Colo- rado Milling & Elevator Co. (3 C. C. A. 248, 52 Fed. 700) 558 Bellows V. Sowles (57 Vt. 104) 118 Blake v. Cole (22 Pick. 97) 149 Bliss V. Gardner ^58 N. Y. 442) 425 Bliss V. Lawrtmc6 (58 N. Y. 442) 425 Boothe v. Fitzpatrick (36 Vt. 681) 272 Bordentown Tp. v. Wallace (13 Atl. 267, 50 N. J. Law, 13) 281 Boston Ice Co. v. Potter (123 Mass. 28) . . 524 Boston & M. R. R. v. Bartlett (3 Cush. 224) 75 Bradley v Ballard (55 111. 413) 350 Britain v. Kossiter (11 Q. B. Div. 123) 213- Brown v. Pierce (7 Wall. 205) 39-4 Butterfield v. Hartshorn (7 N. H. 345) 568 Carlill V. Carbolic Smoke Ball Co. ([1893] 1 Q. B. 256) 67 Carll V. Snyder (26 Atl. 977) 465 Caulkins v. Hellman (47 N. Y. 449) 166 Central Shade-Roller Co. v. Cushman (9 N. E. 629, 143 Mass. .353) 473 Cheltenham Stone & Gravel Co. v. Gates Iron Works a6 N. E. 923, 124 111. 623). . 573 Clason v. Bailey (14 Johns. 484) 201 Clason V. Denton (14 Johns. 484) 201 Clason T. Merrit (14 Johns. 4$4) 201 Cobb V. Hatfield (46 N. Y. .5.33) 386 Coleman v. Eyre (45 N. Y. 38) 2;^2 Collamer v. Day (2 Vt. 144) 447 Cook V. Wrifrht (1 Be.st. «fc S. 5."9) 242 Cookp V. Millard (65 N. Y. 352) 155 Coolidge V. Ruggles (15 Mass. 387) 538 Cooper V. Kane (19 Wend. 386) 5.55 Courtrip:ht v. Burnes (13 Fed. 317) 443 Couturier v. Hastie (5 H. L. Gas. 673) 363 Cowee v. Cornell (75 N. Y. 91) 402 Crane v. Wheeler (50 N. W. 1033, 48 Minn. 207) 122 Cundv V. Lindsay (3 App. Cas. 4.59) 360 Cutter V. Cochrane (116 Mass. 408) 567 Davie t. Lumberman's Min. Co. (53 N. W. 625. 93 Mich. 491) 240 Day V. Caton (119 Mass. 513) 28 I )ey V. Dox (9 Wend. 129) 598 Diamond Match Co. v. Roeber (13 N. E. 419. 106 N. Y. 473) 461 Dickinson v. Dodds (2 Ch. Div. 463) ... 77 Downing v. Mt. Washington Road Co. (40 X. H. 230) 342 Dovle V. Dixon (97 Mass. 208) 1.50 Drake v. Seaman (97 N. Y. 230) 184 Dunlop V. Higgins (1 H. L. Cas. 381) 31 Earle v. Oliver (2 Exch. 71) 274 Edgerton v. Hodge (41 Vt. 676) 172 Page Ehle T. Jud.son (24 Wend. 97) 269 Eliason v. Henshaw (4 Wheat. 225) 24 EUer V. Lacy (36 N. E. luss, 137 Ind. 436) 549 Exchange Bank of St. Louis v. Rice (107 Mass. 37) 526 Fairbanks v. Snow (13 N. E. 596, 145 Mass. 153) 400 Fink v. Cox (18 Johns. 145) 253 Fogg V. Portsmouth Athencum (44 N. H. 115) 26 F..rd V. Harrington (16 N. Y. 2S5) 517 Foster v. Mackinnon (L. R, 4 C. P. 704). . 358 Fnuier v. Cullan (7 N. E. 169, 102 N. Y. 395) 442 Frost v. Gage (3 AJlen, 560) 509 Gabell v. South Eastern Ry. Co. (2 C. P. Div. 416) 18 Garfield v. Paris (96 U. S. 557) 168 Goddard v. Binney (115 Mass. 450) 153 Good V. Daland (24 N. E. 15, 121 N. Y. 1) 474 Goodnow V. Empire Lumber Co. (18 N. W. 283, 31 Minn. 468) 292 Goodrich v. Tenney (32 N. E. 44, 144 111. 422) 434 Gordon v. Parmelee, two cases (2 Allen, 212) 380 Grant v. Johnson (5 N. Y. 247) 601 Gray v. Clark (11 Vt 583) 556 Green v. Armstrong (1 Denio, 5.50) 145 Gregory v. Pierce (4 Mete 478) 335 Griffith v. Wells (3 Denio, 226) 416 Haigh T. Brooks (10 Adol. & E. 309) 226 Hauler v. Sidway (27 N. E. 256, 124 N. Y, 538) 220 Harris v. Scott (32 Atl. 770) 63 Haviland v. Sammis (25 AtL 394, 62 Conn. 44) 139 Heffron v. Brown (40 N. E. 583, 155 111. 322) 95 Henry v. Root (33 N. Y. 526) 301 Horreshofif v. Boutineau (19 Atl. 712, 17 R. I. 3) 458 Hertzog v. Hertzog (29 Pa. SL 465) ri Hirth V. Graham (33 N. B. 90, 50 Ohio St. 57) 147 Hobbs V. Columbia Falls Brick Co. (31 N. E. 756. 157 Mass. 109) 560 Household Fire & Carriage Ace. Ins. Co. V. Grant (4 Exch. Div. 216) 58 Hovey v. Hobson (53 Me. 451) 322 Hunter v. Wetsell (84 N. Y. 549) 174 Hyde v. Wrench (3 Beav. 334) 89 Ide V. Leiser (24 Pac. 695. 10 Mont. 5) 82 Irwin V. Wilson (15 N, E. 209, 45 Ohio St. 426) 366 Jaffray v. Davis (26 N. E. 351. 124 N. Y. 164) 266 Jaquith v. Hudson (5 Mich. 123) 561 Jewett Pub. Co. v. Butler (34 N. E. 1087, 159 Mass. 517) 414 Johnson v. Lines (6 Watts & S. 80) 2S7 Jones V. Rice (IS Pick. 440) 439 Judy V. Louderman (29 N. E. 181, 48 Ohio St. 562) 227 Justice V. Lang (42 N. Y. 493) 187 Keep V. Goodrich (12 Johns. 397). 236 nOPK.SEI..CAS.CONT. (vii) viii CASES REPORTED. Lake Shore & M. S. Ry. Co. v. Richards (3S N. E. 773, 152 111. 59) Lamb v. Lathrop (13 Wend. 95) L'Amoreiix v. Gould (1 N. Y. 349) Larson v. Jensen (19 N. W. 130, 53 Mich. Lawrence* V! 'Fox (20* isV Y.' 268) '.'.'.'.'.'.'.'. Lawson's Ex'r v. Lawson (16 Grat. 230). . Lemraon v. Beeman (15 N. E. 47G, 45 Ohio St 505) Lewis V. Brownins (130 Mass. 173) Lloyd T. Scott (4 Pet. 205) Lomerson v. Johnston (20 Atl. 675, 47 N. J. Eq. 312) Longworth v. Mitchell (26 Ohio St. 334) . . Louisyille Asphalt Varnish Co. v. Lorick (8 S. E. 8, 29 S. C. 533) Lowe V. Peers (4 Burrows. 2225) Lyon v. Strong (6 Vt. 219) McGovern v. Hern (26 N. E. 861, 153 Mass. 308) MoKanna v. Merry (61 111. 177) McKinley v. Watkins (13 111. 140) McMillan v. Ames (22 N. W. 612, 33 Minn. 257) McParland v. Larkin (39 N. E. 609, 15o lU. 84) Mactier's Adra'rs v. Frith (6 Wend. 103) Page 578 575 238 120 529 313 62 421 379 85 178 454 417 MaUory v. Gillett (21 N. Y. 412) . Mallory t. Leach (35 Vt. 156).., 183 286 248 113 406 38 124 390 Maiiory's Adm'r v. Mallory's Adm'r (17 S. W. 737. 92 Ky. 316) 138 Mansfield v. Gordon (10 N. E. 773, 144 Mass. 168) 294 Markle v. Hatfield (2 Johns. 455) 571 Martin v. Dwclly (6 Wend. 9i 331 Martin v. Flaharty (32 Pac. 287, 13 Mont. 96) 106 MiUs V. Wyman (3 Pick. 207) 254 Minnesota Linseed Oil Co. v. Collier White Lead Co. (Fed. Cas. No. 9,635) 87 Mississippi & Dominion Steamship Co. v. Swift (29 Atl. 1063, 86 Me. 248) 101 More V. Bennett (29 N. E. 888, 140 111. 69) 476 Morris Run Coal Co. v. Barclay Coal Co. (68 Pa. St. 173) 469 Morton v. Lamb (7 Term R. 125) 594 Mott V. Clark (9 Pa. St. 399) 546 Moulton V. Kershaw (18 N. W. 172, 59 Wis. 316) 99 Mumford v. Whitney (15 Wend. .3,80) 140 Munroe v. Perkins (9 Pick. 208) 258 Mutual Life Ins. Co. v. Hunt (79 N. Y. 541) 325 Nally V. Reading (17 S. W. 978, 107 Mo. 350) 212 Newcomb v. Brackett (16 Ma.ss. 161).-... 592 Norrington v. Wright (6 Sup. Ct. 12, 115 U. S. 188) 604 O'Brien v. Young (95 N. Y. 428) 11 Osbum V. Throckmorton (18 S. E. 285, 90 Va. 311) 374 Owen V. Cawley (36 N. Y. 600) 339 Paine t. Cave (3 Term R. 148) 74 Parker v. South Eastern Ry. Co. (2 C. P. Div. 416) 18 Peabody v. Speyers (56 N. Y. 230) 176 People's Bank of City of New York v. Bo- gart (81 N. Y. 101) 376 Pool T. Homer (20 Atl. 1036, 64 Md. 131) 271 Pratt V. Miller (18 S. W. 945, 109 Mo. 78) 163 Presbyterian Church v. Cooper (20 N. E. 3.52, 112 N. Y. 517) 234 Providence Tool Co. v. Norris (2 Wall. 45) 428 Railroad Co. v. Lockwood (17 Wall. 357) 480 Rann v. Hughes (7 Term R. 3-50, note) ... 224 Rapplye v. Racine Seeder Co. (44 N. W. 363, 79 Iowa. 220 1 534 Ray T. Thompson (12 Cash. 281) 577 Paga Rector, etc., of St. Mark's Church t. Teed (24 N. E. 1014, 120 N. Y. 583) 246 Rice V. Boyer (9 N. E. 420, 108 Ind. 472) 315 Robinson v. Gould (11 Cush. 55) 393 Rowlev V. Bigelow (12 Pick. 307) 388 Roval Ins. Co. v. Beatty (12 AtL 607, 119 Pa. St. 6) 20 Roys T. Johnson (7 Gray, 162) 496 Rue V. Meirs (12 Atl. 369, 43 N. J. E.j. 377) 249 Ryder v. WombweU (L. R. 4 Exch. 32). .. 282 St. >Lark's Church v. Teed (24 N. E. 1014, 120 N. Y. 58:3) 246 Sawyer v. Lufkin (56 Me. 308) 328 Saxon V. Wood (30 N. E. 797, 4 Ind. App. 242) 444 Sceva V. True (53 N. H. 627) 8 Schnoll V. Nell (17 In 1. 29) 230 Seaver v. Phelps (11 I'ick. 304) 326 Seward v. Mitchell (1 L'old. 87) 233 Shaw V. Carpenter (54 Vt. 155) 491 Sheldon v. Davidson (r)5 N. W. 161. 85 Wis. 138) 382 Sherwood v. Walker (33 N. W. 919. 66 Mich. 568) 370 Smith V, Williams (1 Murph. 426) 552 Spaids V. Barrett (57 111. L'SO) 396 Spiuks V. Davis (32 Miss. 152) 4-52 Spring Co. v. Knowlton (103 U. S. 49) 513 Stafford v. Roof (9 Cow. 626) 290 Stamper v. Temple (6 Humph. 113) 93 State of Indiana v. Leavitt (14 N. Y. 162) 497 Stevens v. Coon (1 Pin. 356) _256 Stilk V. Myrick (2 Comp. 317) 257 Stimson v. Helps (10 Pac. 290, 9 Colo. 33) 384 Stone V. Dennison (13 Pick. 1) 116 Sullivan v. Hergan (20 Atl. 232. 17 R. I. 109) 490 Superintendent & Trustees of Public Schools of City of Trenton v. Bennett (27 N. J. Law. 513) 615 Thomas v. Greenwood (37 N. W. 195. 69 Mich. 215) 65 Thomas v. Railroad Co. (101 U. S. 71). .*. 345 Thompson v. Blanchard (3 N. Y. 335) 115 Thompson v. Reynolds (73 111. 11) 440 Thruston v. Thornton (1 Cush. 89) 14 Tode V. Gross (28 N. E. 469. 127 N. Y. 480) 467 Towusend v. Hargraves (118 Mass. 325) . . . 205 Tracy v. Talmage (14 N. Y. 162) 497 'Prist V. Child (21 AVall. 441) 430 Tucker v. Moreland (10 Pet. 58) 295 Tyler t. Carlisle (9 Atl. 356, 79 Me. 210) . . 508 Union Bank v. Jacobs (6 Humph. 515) 352 United States v. Tingey (5 Pet 115) 276 Vanbuskirk v. Hartford Fire Ins. Co. (14 Conn. 141) 545 Vanderbilt v. Schreyer (91 N. Y. 392) 260 Van Vleit v. Jones (20 N. J. Law. 340). .. 620 Wait V. Wait's Ex'r (28 Vt. 350) 123 Walker v. Brooks (125 Mass. 241) 539 Wallace v. Townsend (3 N. E. 601, 43 Ohio St. 537) 90 Wheeler v. Reynolds (66 N. Y. 227) 208 Wheeler v. Wheeler (11 Vt 60) 264 White V. Corlies (46 N. Y. 467) 16 White V. Franklin Bank (22 Pick. 181)... 52T) Whitney v. Dutch (14 Mass. 457) 278 Wilkinson v. Heavenrich (26 N. W. 139, 58 Mich. 574) 199 Willard v. Easthara (15 Gray, 328) 336 Wood v. Steele (0 Wall. 80) 622 Wood worth v. Bennett (43 N. Y. 273).,. 511 Wooley V, Drew (13 N. W, 594, 49 Mich. 2fX)) 410 Wooten V. Walters (14 S. E. 734. 110 N. C. 251) 610 Yerrington v. Greene (7 R. L 589) 618 ILLUSTRATIVE CASES ON THE LAW OF CONTRACTS HOPK.SEL.CAS.COST. (1)* >3/ CONTRACT AND QUASI-CONTRACT DISTINGUISHED 3 LAWSON'S EX'Il V. LAWSON. (16 Grat. 230) Supreme Court of Api)f'als of Virginia.' April 10, 1801. This was an action of assumpsit in the circuit court of tlio county of Alexandria by Thomas A. Brew is. executor of John Law- son, deceased, ajjaiust Isabella Lawsou. The declaration contained only the common couut.s, and whilst it commenced in the name of Thomas A. Brewis, executor of .Tohn Law- son, it charged that the defendant was in- debted to the plaintiff, and promised to pay the plaintiff. The defendant pleadetl "non assumpsit;" and on the trial demurred to the evidence. That evidence was that on the 3d day of June, 1851, T. A. Brewis, the plaintiff, came to the room where John Lawson, the plain- tiff's testator, was sick in bed, and counted out to him a sum of mo ley, upwards of six hundred dollai-s, in notes, and asked Lawson if he (Brewis) should carry the money back to the store. That Lawson said, "No; he would be better afttr a while, and would then arrange it for the bank." Lawson then handed the money to his wife, the defend- ant, and told her to put it aside until he felt better, and that he would arrange it for the bank. That John Lawson died on the 18th of Juno, 1851, and that between that date and the time when Brewis qualified as executor of the estate of Lawson, Brewis asked Mrs. Lawson for the money which he handed to John Lawson. and Mrs. Lawson refused to give it to him saying she mteud- ed to keep it. There was a verdict for $569.85, with in- terest from the 19th of June, 1851, until paid, subject to the demurrer to evidence; and upon the demurrer the court below gave a judgment for the defendant, whereupon Brewis applied to this court for a superse- deas, which was allowed. Brent & Kinzer, for appellant F. J. Smith, Lor appellee. LEE, J. The money sought to be recov- ered in this case was the property of the plaintiff's testator in the form of bank notes, and was handed to defendant (his wife) a short time before his death, for safe-keeping until he should be better, when as he said, he would arrange it for the bank. It re- mained in her possession during his life, and at his death, which took place a few days after, it was still his propertj'. She made no claim to it as hers, during his life; nor, so far as appears, did she dispose of any part of it to her own use or that of her hus- band. After his death the plaintiff, though before he had qualified as executor under the will of his testator, called on the defeud- imt for the money, but she refused to sur- render it, saying that she intended to keep it 1 Irrelevant parts of opiuion omittod. Now as this money was part of the assets of the estate of the testator, it Is clear that the plaintiff is entitled to recover it in some form of action, and in some character either individual or representative. But it is said that if the plaintiff be en- tith'd to recover, he cannot do so in this action, but should have declared on the special case, or in trover anil conversion. I do not think the plaintiff was bound to declare speay over to that other. This action has of late years been greatly extended, becau.se founded on principles of justice; and it now embraces all cases in which the plaintiff has equity and conscience on his side, and the defend- ant is bound by ties of natural justice and equity to refund the money. In such a case, no express promise need be proved, because from such relation between the par- ties the law will imply a debt and give this action founded on the equity of the plain- tiff's case, as it were upon a contract quasi ex contractu as the Roman law expresses it. and upon this debt founds the requisite un- dertaking to pay. Moses v. Macfarlan, 2 Burrows, 1005, 1008, 1012; per Buller, J.. Stratou v. RastaU, 2 Term R. 3G6, 370. Here this money was part of the assets of the plaintiffs testator, and it was the duty of the defendant ex aequo et bono, to pay it over to the plaintiff. Nor do I think the plaintiff was bound to declare in trover and conversion. The mon- ey handed to the defendant by the taetator was in bank notes, and if it be conceded that upon the refusal of the defendant to deliver the same to the plaintiff, trover might be maintained as for a tort it by no means follows thai as.sumpsit could not be brought. There are many cases in which a party aggrieved, who has a clear remedy by action as for a tort, may waive the tort and sue in assumpsit Thus an action against a common carrier is for a tort and sup- posetl crime, but assumpsit will lie for the same cause. Per Lord Mansfield, Hambly V. Trott, Cowp. 371, 375. So if a man takes a horse from another, and brings him back again, an action of trespass may be brought, but the owner may bring assiuupsit for the use and hire of the horse. Id. If a bank- rupt, on the eve of his bankruptcy, fravid- ulently deliver goods to one of his creditoi-s. the assignees may recover the goods in tro- ver, or waive the tort and bring assumpsit Smith V. Hodson, 4 Term R. 211. If a stran- ger takes my goods and delivers them to an- other, a contract may be implied, and I may bring an action of trover for them, or of assumpsit to recover their value. Per Lord Abinger. Bassell v. BeU, 10 Mees. & ■V\'. 350. In this case it was decided that the assignees of bankrupt, who after the CONTRACT AND QUASI-CONTRACT DISTINGUISHED. bankruptcy had delivered goods to the de- fendant to meet an accommodation bill which they were about to give the bank- rupt, might waive the tort and sue in as- sumpsit. So a master whose apprentice has left him and entered into the service of an- other, who persuades him to remain with him after he had found out who he was and from what shop he had deserted, may waive the tort and bring assimipsit against the defendant for the work and labor of the apprentice. Foster v. Stewart. 3 Maule & S. 191. See, also, Curtis v. Bridges, Comb. 450: Eades v. Vandeput 5 East, 39; Lightly T. Clowston, 1 Taunt 112. So if a man take the goods of another and sell them, the own- er may waive the trespass and sue him for money had and received. Gilmore v. Wil- bur, 12 Pick. 120; Foster v. Stewart, 3 Maule & S. 191. See, also, Jones v. Hoar, 5 Pick. 285. Other illustrations may be de- rived from the cases, but I will not stop to give them. I think that in no case could the exercise of the right to elect between an action in tort and assumpsit be more ap- propriate than in this. The bank notes wert received and treated by the testator as mon ey, and as such were received and retained by the defendant, and though trover might lie to recover the notes, the law will imply a promise to pay the amotmt to the plaintiff. -6 3/ CONTRACT AND QUASI-CONTRACT DISTINGUISHED. HEIITZOG T. HERTZOQ. (29 Pa. St. 465.) Supreme Court of Pennsylvania. 1857. Error to court of cominon pleas, Fayette county This suit was brought by John Hertzes to recover from the estate of his fatlior compen- sation for services rendered the latter in his lifetime, and for money lent. The pUiintilT was twenty-one years of age about the year 1825, but continued to reside with his father, who was a farmer, and to labour for him on the farm except one year that he was ab- sent in Virginia, until 1S42, when the plaintiff married and took his wife to his father's, where they continued for some time as he had done before. His father then put him on an- other farm which he owned, and some time afterwards the father and his wife moved in- to the same house with .John, and continued to reside there until his death in 1849. The testimony of Adam Stamm and Daniel Roderick was relied on to prove a contract or agreement on the part of George Hertzog to pay for the services of plaintiff. Adam Stamm affirmed: "John laboured for his father. All worked together. The old man got the proceeds. I know the money from the grain went to pay for the farm. The old man said so. John's sei-vices worth .$12 per month; the wife's worth $1 per week, beside attending to her own family. I heard the old man say he would pay John for the labour he bad done." Daniel Roderick sworn: "John Hertzog re- quested him to see his father about paying liim for his work, which he had done and was doing, and stated that he had frequently spoken to the old man, his father, about it, and he had still put him off. He agreed to see him, and thinks it was in Jime, 1849. Coming from Duncan's Furnace, he spoke to the old man about paying John for his work. He said he intended to make John safe. John spoke to me in the spring of 1848. The old awn died in August, 1849, I think." The plaintiff also proved the services ren- dered by himself and by his wife, and by the declarations of the intestate that he had re- ceived from the plaintiff ?5lX), money that be- longed to the latter's wife, at the time of purchasing a fann in 1847. The court, after the defendant's points were presented, per- mitted the plaintiff to add to his declaration a count on a quantum meruit. The defendant pleaded the statute of lim- itation?, and presented the following points: 1. The court are respectfully requested to charge the jury that where a son, after he arrives at the age of twenty-one years, and continues to live with and work for his father, without any special contract, he cannot "re- cover for wages or sei'vice rendered, from the estate of his deceased parent, unless upon clear and imequiVocal proof, leaving no doubt that the relation between the parties was not the ordinary one of parent and child, but master and servant." 2. That according to the plaintiff's own showing, the .$.">00 claimed by him belonged to the wife of the plaintiff, and, since the act of 1848, is her separate property, and cannot be recovered in this suit, the same having been instituted in \he name of the husljund alone. 3. The plaintiff cannot recover in this ac- tion on a quantum meruit, there being no such count in plaintiff's narr. The court below (Gilmore, P. J.) answered these points as follows: "1. We answer this in the affirmative. It was so ruled in Candor's Appeal, 5 Watts & S. 515. If the plaintiff was working for his father, without a mutual understanding be- tween them that he was to be paid for his labour, he cannot recover wages. "The jury must be satisfied from the evi- dence that it was understood between him and his father that he was to be compensat- ed, not by the way of gift or legacy, but by the payment of wages." Here the court re- ferred to the evidence of Adam Stamm and Daniel Roderick, and said, "From this evi- dence, if you believe it, you may infer such an agreement. "2. If the jury are satisfied from the evi- dence that the S-'OO was in the possession of plaintiff's wife in 1847, and that the defend- ant [decedent] then received it from her, this would be considered the possession of tlie same by the husband, and plaintiff could sue without joining his wife. "3. The court permit the declaration to be amended so as to embrace this point." The jury foimd a verdict for the plaintiff of ?2,203.97, and the court entered judgment thereon. The defendant sued out a writ of error, and assigned the answers of the court below for error. Fuller & Oliphant, for plaintiff in error. Miller & Patterson, for defendant in error. LOWRIE, J. "Express contracts are, where the terms of the agreement are openly uttered and avowed at the time of tlie making; as. to deliver an ox or ten loads of timber, or to pay a state3, and authorities cited. So, it was held that the law will im- ply a promise to pay toll for passing upon a turnpike road, notwithstanding the defendant, at the time of passing, denied his liability and refused payment. Proprietors v. Taylor, G N. II. 4'J'J. In the recent English case of Railway Co. v. Swaffield, L. R. tJ Exch. 132, the defendant sent a horse by the plaintiffs' railway directed to himself at S. station. On the arrival of the horse at S. station, at night, there was no one to meet it, and the plain- tiffs, having no accommodation at the station, sent the horse to a livery stable. The de- fendant's servant soon after arrived and de- manded the horse. He was referred to the livery stable keeper, who refused to deliver the horse except on payment of charges which were admitted to be reasonable. On the next day the defendant came and demanded the horse, and the station master offered to pay the charges and let the defendant take away the horse; but the defendant declined, and went away without the horse, which remain- ed at the livery stable. The plaintiffs after- wards offered to deliver the horse to the de- fendant at S. without payment of any charges, but the defendant refused to receive it unless delivered at his farm, and with payment of a sum of money for his expenses and loss of time. Some months after, the plaintiff's paid the livery stable keeper his charges, and sent the horse to the defendant, who received it; and it was held that the defendant was liable, upon the ground of a contract implied by law. to the plaintiffs for the livery charges thus paid by them. Illustrations might be multiplied, but enongh has been said to show that when a contract I'r promise implied by law is spoken of, a very different thing is meant from a contract in fact, whether express or tacit. The evidence of an actual contract is generally to be found either in some writing made by the parties, or in verbal comruunications which passed be- tween them, or in their acts and conduct con- sidered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a 10 COXTEACT AND QUASI-CONTRACT DISTINGUISHED. mjiihical creation of the law. The law says it shall be taken that there was a promise, when, in point ot fact, there was none. Of course this is not good logic, for the obvious and sutficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation, and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the ob- ligationes quasi ex contractu of the civil law, which seems to lie in the region between contracts on the one hand and torts on the other, and to call for the application of a remedy not strictly furnished either by ac- tions ex contractu, or actions ex delicto. The common law supplies no action of duty, as it does of assumpsit and trespass; and hence the somewhat awkward contrivance of this fiction to apply the remedy of assumpsit where there is no true contract, and no prom- ise to support it. All confusion in this matter might be avoid- ed, as it seems to me, by a suitable discrim- ination in the use of the term "implied con- tract." In the discussion of any subject there is always danger of spending breath and strength about mere words, as well as of falling into error when the same term is used to designate two different things. If the term "implied contract" be used indifferently to denote (1) the fictitious creation of the law spoken of above; (2) a true or actual but tacit contract, — that is, one where a meeting of the minds or mutual understanding is in- ferred as matter of fact from circumstances, no words, written or verbal, having been used; and (3) that state of things where one is es- topped by his conduct to deny a contract, al- though, in fact, he has not made or intend- ed to make one,— it is not strange that confu- sion should result, and disputes arise, where there is no difference of opinion as to the substance of the matter in controversy; whereas, were a different term applied to each,— as, for example, that of legal duty to designate the first; contract, simply, to des- ignate the second; and contract by estoppel, the third, — this difficulty would be avoided. It would of course come to the same thing, in substance, if the first were always called an implied contract, while the other two were otherwise designated in such way as to show distinctly what is meant. This is not always done, and an examination of our own cases would perhaps show that more or less confu- sion has arisen from such indiscriminate use of the term. A better nomenclature is de- sirable. But whatever terms are employed, it is indispensable that the distinction, which is one of substance, should be kept clearly in mind, in order that the principles governing in one class of cases may not be erroneously applied to another. See remarks of Smith, J., in Bixby v. Moore, 51 N. H. 402, and au- thorities cited at page 404. Much may doubtless be said against sup- plying a remedy for the enforcement of a plain legal right 'by so rude a device as a legal fiction." Mame's Ancient Law, 2G. But at this time of day that Is a matter for the consideration of the legislature rather than the courts. The remedy of indebitatus as- sumpsit can hardly be abolished in that large class of cases where it can only be sustained by resorting to a fiction until some other is furnished to take its place. It by no means follows that this plaintifl: is entitled to recover. In the first place, it must appear that the necessaries furnished to the defendant were furnished in good faith, and with no purpose to take advantage of her unfortunate situation. And tipon this ques- tion the great length of time which was al- lowed to pass without procuring the appoint- ment of a guardian for her is a fact to which the jury would undoubtedly attach much weight. Its significance and importance must, of course, depend very much on the circum- stances under which the delay and omission occurred, all of which will be for the jury tu consider upon the question whether every- thing was done in good faith towards the de- fendant, and with an expectation on the part of the plaintiff's intestate that he was to be paid. Again, the jury are to consider whether the support for which the plaintiff now seeks to recover was not furnished as a gratuity, with no expectation or intention that it should be paid for, except so far as compensation might be derived from the use of the defend- ant's share of the farm. And upon this point the relationship existing between the parties, the length of time the defendant was there in the family without any move on the part of Enoch F. Sceva to charge her or her estate, the absence (if such is the fact) of an ac- count kept by him wherein she was charged with her support and credited for the use and occupation of the land,— in short, all the facts and circumstances of her residence with the family that tend to show the intention or ex- pectation of Enoch P. Sceva with respect to being paid for her support,— are for the jury. Munger v. Munger, 33 N. H. 581; Seavey v. Seavey, 37 N. H 125; Bundy v. Hyde, 50 N. H. 116. If these services were rendered, and this support furnished, with no expectation on the part of Enoch P. Sceva that he was to charge or be paid therefor, this suit cannot be maintained; for then it must be regarded substantially in the light of a gift actually accepted and appropriated by the defendant, without reference to her capacity to make a contract, or even to signify her acceptance by any mental assent. In this view, the facts stated in the case will be evidence for the jury to consider upon the trial; but they do not present any ques- tion of law upon which the rights of the par- ties can be determined by the court. Case discharged. CO]SrTRACT AND QUASI-CONTRACT DISTINGUISHED. 11 O'BRIEN T. YOUNG.i (95 N. y. 428.) (^ourt of Appeals of New York. April 15, 1884. Appeal from order of the peneral term of the supreme court, in the First judicial de- partment, made January 8, 1884, which af- firmed an order of special term restraining the sheriff of the county of New York from collecting, upon a judgment issued to him herein, interest at a greater rate than six per cent, after January 1, 1880. Judsmont was perfected in this action in favor of plaintiff and against defendants February 10, 1877. Execution thereon was issued to the sheriff November 19, 1883, in- structing the sheriff to collect the amount thereof, with interest at the rate of seven per cent, from the date of tlie enti-j- of judg- ment. Lawrence & Waehner, for appellants. Lu- cien Birdseye, for respondent. EARL, J. By the decided weight of au- thority in this state, where one contracts to pay a principal sum at a certain future time with interest, the interest prior to the ma- turity of the contract is payable by virtue of the contract, and thereafter as damages for the breach of the contract. Macomber v. Dunham, 8 Wend. 550; United States Bank V. Chapln, 9 N. Y. 471; Hamilton v. Van Rensselaer, 43 N. Y. 244; Ritter v. Phillips, .^3 N. Y. 586; Railroad Co. v. Moravia, 61 Barb. 180. And such is the rule as laid down by the federal supreme court. Brewster v. Wakefield, 22 IIow. 118; Burnhisel v. Fir- man, 22 Wall. 170; Holden v. Trust Co., 100 U. S. 72. The same authorities show that after the maturity of such a contract, the in- terest is to be computed as damages accord- ing to the rate prescribed by the law, and not according to that prescribed in the con- tract If that be more or less. But when the contract provides that the interest shall be at a specified rate until the principal shall be paid, then the contract rate governs until payment of the principal, or until the contract is merged in a judg- ment. And where one contracts to pay mou- ed on demand "with interest," or to pay money generally "with interest," without specifying time of payment, the statutoi-y rate then existing becomes the contract rate and must govern until payment, or at least until demand and actual default, as the par- ties must have so intended. Paine v. Cas- well, GS Me. 80; Eaton v. Boissonnault, 67 Me. 540. If, therefore, this judgment, the amount of which is by its terms payable with in- terest, is to be treated as a contract— as a bond executed by the defendants at its date, then the statutoi*y rate of Interest existing at the date of the rendition of the judgment is to be treated as part of the contract and 1 Opinion of Andrews, J., omitted. must be paid by the defendants according to the terms of the contract, and thus the plain- tiff's contention is well founded. But is a judgment, properly speaking, for the purposes now in hand, a contract? I think not. The most important elements of a contract are wanting. There is no aggre- gatio mentium. The defendant has not vol- untarily assented. All the authorities assort that the existence of parties legally capable of contracting is essential to every contract, and yet they ncnrly all agree that judgments onterole "with interest." Here the judgment contains no direction as to Interest. The reasoning of the oi)inion is applicable to this ca.se and is, therefore, read to justify my vote in this. Since writing the opinion, we have decided in the case of Sanders v. Rail- way Co., 94 N. Y. G41. the law to be as laid down in the first paragraph of the opinion. The orders of the general and special terms should be reversed and the motion granted, without costs in either court, the parties having so stipulated. 14 M THRUSTON V. THORNTON (1 Gush. 89.) Supreme Judicial Court of Massachuse' Suffolk and Nantucket. March Term, 18-iS. OFFER AND ACCEFTAXCE. This was an action of assumpsit to recover compensation for services, rendered by the plaiutiflf as a broker, in selling or aiding to sell certain real estate belonging to the de- fendant. The declaration contained the com- mon money counts, a bill of particulars, and a special count. The cause was tried in the court of common pleas, before Wells, C. J. The bill of particulars set forth a claim by the plaintiff against the defendant of the sum of one thousand dollars and interest, as a commission of five per cent., "as per con- tract, for selling his farm called 'Wood Park,' in Vii-ginia. which was sold to Marcus Bull, Esq.," through the plaintiff's agency, for twenty thousand dollars. In the special count, the plaintiff alleged, in substance, that, in consideration that at the request of the defendant, he would find a purchaser for and sell and dispose of the defendant's farm above mentioned, the de- fendant promised to pay him five per cent, of the amount for which he should sell the same, as a commission for his serv- ices; and that he, confiding in the defend- ant's promise, did find a purchaser for the estate, for the sum of twenty thousand dol- lars, to whom the defendant sold and con- veyed the same, and received therefor the said sum. The plaintiff claimed to recover— First, as upon a special contract, on the part of the defendant, to pay him a commission of five per cent, on the sum for which the estate should be sold; or, secondly, if that ground should not be sustained by the evidence, then, a reasonable compensation for his services in effec-ting the sale. In order to prove the special agreement relied on by the plaintiff, he introduced the deposition of Gary Selden, who testified: "That some time in the fall of 1840, or early in the following winter, the defendant was In the city of Washington, and placed in the hands of the deponent a written schedule of certain real and other property, valued at twenty-two thousand one hundred and thirty dollars, with a view of having the same sold; that some short time thereafter the defend- ant came into the oflUce occupied jointly by the deponent and the plaintiff', on which oc- casion the deponent, at the request of the plaintiff, introduced the latter to the defend- ant, when the sale of the estate alluded to became the subject of conversation; that in the course of the conversation the plaintiff in- quired of the defendant if he would pay a commission for effecting a sale of the prop- erty, to which the defendant replied that he would pay a commission to any person who could effect a sale of the property at the price mentioned in the schedule; and that this deponent caused a copy of the schedule to be taken for the use of the plaintiff." It was also testified, on behalf of the plain- tiff", that he did recommend the estate to Mar- cus Bull, who called upon the defendant, and purchased the estate for the sum of twenty thousand five hundred dollars. It appeared in evidence that the plaintiff was an attorney at law, and, in connection with his business as an attorney, acted as a real-estate broker. But it did not appear that at the time of the interview, or at any time prior to the sale of the estate, the de- fendant knew that the plaintiff ever acted as a broker, or that he was informed that the purchaser was sent to him by the plaintiff. The defendant contended, and introduced evidence tending to show, that no such con- versation as was testified to by Selden ever took place, and that he never gave the plain- tiff" any written description of the estate. In relation to the special count the judge instructed the jury that if they should be sat- isfied that the conversation testified to by Selden took place between these parties, then, in order to determine whether the defendant was liable in the present action, it would be necessary for the jury to understand what constituted a legal and binding contract; and that, so far as the matters in difference in this case were concerned, it was only neces- sarj' for them to fix distinctly in their minds the foUowuig part of the definition of a legal contract: "A contract implies the assent of two minds. This idea is often expressed by the phrase, Tt takes two to make a bargain.' Or, to state it in other words, it must be understood between the parties that the one party has made an offer, and that the other has ac- cepted it. If one party should make an of- fer, and the other party should not accept it, there would be no contract. There is sometimes an apparent exception to this rule, but it is only apparent. Thus, if a person should put forth an advertisement, offering a reward to any one who would recover lost property, this oft"er is to no one in particular and no one accepts it at the time it is made. But the meaning of the offer is that it is made to whomsoever will act upon it; and it is an implied part of the offer that time shall be afforded to any one who chooses to accept it; and if a person, before the offer is with- drawn, does that which by the terms of the offer will entitle him to the reward, his so acting upon the offer constitutes an accept- ance of it, and the party making the offer is bound to fulfill his promise. But when the parties are face to face^^_to_ccjiiatitute_acon- cepfrtrfiTe5?'w^B?Fe"lt is a part of the agree- ment that time shall be given to the person to whom the offer is made, to determine whether he will accept or not, in which case, the time given makes a part of the offer." NECESSITY FOH OFFER AND ACCEPTANCE. 15 In view of those instructions, the Jury wore directed to inquire whether it was proved that at the interview referred to the minds of the parties met, and they made a lej,'al and binding contract; or whether the transaction was, as contended by the defendant, a loose conversation, not midorstood or intended by them as an agreement; and, as a test, tlie jury were directed to inquire and doterraine whether, when the parties separated, it was understood between them that the plaintiff y should do or attempt anytliing for the de- fendant, in relation to the sale of his estate, In consequence of the conversation which had taken place. The jury, under those instructions, rendered a verdict for the defendant, and the plaintiff thereupon filed exceptions. H. H. Fuller & R. F. Fuller, for plain- tiff, argued that the instructions were wrong as to the necessity of a formal acceptance of an offer made when the parties were face to face; and that the jury should have been instructed that, if the plaintiff acted in conse- quence of the defendant's offer, the former was entitled to recover. Williams v. Car- wardine, 5 Car. & P. 56G, 574, 4 Barn. & Adol. 621 ; Lancaster v. Walsh, 4 Mees. & W. 16, 22; Murray v. Currie, 7 Car. & P. 584; Horford v. Wilson, 1 Taunt. 12; 20 Am. Jur. 19. The defendant took less than the price stipulated, but that was no reason why the plaintiff should be deprived of his commis- sion, J.* Dana, for defendant, cited RoUe, Aur. "Actioh of the Case" pi. 1; Com. Dig. "Ac- tion of the Case upon Ass.," T, 2. WILDE, J. On a careful examination of the instructions to the jury, the court have been unable to find any misdirection, or any remarks tending to mislead the jury in their consideration of the evidence. Certainly the remarks of the judge as to the definition of a legal contract, and as to the necessary requisites to constitute such a contract, were, we think, clearly correct. The jury were then directed to consider the evidence, and to decide whether, "at the interview between the parties, their minds met, and they made a legal and binding contract; or whether the transaction, as was insisted by the defend- ant, was a loose conversation, not under- stood or intended by them as an agreement." We are of opinion that this direction was en- tirelj' correct. It was for the jury to decide what was the meaning and intention of the parties. The conversation was loose and in- definite, and the jury, we think, might well find, as they did, that no contract was in fact made. But, however this may be, it was a question of fact for the jury, and we think they were in no respect misdirected. Exceptions overruled. It) ^ OFFER AND WHITE V. CORLIES.j^W^^ (46 N. Y. 467.) / ^ Conrt of Appeals of New York. Nov. 20, 1S71. Appeal from First judicial district. The action was for an alleged breach of contract. The plaintiff was a builder with his place of business in Fortieth street, New York City. The defendants were merchants at 32 Dey street. In September, 1S65, the defendants fur- nished the plaintiff with specifications, for fitting up a suit of offices at 57 Broadway, and requested him to make an,estiiuate of the cost of doing the work. Un September 2Sth the plaintiff left his es- timate with the defendants, and they were to consider upon it, and inform the plaintiff of their conclusions. On the same day the defendants made a change in their specifications and sent a copy of the same, so changed, to the plaintiff, for his assent under his estimate, which he as- sented to by signing the same and returning it to the defendants. On the day following, the defendants' book- keeper wrote the plaintiff the following note: "New York, September 29th. Upon an agreement to finish the fitting up of offices .57 Broadway in two weeks from date, you can begin at once. The writer will call again, probably between five and six this p. ni. W. H. K., for J. W. Corlies & Co., 32 Dey street" No reply to this note was ever made by the plaintiff; and on the next day the same was countermanded by a second note from the defendants. Immediately on receipt of the note of Sep- tember 29th. and before the countermand was forwarded, the plaintiff commenced a perform- ance by the purchase of lumber and begin- ning work thereon. And after receiving the countermand, the plaintiff brought this action for damages for a breach of contract. The court charged the jury as follows: "From the contents of this note which the plaintiff received, was it his duty to go down to Dey street ("meaning to give notice of as- .sent) before commencing the work. In my opinion it was not. He had a right to act upon this note and commence the job, and that was a binding contract between the parties." To this defendants excepted. L. Henry, for appellants. The manife.station of assent must be such as tends to give notice to proposing party. Mactier v. Frith, G Wend. 103; Vassar v. Camp, 11 N. Y. 441. Mr. Field, for respondent It was not necessary that the fact of con- currence by one party should be made known to the other. Mactier v Frith, 6 Wend. 103, ACCEPTANCE. 117. An agent acting with apparent authori- ty binds the principal. Story, Ag. § 443; Clark V. Bank. 3 Duer, 241; President, etc.» of Mechanics' Bank v. New York & N. H. R. Co., 13 N. Y. 599; Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125; Dunning v Roberts, 35 Barb. 46.3; Cornell v. :Masten, Id. 157; Whitbeck v. Schuy- ler, 44 Barb. 469. FOLGER, J. We do not think that the jury found, or that the testimony shows that there was any agreement between the parties before the written comnunication of the de- fendants of September 30 was received by the plaintiff. This note did not make an agreement. It was a p roposition, and must have bee n accepted by._th"g^pr ainti tr_jifilore" either party w as b ouiid in__contract to. the other. The only overt action which is claim- """ed DJT the plaintiff as indicating on his part an acceptance of the offer, w^as the purchase of the stuff necessary for the work, and com- mencing work as we understand the testi- mony, upon that stuff. We understand the rule to be that where an offer is made by one party to another when they are not together, the acceptance of it by that other, must be manifesto 1 by some appropriate act It does not need that the acceptance sl]all come to the knowledge of the one making the offer before he shall be bound. But though the manifestation need not be brought to his knowledge before he becomes bound, h e is not bound if, J-liat man- ifestation is not put in a Dro ner way to be in t h'eTis ual "course of even ^, in some re asonnlile t Lme comfflum(J5tgg"Toniim^ Thus' a letter received by mail containing a proposal may be answered by letter by mail containing the acceptance. And in general as soon as the answering letter is mailed, the contract is concluded. Though one party does not know of the acceptance, the manifestation thereof is put in the proper way of reaching him. In the case in hand the plaintiff determined to accept. But a mental determination not indicated by .speech, or put in course of indi- cation by act to the other party, is not an acceptance which will bind the other. Nor does an act which in itself is no indication of an ac*ceptance, become such because accom- panied by an unevinced mental determina- tion. Where the act uninterpreted by con- current evidence of the mental purpose ac- companying it is as well referable to one state of facts as another, it is no indication to the other party of an acceptance, and does not operate to hold him to his offer. Conceding that the testimony shows that the plaintiff did resolve to accept this offer, he did no act which indicated an acceptance of it to the defendants. He, a carpenter and builder, purchased stuff for the work. But It was stuff as fit for any other like work. He began work upon the stuff, but as he would have done for any other like work. There was nothing in liis thought formed but not NECESSITY FOR COMMUNICATION. 17 uttered, or in his acts that indicated or set in motion an indication to the defendants of his acceptance of their offer, or which could necessarily result therein. But the charge ot the learned judge was fairly to be understood by the jury as laying down the rule to them, that the plaintiff need not indicate to the defendants bis acceptance of their offer; and that the purchase of stuS H0PK.8EL.CAS.CONT. — 2 and working on it after receiving the note, made a binding contract betsveen the p.-.r- tles. In this we think the learned judge feU into error. The judgment appealed from must be re- venged and a new trial ordered, with costs to abide the event of the action. AH concur, but ALLEN, J., not voting. Judgment reversed, and new trial ordered. IS OrrEK AND ACCEPTANCE. PARKEK V. SOUTH EASTERN RY. CO. GABELL V. SAME. (2 C. P. Div. 416.) Court of Appeal. April 25, 1877. Actions against the South Eastern Rail- way Company for the value of bags and their contents lost to the plaintiffs respec- tively by the negligence of the company's servants. The plaintifE in each case had deposited a bag in a cloak-room at the defendants' rail- way station, had paid the clerk 2d., and had received a paper ticket, on one side of which was written a number and a date, and were printed notices as to when the oflace would be opened and closed, and the words "See back." Un the other side were printed sev- eral clauses relating to articles left by pas- sengers, the last of which was, "The com- pany will not be responsible for any package exceeding the value of £10." In each case the plaintiff on the same day presented his ticket and demanded his bag, and in each case the bag could not be found and had not been since found. Parker claimed £24. 10s. as the value of his bag, and Gabell "claimed £50. IGs. The company in each case plead- ed that they had accepted the goods on the condition that they would not be responsible for the value if it exceeded £10; and on the trial they relied on the words printed on the back of the ticket, and also on the fact that a notice to the same effect was printed and hung up in the cloak-room. Each plaintiff gave evidence and denied that he had seen the notice, or read what was printed on the ticket. Each plaintiff admitted that he had often received such tickets, and knew there was printed matter on them, but said that he did not know what it was. Parker said that he imagined the ticket to be a receipt for the money paid by him; and Gabell said he supposed it was evidence of the company having received the bag, and that he knew that the number on it corresponded with a number on his goods. Parker's case was tried at Westminster on the 27th of February, 1876, before Pollock, B.; and GabeU's case was tried at Westmin- ster on the 15th of November, 1876, before Grove, J. The questions left in each case by the judge to the jury were: (1) Did the plaintiff read or was he aware of the special condition upon which the articles were de- posited? (2) Was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or make himself aware of the condi- tion? The jury in each case answered both ques- tions in the negative, and the judge there- upon directed judgment to be entered for the plaintiff for the amount claimed, re- serving leave to the defendants to move to enter judgment for them. In Parker's rase the defendants moved to enter judgment, and also obtained from the common pleas division an order nisi foi a new trial, on the ground of misdirection. The order was discharged, and the motion was refused by the common pleas division. See 1 C. P. Div. 618, where the words printed on the ticket are set out at length. The defendants appealed. In GabeU's case the defendants applied to the common pleas division for the order nisi for a new trial on the ground of misdirection, but the court refused to grant the order. The defendants then moved for judgment and also obtained from the court of appeal an order nisi for a new trial, on the ground of misdirection. The cases were heard together. Feb. 6, 7. Mr. Benjamin. Q. C, and Mr. Bremner, for the defendants The plaintiffs sue on an alleged contract to keep the goods safely, but there is no con- tract if one party means one thing and the other party means, something else; there m;ist be a consensus ad idem. G. W. Digby, solicitor for Parker. M. J. Pyke, solicitor for GabelL W. R. Stevens, solicitor for the company. BRAMWELiL., J. A. Not so. One of the parties may so conduct himself as to lead the other to believe that there was a contract. A man cannot make such a claim saying that he took the ticket, but took care not to read what was printed on it, though he knew that it related to the goods deposited. The plaintiff proposes to the company that they shall do something for him, and they an- swer, "There are our terms." He had often taken similar tickets, and knew that they had on them printed matter, and he knew that he must give blck the ticket in order to get back his goods. If the porter had said, "Read this," the plaintiff could not recover if he asserted merely that he had not read what was printed; and where is the differ- ence? Henderson v. Stevenson, L. R, 2 H, L. Sc. 470, was not a similar case. There the passenger took the ticket in a hurry, and knew nothing about it. Besides, in that case the company wera common carriers, bound to take the passenger on terms fixed by law; but the company are under no obli- gation to keep a cloak-room, and they have an absolute right to prescribe the terms on which they will accept articles left there. They are not even warehousemen, for they wiU only take small articles for the con- venience of passengers. It is absurd to hold that for a charge of 2d. a company ought to become liable to make good a loss of perhaps hundreds of pounds. Harris v. Railway Co., 1 Q. B. Div. 515, was a stronger case. A man is not compelled to read a contract in order to be boimd by it Here the plaintiff took the ticket, and that implies an assent. The ticket contains the terms of NECESSITY FOR COMMUNICATION. 19 the contract, and the plaintiff cannot, by re- fusing to read it, force on the company a different contract Lewis v. M'Kee, L. R. 4 Exch. 581. The company has not acted so as to Induce the plaintiff to believe that they would be liable. Cornish v. Abington, 4 Hurl. & N. 540, 28 L. J, Exch. 2G2. And if the porter has done so he has exceeded his autliority. The verdict ought to be entered for the defendants, or if not, then a new trial should be directed. Mr. Prentice, Q. C, and D. Brynmor Jones, for Gabell. The question Is whether a man is bound by the contents of a printed paper merely put into his hands. It could not be pretend- ed that any one would be bound by the terms printed on o turnpike ticket or a thea- tre ticket. The plaintiff says he thought the ticket was a voucher for the goods, as it was, and, if so, why should he read it? It is not a question of law, but one of common sense, to be left to the jury. The company were clearly bailees for hire, and as such are prima facie liable, and it is for them to shew that they are not. F. Pollock (Prentice, Q. C, with him), for Parker. Suppose that the company had put on the ticket that if the goods were not redeemed within twenty-four hours they would be for- feited, or could njt be redeemed except on payment of £5, would that have bound the plaintiff? It is no answer that that would be unreasonable, if the ticket is said to con- stitute a conti*act; nor is a depositor obliged to know what would be reasonable. To say that he is at peril obliged to read this ticket, is to say that the general law of bailments is so absurd that a bailor must exi)ect spe- cial conditions. No one can be expected to know that a receipt or a mere voucher given in order to secure the return of the article to the proper person contains special conditions. The questions were rightly put to the jury, and the verdict ought to stand. Mr. Bremner, in reply. If the companies are for 2d. to incur in- definite liabilities, they will shut up the cloak-rooms. It is admitted that the terms specified on the ticket are reasonable, and it is needless to speculate on what would be the consequence if the temis were unreason- able. The depositor had plenty of time to read what was printed, and if he did not he must take the consequences. Cur. adv. vult. The judgments of MELLISH and BAG- GALLAY, JJ., were read by BRAMWELL, L. J. MELLISH, L. J. In this case we have to consider whether a person who deposits In the cloak-room of a railway company, articles which are lost through the carelessness of the company's servants, is prevented from recov- ering, by a condition on the back of the ticket, that the company would not be lialjle for the loss of goods exceeding the value of £10. It was argued on behalf of the railway company that the company's servants were only au- thorized to receive goods on behalf of the com- pany upon the terms contained in the ticket; and a passage from Mr. Justice Blackburn's judgment in Harris v. Railway Co., 1 Q. B. Div., at page 533, was relied on in support of their contention: "1 doubt much— inasmuch as the railway company did not authorize their servants to receive goods for deposit on any other terms, and as they had done nothing to lead the plaintiff to believe that they had given such authority to their serv- ants so as to preclude them from asserting, as against her, that the authority was so lim- ited—whether the true rule of law Is not that the plaintiff must assent to the contract in- tended by the defendants to be authorized, or treat tlje case as one in which there was no contract at all, and consequently no lia- bility for safe custody." I am of opinion that this objection cannot prevail. It is clear that the company's servants did not exceed the au- thority given them by the company. They did the exact thing they were authorized to do. They were authorized to receive articles on deposit as bailees on behalf of the com- pany, charging 2d. for each article, and de- livering a ticket properly filled up to the per- son leaving the article. This is exactly what they did in the present cases, and, whatever may be the legal effect of what was done, the company must, in my opinion, be bound by it. The directors may have thought, and no doubt did think, that the delivering the ticket to the person depositing the article would be sufficient to make him bound by the condi- tions contained in the ticket, and if they were mistaken in that, the company must bear the consequence. The question, then, is whether the plaintilf was bound bj* the conditions contained in the ticket. In an ordinary case, where an ac- tion is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that ho has not read the agreement and does not know its contents. The parties may, howevei", reduce their agreement into writ- ing, so that the writing constitutes the sole evidence of the agreement, without signing it: but in that case tliere must be evidence in- dependently of the agreement itself to prove that the defendant has assented to it. In that case, also, if it is proved that the de- fendant has assented to the writing consti- tuting the agreement between the parties, it is, in the absence of fraud, Immaterial that the defendant had not read the agreement and did not know its contents. Now If, in the course of making a contract, one party de- 20 OFFER AND ACCEPTANCE. livers to another a paper containing -nriting, and the party receiving the paper knows that the paper contains conditions which the party- delivering it intends to constitute the con- tract, I have no doubt that the party receiv- ing the paper does, by receiving and keeping it, assent to the conditions contained in it, although he does not read them, and does not know what they are. I hold, therefore, that the case of Harris v. Ilailway Co., 1 Q. B. Div. 515, was rightly decided, because in that case the plaintiff admitted, on cross-examina- tion, that he believed there were some con- ditions on the ticket. On the other hand, the case of Henderson v. Stevenson, L. K. 2 H. L. Sc. 470, is a conclusive authority that if the person receiving the ticket does not know that there is any writing upon the back of the ticket, he is not bound by a condition printed on the back. The facts in the cases before us differ from those in both Henderson v. Steven- son, L. R. 2 H. L. Sc. 470, and Harris v. Rail- way Co., 1 Q. B. Div. 515, because in both the cases which have been argued before us, though the plaintiffs admitted that they knew there wag writing on the back of the ticket, they swore not only that they did not read it, but that they did not know or believe that the writing contained conditions, and we are to consider whether, under those circumstan- ces, we can lay down as a matter of law either that the plaintiff is bound or that he is not bound by the conditions contained in the ticket, or whether his being bound depends on some question of fact to be determined by the jury, and if so, whether, in the present ease, the right question was left to the juiy. Now, I am of opinion that we cannot lay down, as a matter of law, either that the plaintiff was bound or that he was not bound by the conditions printed on the ticket, from the mere fact that he knew there was writ- ing on the ticket, but did not know that the writing contained conditions. I think there may be cases in which a paper containing writing is delivered by one party to anothei in the course of a business transaction, where it would be quite reasonable that the party receiving it should assume that the writing contained la it no conditions, and should put it in his pocket unread. For instance, if a person driving through a turn-pike gate re- ceived a ticket upon paying the toll, he might reasonably assume that the object of the ticket was that by producing it he might be free from paying toll at some other turn-pike gate, and might put it in his pocket unread. On the other hand, if a person who ships goods to be carried on a voyage by sea re- ceives a bill of lading signed by the master, he would plainly be bound by it, although afterwards in an action against the shipown- er for the loss of the goods, he might swear that he had never read the bill of lading, and that he did not know that it contained the terms of the contract of carriage, and that the shipowner was protected by the exceptions contained in it. Now the reason why the per- son receiving the bill of lading would be bound seems to me to be that in the great ma- jority of cases persons shipping goods do know that the bill of lading contains the terms of the contract of carriage; and the shipowner, or the master delivering the bill of lading, is entitled to assume that the person shipping goods has that knowledge. It is, however, quite possible to suppose that a per- son who is neither a man of business nor a lawyer might on some particular occasion ship goods without the least knowledge of what a bill of lading was, but in my opinion such a person must bear the consequences of his own exceptional ignorance, it being plain- ly impossible that business could be carried on if every person who delivers a bill of lad- ing had to stop to explain what a bill of lad- ing was. Now the question we have to consider is whether the railway company were entitled to assume that a person depositing luggage and receiving a ticket in such a way that he could see that some writing was printed on it would understand that the writing con- tained the conditions of contract, and this seems to me to depend upon whether people in general would in fact, and naturally, draw that inference. The railway company, as it seems to me, must be entitled to make some assumptions respecting tlae person who de- posits luggage with them. I think they are entitled to assume that he can read, and that he understands the English language, and' that he pays such attention to what he is about as may be reasonably expected from a person in such a transaction as that of de- positing luggage in a cloak-room. The rail- way company must, however, take mankind as they find them, and if what they do is suf- ficient to intorm people in general that the ticket contains conditions, I think that a par- ticular plaintiff ought not to be In a better position than other persons on account of his exceptional ignorance or stupidity or careles.s- ness. But if what the railway company do is not sufficient to convey to the minds of peo- ple in general that the ticket contains condi- tions, then they have received goods on de- posit without obtaining the consent of the persons depositing them to the conditions lim- iting their liability. I am of opinion, there- fore, that the proper direction to leave to the jury in these cases is, that if the person re- ceiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that If he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writ- ing upon it, was, in the opinion of the jury, reasonable notice that the writing coutiiiued conditions. NECESSITY FOR COMIIL'NICATIOX. 21 I have lastly to consider whether the direc- tion of the learned judge was correct, name- ly, "Was the plaintiff, under the circumstan- ces, under any obligation, in the exercise of reasonable and proper caution, to read or to make liimself aware of the conJition?" I think that this direction was not strictly accu- rate, and was calculated to mislead the Jury. The plaintiff was certainly under no obliga- tion to read the ticket, but was entitled to leave it unread if he pleased, and the ques- tion does not appear to me to direct the at- tention of the jury to the real question, name- ly, whether the railway company did what was reasonably sufHcient to give the plain- tiff notice of the condition. On the whole, I am of opinion that there ought to be a new trial. BAGGALLAY, L. J. A railway company, in the conduct of their cloak-room business, become bailees for reward of the articles de- posited with them for safe custody; and, as such, in the absence of any special contract constituted by the delivery and acceptance of a ticket or otherwise, are responsible to the deposirurs for the full value of the deposited articles, if unable to restore them when de- manded. This clearly would be the nature of the contract if no ticket were delivered, as occasionally happens. In the present cases the question for con- sideration is whether the ordinary contract of bailment, which would have resulted from the receipt by the company of the plaintiff's prop- erty and the payment by the plaintiffs of the prescribed charges, has been modilied by the delivery of the tickets which were admitted- ly accepted by the plaintiffs, though, as they allege, in ignorance of the pui-port or effect of the printed statements endorsed upon tliem. If the practice of issuing cloak-room tickets, containing statements of conditions intended to be binding on depositors, had become gen- eral, it might well be that a person deposit- ing his property and accepting a ticket, even though himself ignorant of the practice, must ' be treated as aware of it, and as bound to ascertain whether any such conditions were stated on the ticket delivered to him; but no such practice has been shewn or even sug- gested in either of the present cases, nor does it, so far as I am aware, exist. The pninary pui-pose of the ticket is to identify the articles deposited and the party entitled to reclaim them, but, practically, and by reason of the recognised practice of not delivering the ticket until the prescribed charge has been paid, it becomes a voucher for the payment. So far as these purposes are concerned, the depositor has no occasion to look at the ticket until he desires to reclaim his property, and if the tickets were delivered for these pur- poses onlj-, the ordinary contract of bail- ment would be in no respect modified by the deliveiy of them; and in the absence of any such general practice as that to which I have alluded, it appears to me that the depositor Is prima facie entith d to regard the ticket as de- livered to ;:im for these purposes only, and that he is in no way put upon inquiry whether the company have any further or ulterior ob- ject. But it is, of course, open to the com- pany to show, not only that they intended that the ticket, which was delivered to the depositor primarily for his own convenience and protection, should also indicate to him certain terms and conditions in favour of the company, by which he was to be bound, but also that he was aware of such intent ii>n at the time when he accepted the ticket and that ue agreed to give effect to it. The onus of proof is, however, upon the company In re- spect of these matters. Of the intention of the company to modify the contract of bail- ment in the cases under consideration by lim- iting their liability, there can "be no question. I also think that, if the plaintiffs were aware, or ought, for reasons which will be indicated presently, to be treated as being aware of the intention of the company at the time when they respectively received their tickets, and did not express their dissent, they .must be regarded as having agreed to give effect to them. The question then remains whether the plaintiffs were respectively aware, or ought to be treated as aware, of the intention of the company thus to modify the effect of the ordi- nary contract Now as regards each of the plaintiffs, if at the time when he accepted the ticket, he, either by actual examination of it, or by rea- son of previous experience, or from any other cause, was aware of the terms or puriDoit or effect of the endorsed conditions, it can hard- ly be doubted that he became bound h\ them. I think also that he would be equally boimd if he was aware or had good reason to be- lieve that there were upon the ticket state- ments intended to affect the relative rights of himself and the company, but intentionally or negligently abstained from ascertaining whether there were any such, or from mak- ing himself acquainted with their puiqiort But I do not think that in the absence of any such knowledge or information, or good rea- son for belief, he was under any obligation to examine the ticket with the view of as- certaining whether there were any such state- ments or conditions upon it Whether the plaintiff' had any such knowl- edge or information, or good reason for be- lief, is a question of fact to be determined by the evidence. Had the determination of those questions of fact in the cases under consid- eration rested with myself, I should upon the evidence, have decided in favour of the plaintiffs in both cases; but having had the opportunity of reading the proposed judg- ments of both my colleagues, I feel the force of the observations made by them as to the directions given to the juries by the judges who tried the actions. I do not think that the second question was ouite right in form, though I think that hau it been put in tlie OFFEli AND ACCEPTANCE. form suggested by Lord Justice Mellish, which appears to me to be the more correct form, the same result would have followed. It is possible, however, chough 1 think hard- ly probable, that the juries were misled by the form of the quertions, and, under all the circumstances, the best coui-se to pursue will be. I think, to direct a new trial. BRA^MWELL, L. J. It is clear that if the plaintiffs in these actions had read the con- ditions on the tickets and not objected, they would have been bound by them. No point was or could be made that the contract was complete before the ticket was given. If, then, reading the conditions, they would have been bound, it follows that, had they been told they were the conditions of the con- tract and invited to read them, and they had refused, saying they were content to take them whatever they might be, then also they would be bound by them. So, also, would they be if they were so told, and made no answer, and did nothing, for in that case they would have tacitly said the same thing, viz., that they were content to take them, whatever they might be. It follows, further, that if they knew that what was on the tickets was the contract which the defend- ants were willing to enter into, they, the plaintiffs, would be bound, though not told they were the conditions; for it cannot make a difference that they were not told what by the hypothesis they knew already. We have it, then, that if the plaintiffs knew that what was printed was the contract which the defendants were willing to enter into, the plaintiffs, not objecting, are bound by its terms, though they did not inform themselves what they were. The plaintiffs have sworn that they did not know tnat the printing was the contract, and we must act as though that was true and we believed it, at least as far as entering the verdict for the defendants is concerned. Doe? this make any differ- ence? The plaintiff- knew of the printed matter. Both admit they knew it concerned them in some way, though they said they did not know what it was; yet neither pre- tends that he knew or believed it was not the contracu Im either pretends he thought it had nothing to do with the business in hand; that he thought it was an advertise- ment or other matter unconnected with his deposit of a parcel at the defendants' cloak- room. They admit that, for anything they knew or believed, it might be, only they did not know or believe it was, the contract. Their evidence is very much that they did not think, or, thinking, did not care about It. Now they claim to charge the company, and to have the benefit of their own indiffer- ence. Is this justV Is it reasonable? Is It the way in which any other business Is al- lowed to be conducted? Is it even allowed to a man to "think " "judge," "guess," '\:a;iu:'.' ' a matter, without informmg himself when he can, and then when his "thought," "judg- ment," "guess," or "chance" turns out wrong or unsuccessful, claim to impose a burthen or duty on another which he could not have done had he informed himself as he might? Suppose the clerk or porter at the cloak-room had said to the plaintiffs, "Kead that; it con- cerns you," and they had not read it, would they be at liberty to set up that though told to read they did not because they thought something or other? But what is the difference between that case and the present? Why is there printing on the pa- per, except that it may be read? The put- ting of it into their hands was equivalent to saying, "Kead that." Could the defendants practically do more than they did? Had they not a right to suppose either that the plain- tiff's knew the conditions, or that they were content to take on trust whatever is printed? Let us for the moment forget that the de- fendants are a caput lupinum— a railway company. Take any other case — any case of money being paid and a paper given by the receiver, or goods bought on credit and a pa- per given with them. Take also the cases put by Byles, J., in Van Toll v. Railway Co., 12 C. B. (N. S.) at page 87; 31 L. J. (C. P.) 241. Has not the giver of the paper a right to suppose that the receiver is content to deal on the terms in the paper? What more can be done? Must he say, "Read that?" As I have said, he does so in effect when he puts it into the other's hands. The truth is, peo- ple are content to take these things on trust. They know that there is a form which is al- ways used. They are satisfied it is not un- reasonable, because people do not usually put um'easonable terms into their contracts. If they did, then dealing would soon be stopped. Besides, unreasonable practices would be known. The very fact of not looking at the paper shows that this confidence exists. It is asked: What if there was some unreason- able condition, as, for instance, to forfeit £1000 if the goods were not removed in forty- eight hours? Would the depositor be bound? I might content myself by asking: Would he be, if he were told "our conditions are on this ticket," and he did not read them. In my judgment, he would not be bound in either case. I think there is an implied understand- ing that there is no condition unreasonable to the knowledge of the party tendering the doc- ument and not insisting on its being read; no condition not relevant to the matter in hand. I am of opinion, therefore, that the plaintiffs, having notice of the printing, were in the same situation as though the porter had said, "Read that; it concerns the matter in hand;" that if the plaintiffs did not read it, they were as much bound as if they had read it and had not objected. The difficulty I feel as to what I have writ- ten is that it is too demonstrative. But, put In practical language, it is this: The defend- ants put into the hands of the plaintiff a pa- per with printed matter on it, whicli in all good sense and rea.son must be supposed to NECESSITY FOR COMMUNICATION. 23 relate to the matter In hand. This printed matter the plaintiff sees and must either read it, and object if he does not agree to it, or If he does read it and not object, or does not read it, he must be held to consent to its terms. Therefore, on the facts, the jud^'('s should have directed verdicts for the defend- ants. The second question left, in my .:)pinion. should not have been left, and was calculated to mislead the jury. It might equally have been put if the plaintiffs had been told that the conditions of the contract were on the ticket, and had been asked to read them. It would then manifestly have been a question of law, and so it is now. Besides, by its terms it was calcula.ted to mislead the jury. The question was whether the plaintiff was under any obligation, in the exercise of rea- sonable and proper caution, to read the ticket. Obligation to whom? Not to himself, as peo- ple sometimes say, for there is no such duty, or, if any, be may excuse himself from per- forming it If it means whether a reasonably and properly cautious person might omit to read it, I say, "Yes." At least I hope so. Such a person might well take the matter on trust, but then he ought to be content to take the consequences of so doing. But he . has no right, having omitted to inform him- self, and having had the means of doing so, to make a claim which he might have fairly made had he had no such means of inform- ing himself. The question probably means "obligation to the defendants." That is, had the plaintiff a right to omit to do so, and then make his claim? I repeat that the same question might be put if he were told that the print contained the conditions of the contract, and then it would obviously be a question of law as it Is now. The question is imperfect The question whether of law or fact is, "Can a man properly omit to inform himself, be- ing able to do so, and then justly claim, when he could not have claimed if he had inform- ed himself?" The latter part of the question is left out The authorities are in favour of this view. Stewart v. Railway Co., 3 HurL & C. 135, 33 L. J. Exch. 100; Van Toll v. Railway Co., 12 C. B. (N. S.) 75, 31 L, J. (C. P.) 241. There is the opinion of Willes, J., in Lewis v. McKee, L. R. 4 Exch. 58, and, lastly, the case of Henderson v. Stevenson, L. R. 2 H. L. Sc. 470. I need not say, if t thought tliat that case supported the judg- ment I should defer to it, but I cannot un- derstand how that can be supposed. The plaintiff there said that he had never looked at the ticket or seen the notice on it, no one having directed his attention to either, and on this the house proceeded. The lord chan- cellor says: "Your lordships may take it as a matter of fact that the respondent was not aware of that which was printed on the back of the ticket" Here the plaintiffs knew there was printed matter, and must have known it concerned them. The lord chancellor adds: "The passenger receiving the ticket in that form, and without knowing of anything be- yond, must be taken to have made a contract according to that which was expressed and shew'n to him." I am of opinion therefore, that the judgment should be reversed, and be given for the defendants. If not though I think the question one of law, still, if it is of fact it has not been left to the jury, and there should be a new trial. The possible question of fact is that set forth in the judg- ment of the Lord Justice MELLISH, with a penisal of which he has favoured me. But I repeat I think it is a question of law. I also think the verdict against evidence, and that on that ground there should be a new triaL No one can read the evidence of the plaintiffs in this case without seeing the mischief of encouraging claims so unconscientious as the present Orders absolute for new trials. 24 OFFER AND ACCEPTANCE. ELIASON et al. v. HENSHAW.yl (4 Wheat. 225.) ''^'^ '*^ liR^ Supreme Court of the United States. Feb. Term. 1819. Error to circuit coui't for the District of Columbia. Jones & Key, for plaintiffs In error. Mr. Swann, for defendant in error. WASHINGTON, J. This is an action, brought by the defendant in error, to recov- er damages for the non-performance of an agreement, alleged to have been entered in- to by the plaintiffs in error, for the purchase of a quantity of flour at a stipulated price. The evidence of this contract given in the com't below, is stated in a bill of exceptions, and is to the following effect: A letter from the plaintiffs to the defendant, dated the 10th of February, 1813, in which they say: "Cap- tain Conn infoi-ms us that you have a quan- tity of flour to dispose of. We are in the practice of pxirchasing flour at all times, in Georgetown, and will be glad to serve you, either in receiving your flour in store, when the markets are difll, and disposing of it when the markets will answer to advantage, or we will purchase at market price when de- livered; If you are disposed to engage two or three hundred barrels at present, we will give you $9.50 per barrel, deliverable the first water in Georgetown, or any service we can. K you should want an advance, please write lis by mail, and will send you part of the money in advance." In a postscript they add: "Please write by return of wagon whether you accept our offer." This letter was sent from the house at which the writer then was, about two miles from Harpers' Ferry, to the defendant at his mlU, at Mill Creek, distant about 20 mUes from Harper's Ferry, by a wagoner then employed by the defendant to haul flour from his mill to Har- per's Ferry, and then about to return home with his wagon. He delivered the letter to the defendant on the 14th of the same month, to which an answer, dated the succeeding day, was written by the defendant, address- ed to the plaintiffs at Georgetown, and dis- patched by a mail which left Mill Creek on the 19th, being the first regular mail from that place to Georgetown. In this letter the writer says: "Your favor of the 10th inst was handed me by Mr. Chenoweth last even- ing. I take the earliest opportunity to an- swer it by post. Your proposal to engage 300 barreLs of flour, delivered in Georgetown, by the first water, at $9.50 per barrel, I ac- cept, and shall send on the flour by the first boats that pass down from where my flour Is stored on the river; as to any advance, will be unnecessary— payment on delivery Is aH that is required." On the 25th of the same month, the plain- tiffs addressed to the defendant an answer to the above, dated at Georgetown, in which they acknowledge the receipt of it, and add: "Not having heard from you before, had quite given over the expectation of getting your flour, more particularly as we requested an answer by return of wagon the next day, and as we did not get it, had bought all we wanted." The wagoner, by whom the plaintiffs' first letter was sent, informed them, when he re- ceived it, that he should not probably return to Harper's Ferry, and he did not in fact return in the defendant's employ. The flour was sent down to Georgetown, some time in March, and the delivery of it to the plaintiffs was regularly tendered and ref used. Upon this evidence, the defendants in the court below, the plaintiffs in error, moved that court to instruct the jury, that, if they believed the said evidence to be true, as stat- ed, the plaintiff in this action was not enti- tled to recover the amount of the price of th«s 300 barrels of flour, at the rate of $9.50 per barrel. The court being divided in opinion, the instruction prayed for was not given. The question is, whether the court below ought to have given the instruction to the jury, as the same was prayed for? K they ought, the judgment, which was in favor of the plaintiff in that court, must be reversed. It is an undeniable principle of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation up- on the former, until it is accepted by the latter, according to the terms in which the offer was made. Any qualification of, or de- parture from, those terms, invalidates the of- fer, unless the same be agreed to by the per- son who made it UntU the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation upon either. In this case, the plaintiffs in error offered to purchase from the defendant two or three hundred barrels of flour, to be delivered at Georgetown, by the first water, and to pay for the same $9.50 per baiTel. To the let- ter containing this offer, they required an answer by the return of the wagon, by which the letter was dispatched. This wagon was, at that time, in the service of the defend- ant, and employed by him in hauling flour from his mill to Harper's Ferry, near to which place the plaintiffs then were. The meaning of the writers was obvious. They could easily calculate by the usual length of time which was employed by this wagon, in travelling from Harper's Ferry to MiU Creek, and back again with a load of flour, about what time they should receive the desired answer, and, therefore, it was entirely unim- portant, whether it was sent by that, or an- other wagon, or in any other manner, pro- vided it was sent to Harper's Ferry, and was not delayed beyond the time which was ordinarily employed by wagons engaged in havding flour from the defendant's mill to Harper's Feriy. Whatever imcertainty there might have been as to the time when the an- MANNER OF COMMUNICATION. 25 swer would be received, there was none as to the place to which it was to be sent; this was distinctly indicated by the mode pointed out for the conveyance of the answer. The place, therefore, to which the answer was to be sent, constituted an essential part of the plaintiff's offer. It appears, however, from the bill of ex- ceptions, that no answer to this letter was at any time sent to the plaintiffs, at Harper's Ferry. Their offer, it Is true, was accepted by the terms of a letter addressed George- town, and received by the plaintiffs at that place; but an acceptance communicated at a place different from that pointed out by the plaintiffs, and forming a part of their pro- posal, Imposed no obligation binding upon them, unless they had acquiesced In it, which they declined doing. It Is no argument, that an answer was re- ceived at Georgetown; the plaintiffs in er- ror had a right to dictate the terms upon which they would purchase the flour, and, unless they were complied with, they were not bound by them. All their arrangements may have been made with a view to the circumstance of place, and they were the only judges of its importance. There was, therefore, no contract concluded beto-een these parties; and the court ought, therefore, to have given the instruction to the jury, which Avas asked for. Judgment reversed. Cause remanded, with directions to award a venire facias de novo. 26 OFFER AXD ACCErTANCE FOGG T. PORTSMOUTH ATHENEUmL (44 N. H. 115.) fi^!l^ Supreme Judicial Court of New Hampshira./ALJt Merrimack. Dec, 1862. %XiAir^^ Assumpsit, to recover the following account to the writ annexed, namely: The Proprietors of the Portsmouth Atheneum to Fogg & Hadley, Dr. 1S60. Jan 1. To the Independent Dem- ocrat from vol. 5, No. i, to vol. 15. No. 35, inclusive ?21 37 Interest on same 12 00 ?33 37 Also to recover the sum of forty dollars, for the paper called the Independent Democrat, for the space of eleven years before the date of the writ, furnished, sold and delivered to the defendants at their request, by the plain- tiffs, at two dollars per year, and for interest on money due and owing from the defendants to the plaintiffs before the date of the writ The writ was dated July 2G, 1861. Plea, the general issue, with the statute of limita- tions. The case was submitted to the decision of the court upon the following agreed state- ment cf facts: The defendants are a corporation whose ob- ject is the support of a library and public reading-room, at which latter a large number of newspapers are taken. Some are sub- scribed and paid for by the defendants; oth- ers are placed there gratuitously by the pub- lishers and others; and some are sent there apparently for advertising purposes merely, and of course grattiitously. The Independent Democrat newspaper was furnished to the defendants, through the mail by its then publishers, from vol. 3, No. 1 (May 1, 1847). On the 29th day of November, 1818, a bill for the paper, from voL 3, No. 1 (May 1, 1847), to vol. 5, No. 1 (May 1, 1849), two years, at $1.5C per year, was presented to the defendants by one T. H. Miller, agent for the theu pubUshers, for payment. The de- fendants objectecl that they had never sub- scribed for the paper, and were not bound to pay for it They at first refused on that ground to pay for it, but finally paid the bill to said Miller, and took upon the back there- of a receipt in the following words and fig- ures: "Nov. 29, 1848. The within bill paid this day, and the paper is henceforth to be discontinued. T. H. Miller, for Hood «& Co." Hood & Co. were the publishers of the pa- per from May 1, 1847, until February 12, 1S49, when that firm was dissolved, and the paper was afterward published by the present plain- tiffs. The change of publishers was announ- ced, editorially and otherwise, in the paper of February 15, 1849, and the names of the new publishers were conspicuously inserted in each subsequent number of the paper; but it did not appear that the change was actually known to Mr. Hatch, the secretary and treas- urer of the corporation, who settled the above- named bill, and who continued in the office till January, 1850. -4.The plaintiffs had na knowledge of the ' agreement of the agent of Hood & Co. to dis- continue the paper, as set forth in the receipt of November 29, 1848, until notified thereof by the defendants, after they had furnished the paper to the defendants for a year or more; the books of Hood & Co., which came into their hands, only showing that the de- fendants had paid for the paper in advance, to May 1. 1849. After the payment of the bill and the giv- ing of the receipt above recited, the paper continued to be regularly forwarded by its publishers, through the mail, to the defend- ants, from the date of said receipt until May 1, 1849, the expiration of the period named in said bill; and was in like manner forward- ed from May 1, 1849, to January 1, 1860, or from vol. 5, No. 1, to vol. 15, No. 35, in- clusive, the period claimed to be recovered for in this suit; and w?s during aU that time constantly taken from the post-office by the parties employed by the defendants to take charge of their reading-room, build fires, &c., and placed in their reading-room. Payment was several times demanded during the lat- ter period, of the defendants, by an agent or agents of the plaintiffs; but the defendants refused to pay, on the ground that they were not subscribers for the paper. Conspicuously printed in each number of the paper sent to and received by the de- fendants, were the following "Terms of Publication: By mail, express, or carrier, $1.50 a year, in advance; ?2 if not paid within the year. No paper discontinued (except at the option of the pubUshers) un- less all arrearages are paid." The questions arising upon the foregoing case were reserved and assigned to the de- termination of the whole court. Fowler & Chandler, for plaintiffs. W. H. Rollins and A. R. Hatch, for defendants. NESMITH, J. There is no pretense upon, the agreed statement of this case that the defendants can be charged upon the ground that they were subscribers for the plaintiffs' newspaper, or that they were liable in conse- quence of the existence of any express con- tract whatever. But the question now is, have the defendants so conducted as to make themselves liable to pay for the plaintiffs' newspaper for the six years prior to tlie date of the plaintiffs' writ, imder an implied con- tract raised by the law and made applicable to this case? If the seller does in any case what is usual, or what the nature of the case makes convenient and proper to pass the effectual control of the goods from himself to the buy- er, this is always a delivery. In like man- ner, as to the question of acceptance, we must inquire into the intention of the buyer, as evinced by his declarations and acts, the COMMUNICATION BY CONDUCT. 27 nature of the goods, and the circumstances of the case. If the buyer Intend to retain pos- session of the goods, and manifests this in-.^ tention by a suitable act, it is an actual ac- ceptance of them; or this intention may be manifested by a great variety of acts in ac- cordance with the varying circumstances of each case. 2 Pars. Gont. 325. Again, the law will imply an assumpsit, and the owner of goods has been permitted to re- cover in this form of action, where they have been actually applied, appropriated and con- verted by the defendant to his own bcnelicial use. Helepen v. Campbell, 2 W. Bl. 827; Johnson v. Spiller, Doug. 1G7; Hill v. Davis, 3 N. II. 3S4, and the cases there cited. Where there has been such a specific ap- propriation of the property in question, the propertj' passes, subject to the vendor's lien for the price. Robae v. Thwaites, 6 Barn. & C. 392. In Bavin v. Jenas, 7 Car. & P. G17, the question was whether the defendant had purchased and accepted a fire engine. It was a question of fact for the jury to determine. Lord Abinger told the jury, if the defendant had treated the fire engine as his own, and dealt with it as such, the plaintiff was enti- tled to recover for its price. And the jury so found. 2 Greenl. Ev. § lOS. In Weatherby v. Bonham, 5 Car. & P. 228, the plaintiff was publisher of a periodical called the Racing Calendar. It appeared that he had for some years supplied a copy of that work, as fast as the numbers came out, to Mr. Westbrook. Westbrook died in the year 1820. The defendant, Bonham, succeeded to Westbrook's property, and went to live in his house, and there kept an inn. The plaintiff, not knowing of Westbrook's death, continued to send the numbers of the Calendar, as they were published, by the stage coach, directed to Westbrook. The plaintiff proved by a servant that they were received by the de- fendant, and no evidence was given that the defendant had ever offered to return them. The action was brought to recover the price of the Calendar for the years lS2o and 1S2C. Talford. for the defendant, objected that there never was any contract between the plaintiff and the present defendant, and that the plain- tiff did not know him. But Lord Tenterden said: "If the defendant received the books and used them, i think the action is main- tainiible. Where books come addressed to the deceased gentleman whose estate has come to the defendant, and he keeps the books, I think, therefore, he is clearly liable in this form of action, being for goods sold and de- livered." The preceding case [Pembroke v. Epsom, 44 N. H. 113] is very similar, in many re- spects, to the case before us. Agreeably to the defendants' settlement with Hood & Co., their contract to take their newspaper ex- pired on the 1st of May, 1S49. It does not appear that the fact that the paper was then to stop was communicated to the present plaintiffs, who had previoiisly become the pro- prietors and pubhshers of the newspaper es- tablishment; having the defendants' name en- tered on their books, and having for some weeks before that time forwarded numbers of tlieir newspaper, by mail, to the defendants, they, after the first day of May, continued so to do up to January 1, 18G0. During this period of time the defendants were occasion- ally requested, by the plaintiffs' agent, to pay their bill. The answer was, by the defend- ants, "We are not subscribers to your news- paper." But the evidence is, the defendants used, or kept the plaintiffs' books, or news- papers, and never offered to return a nimiber, as they reasonably might have done, if they would have avoided the liability to pay for them. Nor did they ever decline to t;ike the newspapers from the post-office. If the defendants would have avoided the liability to pay the plaintiffs, they might rea- sonably have returned the paper to the plain- tiffs, or given them notice that they declined to take the paper longer. We aie of the opinion that the defendants have the right to avail themselves of the stat- ute of limitations. Therefore, the plaintiffs can recover no more of their accoimt than is embraced in the six years prior to the date of their writ, and at the sum of $2 per year, with interest, from date of writ, or the date of the earliest demand of the plaintiffs' claim upon the defendants. 28 OFFEB AND ACCEPTANCE. DAY V. CATON. / y (119 Mass. 513.) I ^ V Supreme Judicial Court of Massachusetts, 9 Y Suffolk. Feb. 29, 1876. dT Contract to recover the value of one-half of a brick party waU built by the plaintiff. The defendant requested the judge to nile that: "(1) The plaintiff can recover in this case only upon an express agreement. (2) If the jurj- find there was no express agreement about the wall, but the defendant knew that the plaintiff was building upon land in which the defendant had an equitable interest, the defendant's rights would not be affected by such knowledge, and his silence and subse- quent use of the wall would raise no implied promise to pay anything for the wall." The judge refused so to rule, but instructed the jury as follows: "A promise would not be implied from the fact that the plaintiff, with the defendant's knowledge, built the wall and the defendant used it, but it might be implied from the conduct of the parties. If the jury find that the plaintiff undertook and complet- ed the building of the wall with the expecta- tion that the defendant would pay him for it, and the defendant had reason to know that the plaintiff was so acting with that expecta- tion, and allowed him so to act without ob- jection, then the jury might infer a promise on the part of the defendant to pay the plain- tiff." There was a verdict for the plaintiff. De- fendant alleged exceptions. F. W. Kittredgfc, for plaintiff. H. D. Hyde & M, F. Dickinson, Jr., for defendant DEVENS, J. The ruling that a promise to pay for the wall would not be implied from the fact that the plaintiff, with the defend- ant's knowledge, built the wall, and that the defendant used it, was substantially in ac- cordance with the request of the defendant, and is conceded to have been correct. Chit. Cont (11th Ed.) 86; Wells v. Banister, 4 Mass. 514; Knowlton v. Plantation No. 4, 14 Me. 20; Davis v. School Dist., 24 Me. 349. The plaintiff, however, contends that the presiding judge incorrectly ruled that such promise might be inferred from the fact that the plaintiff undertook and completed the building of the wall with the expectation that the defendant would pay him for it, the de- fendant having reason to know that the plain- tiff was acting with that expectation, and al- lowed him thus to act without objection. The fact that the plaintiff expected to be paid for the work would certainly not be suffi- cient of itself to establish the existence of a contract, when the question between the par- ties was whether one was made. Taft v. Dickinson, 6 Allen, 553. It must be shown that in some manner the party sought to be charged assented to it. If a party, however, voluntarily accepts and avails himself of val- uable services rendered for his benefit, when he has the option whether to accept or reject them, even if there is no distinct proof that they were rendered by his authority or re- quest, a promise to pay for them may be in- ferred. His knowledge that they were val- uable, and his exercise of the option to avail himself of them, justify this mference. Ab- bot V. Hermon, 7 Greenl. 118; Hayden v. Madison, 7 Greenl. 76. And when one stands by in silence, and sees valuable services ren- dered upon his real estate by the erection of a structure (of which he must necessarily avail himself afterwards in his proper use thereof), such silence, accompanied with the knowledge on his part that the party render- ing the services expects payment therefor, may fairly be treated as evidence of an ac- ceptance of it, and as tending to show an agreement to pay for it The maxim, "Qui facet consentire videtur," is to be construed indeed as applying only to those cases where the circumstances are such that a party is fairly called upon either to deny or admit bis liability. But if silence may be interpreted as assent where a propo- sition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak. Lamb v. Bunce, 4 Maule & S. 275; Conner v. Hackley, 2 Mete. (Mass.) 613; Preston v. Linen Co., 119 Mass. 400. If a person saw day after day a laborer at work in his field doing services, which must of necessity inure to his benefit, knowing that the laborer expected pay for his work, when it was perfectly easy to notify him if his serv- ices were not wanted, even if a request were not expressly proved, such a request, either previous to or contemporaneous with the per- formance of the services, might fairly be in- ferred. But if the fact was merely brought to his attention upon a single occasion and cas- ually, if he had little opportunity to notify the other that he did not desire the work and should not pay for it or could only do so at the expense of much time and trouble, the same inference might not be made. The cir- cumstances of each case would necessarily determine whether silence with a knowledge that another was doing valuable work for his benefit, and with the expectation of payment, indicated that consent which would give rise to the inference of a contract. The question would be one for the jury, and to them it was properly submitted in the case before us by the presiding judge. Exceptions overruled. COMMUNICATION BV CONDUCT. 29 A f^ ROYAL INS. CO. v. BEATTY. (12 Atl. 607, 119 Pa. St. G.) Supreme Court of Pennsylvania. Fob. 20, 1888. Error to court of common pleas, Philadel- phia county. This was an action by William Beatty against the Koyal Insurance Company, on a policy of tire insurance, averrinj; a renewal, and that it was in force at the time of the fire. There was a verdict and judgment for plaintiff. Defendant brings error. R. C. McMurtrie, for plaintiff in error. (1) If the facts as stated by the witnesses entitled a jury to infer that an assent was given, or that the plaintiff's agent was enti- tled to presume an assent, the judgment must be affirmed. It may even be conceded that if the defendant beard the request and said nothing, he may be within the rule relied on by the court. But what is the rule? It ap- plies only where there is a duty to speak, and silence misleads. It is impossible to as- sert that If I do not hear and understand, I am compelled to speak on the pain of being concluded. Hearing and understanding are presupposed in the maxim- (2) The plaintiff did not pretend to assert that the defendant heard him. He implies, of course, that he supposed he had; but when the denial came it was necessary to do some- thing more than rely on the presumption that a remark had been heard. It was quite clear on the defendant's side that his agent had done nothing and said nothing to make a contract. He had told his master there was none made; that he had not been asked to make it, and his master had acted on this. (3) Was there any evidence that wananted the inference that this was mistaken or false? No one asserted that he had heard, or that the speaking was such that he must have heard. And after the denial and proof cor- roborative that defendant had acted on the footing that there was no contract, there was no attempt to give any fact that could justify the assumption of the unproved and denied fact that a request to renew or bind was heard and known to have been made. (4) Then, the case being that the plaintiff must affirmatively establish the making of the contract, and there being nothing more than a statement of a request not followed by any act or by any assertion that the request was so made as to be certainly heard, in judging between the two the court seemed to suppose it was a mere question of which was to be believed, not seeing that if both spoke the truth, which was at least possible, the plaintiff had certainly failed to prove his case. George H. Earle, Jr., and Richard P. White, for defendant in error. (1) It was established beyond controversy that it was the settled custom of the defend- ant company, in cases where a policy was about to expire, to continue It upon notifica- tion that the insured wauled it "bound." The broker's clerk testiliod positively that he had the policy so continued. The insurance clerk admitted all the facts stated by the witness, except that the particular policies in suit were named. The sole question, therefore, was the simple one whether it was the broker's clerk or the insurance clerk, who gave the con-ect testimony as to what took place. (2) As it is conceded that, if the policies in suit were mentioned so as to be heard, ac- cording to the custom a verbal assent was not necessary, it seems unnecessary to quote authorities to show that the circumstances as testified to warranted the jury in finding a contract. In Chisman v. Count, 2 M:lu. & G. 307, several items were submitted, and, as in the present case, a part only were men- tioned and objected to. Held, that there was evidence of a binding contract as to the bal- ance. Admission by silence also, as well as admission by speech, may have a contractual force, and may bind as effectually as may words. When such silent admissions so oper- ate as to put the actor in a specific attitude to other persons, by which such other per- sons are induced to do or omit to do a partic- ular thing, then he is estopped from subse- quently denying that he occupied such posi- tion, and is compelled to make good any losses which such other parties may have sustained by his course in this relation. Whart. Cont. § 6. GREEN, J. We find ourselves unable to discover any evidence of a contractual rela- tion between the parties to this litigation. The contract alleged to exist was not found- ed upon any writing, nor upon any words, nor upon any act done by the defendant. It was founded alone upon silence. While it must be conceded that circumstances may exist which will impose a contractual obliga- tion by mere silence, yet it must be admitted that such circumstances are exceptional in their character, and of extremely rare occur- rence. We have not been furnished with a perfect instance of the kind by the counsel on either side of the present case. Those cited for defendant in error had some other element in them than mere silence which contributed to the establishment of the rela- tion. But, in any point of view, it is diffi- cult to understand how a legal liability can arise out of mere silence of the party sought to be affected, unless he was subject to a duty of speech, which was neglected, to the harm of the other party. If there was no duty of speech, there could be no harmful omission arising from mere silence. Take the present case as an illustration. The alleged contract was a contract of fire insurance. The plaintiff hold two policies against the defendant, but they had expired before the loss occurred, and had not Iteen formally re- newed. At the time of the fire tJie plain,tiff BO OFFEK AND ACCEPTANCE. held no policy against the defendant. But he claims that the defendant agreed to con- tinue the operation of the expired policies by what he calls "binding" them. How does he prove this? He calls a clerli who took the two policies in question; along with other policies of another person, to the agent of the defendant to have them renewed, and this is the account he gives of what took place: "The Royal Company had some policies to be renewed, and I went in and bound them. Question. State what was said and done. Answer. I went into the office of the Royal Company, and asked them to bind the two policies of Mr. Beatty expiring to-morrow. The Court. Who were the policies for? A- For Mr. Beatty. The Court. That is your name, is it not? A. Yes, sir. These were the policies in question. I renewed the poli- cies of Mr. Priestly up to the 1st of April. There was nothing more said about the Beat- ty policies at that time. The Court What did they say? A. They did not say anything, but I suppose that they went to their books to d-o it. They commenced to talk about the night privilege, and that was the only subject discussed." In his further examination he was asked: "Question. Did you say anythmg about those policies [Robert Beatty's] at that time? Answer. No, sir; I only spoke of the two policies for William Beatty. Q. What did you say about them? A. I went in and said, 'Mr. Skinner, will you renew the Beatty policies, and the night privilege for Mr. Priestly?' and that ended it. Q. Were the other companies bound in the same way? A. Yes, sir; and I asked the Royal Company to bind Mr. Beatty." The foregoing is the whole of the testimony for the plaintiff as to what was actually said at the time when it is al- leged the policies were bound.. It will be perceived that all that the witness says is that he asked the defendant's agent to bind the two policies, as he states at first, or to renew them, as he says last. He received no answer; nothing was said, nor was any- thing done. How is it possible to make a contract out of this? It is not as if one de- clares or states a fact in the presence of an- other, and the other is silent. If the decla- ration imposed a duty of speech on peril of an inference from silence, the fact of silence might justify the inference of an admission of the truth of the declared fact. It would then be only a question of hearing, which would be chiefly, if not entirely, for the jury. But here the utterance was a question, and not an assertion; and there was no answer to the question. Instead of silence being evidence of an agreement to do the thing re- quested, it is evidence, either that the ques- tion was not heard, or that it was not in- tended to comply with the request. Espe- cially is this the case when, if a compliance was intended, the request would have been followed by an actual doing of the thing re- quested. But this was not done; how, then, can it be said it was agreed to be done? There is literally nothing upon which to base the inference of an agreement, upon such a state of facts. Hence the matter is for the court, and not for the jury; for, if there may not be an inference of the controverted fact, the jury must not be permitted to make it. What has thus far been said relates only to the effect of the non-action of the defend- ant, either in responding, or doing the thing requested. There remains for consideration the effect of the plaintiff's non-action. When he asked the question whether defendant would bind or renew the policies, and ob- tained no answer, what was his duty? Un- doubtedly, to repeat his question until he ob- tained an answer; for his request was that the defendant should make a contract with him, and the defendant says nothing. Cer- tainly, such silence is not an assent in any sense. There should be something done, or else something said, before it is possible to assume that a contract was established. There being nothing done and nothing said, there is no footing upon which an inference of agreement can stand. But what was the position of the plaintiff? He had asked the defendant to make a contract with him, and the defendant had not agreed to do so; he had not even answered the question whether he would do so. The plaintiff knew he had obtained no answer, but he does not repeat the question; he, too, is silent thereafter, and he does not get the thing done which he asks to be done. Assuredly, it was his duty to speak again, and to take further action, if he really intended to obtain the defendj^nt's as- sent; for what he wanted was something af- firmative and positive, and without it he has no status. But he desists, and does and says nothing further. And so it is that the whole of the plaintiff's case is an unanswered re- quest to the defendant to make a contract with the plaintiff, and no further attempt by the plaintiff to obtain an answer, and no ac- tual contract made. Out of such facts it is not possible to make a legal inference of a contract. The other facts proved, and of- fered to be proved, but rejected, improperly as we think, and supposed by each to be con- sistent with his theory, tend much more strongly in favor of the defendant's theory than of the plainti&"'s. It is not necessary to discuss them, since the other views we have expressed are fatal to the plaintift''s claim. Nor do I concede that if defendant heard plaintiff's request, and made no an- swer, an inference of assent should be made; for the hearing of a request, and not answer- ing it, is as consistent, indeed more consist- ent, with a dissent than an assent. If one is asked for alms on the street, and hears the request, but makes no answer, it certainly cannot be inferred that he intends to give them. In the present case there is no evi- dence that defendant heard the plaintiff's re- quest, and, without hearing, there was of course no duty of speech. Judgment re- versed. COMMUNTICATION BY CORRESPONDENCE. 31 DUNLOP et aL v. HIGGINS et aLi '1/ (1 H. L. Cas. 381.) •^ Feb. 24, 1848. This was an appeal against a decree of the court of session, made under the following circumstances: Messrs. Dunlop & Co. were Iron masters in Glasgow, and Messrs. Ilig- gius & Co. were iron merchants in Liverpool. Messrs. Higgins had written to Messrs. Dun- lop respecting the price of iron and received the following answer: "Glasgow, 22d Jan- uary, 1845. We shall be glad to supply you with 2000 tons, pigs, at Go shillings per ton, net, delivered here." Messrs. Iliggins wrote the following reply: "Liverpool, 25th Janu- ary, 1845. You say 65s. 382 net, for 2000 tons pigs. Does this mean for our usual four mouths' bill? Please give this infor- mation in course of post, as we have to de- cide with other parties on Wednesday next." On the 28th Messrs. Duulop wrote, "Our quotation meant 65s. net, and not a four months' bill." This letter was received by Messra. Higgins on the 30th of January, and on the same day and by post, but not by the first post, of that day, they dispatch- ed an answer in these terms: "We will take the 2000 tons pigs you offer us. Your letter crossed ours of yesterday, but we shall be glad to have your answer respecting the ad- ditional 1000 tons. In your first letter you omitted to state any tei-ms; hence the de- lay." This letter was dated 31st January, It was not delivered in Glasgow until 2 o'clock p. m. on the 1st of February; and on the same day Messrs. Dunlop sent the fol- lowing reply: "Glasgow, 1st February, 1845. We have your letter of yesterday, but are sorry that we cannot now enter the 2000 tons pig iron, our offer of the 28th not hav- ing been accepted in course." Messrs. Hig- gins wrote on the 2d February to say that they had erroneously dated their letter on the 31st January; that it was really written and posted on the 30th, in proof of which they referred to the post mark. They did not, however, explain the delay which had taken place in its delivery. The iron was not furnished to them, and, having risen very rapidly in the market, the question whether there had been a complete contract between these parties was brought before a court of law. Messrs. Higgins instituted a suit in the court of session for damages as • for breach of contract. The defence of Messrs. Dunlop was that, their letter of the 28th, offering the contract, not having been answered in due time, there had been no such acceptance as would convert that offer into a lawful and binding contract; that their letter having been delivered at Liver- pool before eight o'clock in the morning of the SOlli of January, Messrs. Higgins ought, according to the usual practice of merchants, to have answered It by the first post, which 1 Irrelevant parts of opinion omitted. left Liverpool at three o'clock p. ra. on that day. A letter so dispatched would be due in Glasgow at two o'clock p. m. on the 31st of January. Another post left Liverpool for Glasgow every day at one o'clock a. m., and letters to be dispatched by that post must be put into the office during the preceding evening, and if any letter had been sent by that post on the morning of the 31st it must have been delivered in Glasgow in the regu- lar course of post at eight o'clock In the morning of the 1st of February. As no comnmnication from Messrs. Higgins arriv- ed by either of these posts, Messrs. Dunlop contended that they were entitled to treat their offer as not accepted, and that they were not bound to wait until the third post delivered in Glasgow at two o'clock p. m. of Saturday, the 1st of February, at which time Messrs. Higgins' letter did actxially arrive, before they entered into other contracts, the taking of which would disable them from performing the contract they had offered to Messrs. Higgins. The cause came before Lord Ivory as lord ordinary, who directed an issue, which he settled in following terms: "Whether, about the end of January, 1845, Messrs. Iliggins purchased from Messrs. Dunlop 2000 tons of pig iron at the price of 65s. per ton, and whether Messrs. Dunlop wrongfully failed to deliver the same, to the damage, loss, and injury of the pur- suers? Damages laid at £6000." This is- sue was tried before the lord justice general, when it appeared that the letter of Messrs. Higgins accepting the offer was written on the 30th; that it was posted a short time after the closing of the bags for the dispatch at three o'clock p. m. on that day, and con- sequently did not leave Livei-pool till the dispatch at one o'clock in the morning ol the 31st; that in consequence of the slippery state of the roads the bag then sent did not arrive at Warrington till after the departm-t of the down train that ought to have con- veyed it, and that this circumstance occa- sioned it to be delajed beyond the ordinary hour of delivery The lord justice general told the jury "that he adopted the law as duly expoundetl in the case of Adams v. Lindsell, 1 Barn. & Aid. 681. and which is as follows: 'A., by a letter, offers to sell to B. certain specified goods, receiving an answer by return of post, the letter being misdirect- ed. The answer notifying the acceptance of the offer arrived two days later than it ought to have done. On the day following that when it would have arrived if the orig- inal letter had been properly directed, A. sold the goods to a third person,' and in M'hich it was held 'that there was a contract binding the parties from the moment the oft'er was accepted, and that B. was entitled to recover against A. in an action for not completing his contract.' " The counsel for Messrs. Dunlop tendered the following exceptions: The first excep- OFFER AND ACCEPTANCE. tion related to evidence, and alleged "that no evidence to show that the letter purport- ing to be dated on the 31st was reaUy writ- ten on the 30th of January ought to have been admitted." The other exceptions re- lated to the charge, and were as follows: (2) In so far as his lordship directed the juiy in point of law that if Messrs. Higgins posted their acceptance of the offer in due time according to the usage of trade, they are not responsible for any casualties in the post-olEce establishment. (3) In so far as his lordship did not direct the jury in point of law that if a merchant malies an offer to a party at a distance by post-letter requiring to be answered within a certain time, and no answer arrives with- in such time as it should arrive if the party had written and posted his letter within the time allowed, the offerer is free, though the answer may have been actually written, and posted in due time, if he is not proved to be aware of accidental circumstances prevent- ing the due arrival of the answer. (4) In so far as his lordship did not direct the jury m point of law that in the case above supposed, if an answer arrives, bear- ing a date beyond the time limited as above for making answer, and arrives by a mail and is delivered at a tune corresponding to such date, the offerer is entitled to consider himself free to deal with the goods as his , own, either to sell or to hold if he be not in the knowledge that the answer received was truly written of an earlier date, and de- layed in its arrival by accident. (5) In so far as his lordship did not direct the jury in point of law that in case of fail- ure to deliver goods sold at a stipulated price and immediately deliverable the true measure of damage is the difference between the stipulated price and the market price on or about the day the contract is broken, or at or about the time when the purchaser might have supplied himself. These exceptions were afterwards argued before the judges of the First division, who pronounced an interlocutor disallowing the exceptions, and that interlocutor was the subject of the present appeal. Mr. BetheU and Mr. Anderson, for appel- lants. The question raised in this case Is one of considerable importance, and the decision of It in accordance with the judgment of .the court below will have the effect of reuderiug the acceptance of contracts a matter oi' doubt and uncertainty. If the decision of the judges of the court of session is right, a con- tract is complete when the acceptance of the offer to enter into it is posted, although such acceptance may not reach the person who made the offer tUl long after the time at which by the usage of trade he is entitled to expect it. Such a decision, if iinreversed, wiU leave the person making an offer under the necessity of waiting for an indefinite time in order to know whether his offer has been accepted. During aU this time he will be restrained frora freely dealing with his own property. The exceptions here ought to have been sustained by the court. The first of them relates to the evidence offered at the trial. That evidence was improperly admitted. The court ought not to have received evi- dence to contradict a written document. When a letter is sent to a party, he has a right to assume that it is properly written, and is entitled to rely on its contents. He is at least entitled to do so as against the writer of the letter. The writer is not at liberty to show those contents to be errone- ous. At all events he is not at liberty to do so iif ter the person receiving it has acted up- on it, and thus to affect the rights of that party, and to give himself rights to which, if the letter had been correctly written, he would not have been entitled. To admit such evidence is to unsettle all the rules of business, and to prevent commercial men acting with that certainty and confidence which are necessary for the proper conduct of commercial affairs. [THE LORD CHANCELLOR: When a party sends a letter actually sent on the 30th, but dated by mistake on the 31st, may he not shew that that date has been put in by mis- take?] It might be difficult to maintain the simple negative of that question, but in consider- ing the admissibility of such evidence, all the circumstances of the case must be refer- red to. In the present case, for instance, as the letter was received on a day after that of its date, and when, therefore, the person receiving it had no reason to suspect that the date was erroneously given, his rights ought not to be affected by a subse- quent explanation; and the evidence intend- ed to afford that explanation ought not, therefore, to have been admitted. Then, as to the second exception, if a let- ter sent is posted in due time, but is not re- ceived in due time, who is to bear the loss consequent upon its nondelivery? Cert:aiuly not the person to whom it is sent. The fact that it is sent by the post office makes no difference in the matter. It is the same as if the letter was sent by a special messenger, in which case it is plain that the person sending the messenger would be responsible for any accident or delay. The appellants are not to be made responsible for the casual- ties of the iKJst office, and surely they cannot be made so in a case in which the persons sending an answer to an offer which they had made toUilly disregarded the ordinary usages of commercial houses as to the time of sending such answer. The clear principle set forth in the third objection is that which ought to be adopted in all cases of this kind. Where an individ- ual makes an offer by post, stipulating for or by the nature of the business, having the COMMUNICATION BY CORRESPONDENCE. 33 right to expect an answer by return of post, the offer can only endure for a limited time, and tlie making of it is accompanied by an iiui»lit'(l stipulation that the answer shall be sent i)y return of post. If that implied stip- ulation is not satisfied, the person making the offer is released from it. When a per- son seeks to acquire a right, he is bound to act with a degree of strictness, such as may not be required where he is only endeavour- ing to excuse himself from a liability. The question of reasonableness of notice which may be admitted in cases of bills of ex- change cannot be introduced in a case where one party seeks to enforce on another the acceptance of a contract. A bill of exchange is already a binding contract; no new right is acquired by notice; it is merely a neces- sarj' proceeding to enable the party giving it to enforce a right previously created. Then, as to the exception. In the case of a con- tract, the acceptance of the off-er creates the contract. The acceptance implies that both parties have knowledge of all the circum- stances. On principle, it is plain that the acceptance should be immediate, and that, if there is a delay in making that acceptance known, the offerer is free. In order to make the contract perfect, there ought to have been a co-existing assent. Countess of Dun- more V. Alexander, 9 Shaw & D. 190. There a lady, having written to another to engage a servant for her, and then sent a second letter to countermand the first, and the two letters having been delivered to the sei'vaut simultaneously, it was held that there was not a complete contract, and that the serv- ant was not entitled to wages. The coui't of king's bench in Head v. Diggon, 3 Man. «& R. 97, acted upon the same principle. There A. and B. being together, B. offered goods to A. at a certain price, and gave A. three days to make up his mind. The court held that this wiis not an absolute bargain, and that within the three days B. had a right to re- tract. Such are the principles which ought to gov- ern this case. Then as to authority: It is curious enough that this exact question seems never to have arisen. That circumstance is some proof of the clearness of the principle which is applicable to such transactions, for, had there btMin any question as to that prin- ciple, — had it been doubtful whether delay might be excused, and whether in spite of delay, a party guilty of it might not still in- sist on a contract being complete, — cases must have arisen as to the degree of laxity permitted by the law in accept:ince of con- tracts. None such is to be found. The case of Adams v. Lindsell, 1 Bam. & Aid. GSl, was the authority adopted by the lord justice general in his direction to the jury; but that case does not justify his ruling. [THE LORD CHANCELLOR: If the let- tesT of acceptance is sent in the usual ^vay, is the sender still responsible for its due de- livers' ?] ^OPK.SEL,.CAS.CO^'T. — 3 If not, then both parties are free. One cannot be bound while the other is free. Each party takes an equal risk, but suppos- ing delay is to be permitted, to what extent is it to be allowed? May the delay last one, two, or three days, or a week, or a fortnight, or a month? If any delay is to be permit- ted, the extent of it must be defined. Other- wise, all commercial matters will be in a state of perpetual u^icertainty. But, in fact, no delay is allowed. Each party is boimd to write by return of post, and each is liable to the consequences of his own letter arriving in time. Such appears to be the mercantile usage on the subject When an offer Is made by one merchant to .send another a particular commodity which varies in price, that offer is made subject to the obligation of its being answered by return post. It is therefore an offer subject to a condition. It is condition- al in point both of time and manner of ac- ceptance. As to time, the offer enures till it can be answered by return post. If it is made on a condition, then it is clearly not binding till that condition shall be accepted. Here, too, the condition is a condition pre- cedent. Nothing, therefore, can be substi- tuted for it. [THE LORD CHANCELLOR: Where is this condition imposed?] In mercantile usage, founded on law. The legal condition is to return an answer in a particular time. Mercantile usage has fixed that time as the return of post. No decision has ruled as a point of legal principle that, if an individual addressed fails in perform- ing this condition, still that the person mak- ing the offer is bound. The principle of the Scotch law, as stated in M'Douall's Insti- tutes, is the other way. It is there said (Book 1, tit. 4, p. 98, Pol. Ed.): "Conditional obligations properly so termed, are presently binding and irrevocable, and only the effect is suspended, but sometimes the obligation is only to be contracted upon a condition which affects the very substance of it. Thus an offer has an implied condition of accept- ance whereby alone the consent of the other party accedes and converts the offer into a contract; so that it is not binding, but am- bulatory or revocable, till it is accepted, and therefore either revocation by the offerer or death of either party before acceptance voids it The same rule holds in mutual contracts, —the one party subscribing is not bound till the other subscribe likewise." The law of England is in confonuity with the prin- ciple of the Scotch law. As the revocation by either party before acceptance makes the offer void, the ac- ceptance of the other side must be notified within a definite period of time. Stair's Inst, tit 2. § S. This rule of notification is a condition precedent in the English as well as the Scotch law. This principle was acted on by the court of king's bench in the case of Davison v. Mure. 3 Doug. 28. That was the case of a ship which was captured by 34 OFFER AND ACCEPTANCE. Americans while under convoy. The condi- tion there was that the master should make the best defence, and without it appeared to a court-martial that he had done so, he was not to be allowed to recover. It was held that this condition was a condition preced- ent. The same doctrine was applied by that court to the condition in a policy of in- surance against fire, that the party should obtliin a certificate from the rector of his parish and a certain uimiber of the inhabit- ants, before entitling: himself to payment of his claim for loss. Worsley v. Wood, 6 Term R. 710. If this is a condition precedent, then it must be exactly performed, and nothing can be substituted for it. In this respect there is a difference between a condition pre- cedent and a condition subsequent The former must be performed before an estate can vest; while the performance of the lat- ter, which is intended to defeat an existing estate, may be dispensed with. The act of God, the li:ing's enemies, or the impossibility of performance will furnish an excuse as to a condition subsequent This is a settled principle of our law, and the case of Brodie T. Todd, 17 Fac. Col., May 20, 1814, shows that the law of Scotland recognises the same rule. In that case, Amot a merchant of Leith, agreed to purchase from Todd & Co., of Hull, goods which were to be paid for by his acceptance. They put the goods on board a vessel at Hull; enclosed a bill of lading and a draft for the price in a let- ter advising Amot of the shipment, and re- questing him to return the draft accepted "in course.'- This letter was received by Amot on the morning of the 24th of April, and if answered by him by return of post the an- swer might have been received by Todd & Co. on the morning of the 2Gth. Arnot how- ever, did not answer it till that day, when he sent back the draft accepted. In the course of the 2Gth, Todd & Co., not having received the draft as expected, relanded the ^oods. Arnot brought an action, and the question was whether the request to return "in coui'se" meant a return by the earliest post, and constituted a condition precedent. The lords held that the words meant by re- turn of post and did constitute a condition precedent, and consequently that no action was maintainable by Amot, since he had not complied with the condition on which the bargain was made. That case is completely decisive as to what is the doctrine of the Scotch law, and must govern the decision here. [THE LORD CHANCELLOR: Is it not a question of fact whether the posting of the let- ter, in this case, on the 30th of January, was not a compliance with the duty of the party? Here is no distinct stipulation— it is all mat- ter of inference. The question is whether putting in the post is not a virtual accept- ance though by the accident of the post it does not arrive. In the case quoted, one whole day was allowed to Intervene. But in this case if putting the letter in the post is a compliance with the condition, there is an end of the question.] That would be so, if it was a condition subsequent, for then something could be sub- stituted for actual performance. But this is a condition precedent, and must be literally performed. In considering this question Ix»rd Jeffrey observed: "The party here only says, 'If I do not hear by i-eturn of post' I have yet to learn that the return of post is like the return of the sun to the meridian at a par- ticular time. I do not think that the use of such a phrase is equivalent to the stipula- tion of a particular time. I am inclined to hold that the return of post means the ac- tual return of the post. And the species facti here was, the letter accepting the of- fer having been sent in due time to the post office, that it did come to hand at the hour at which, according to the usual time re- quired for its transmission. It should have come. But the actual course of that post was not till the morning of the 1st Febru- ary." And the learned judge justifies his doctrine by referring to the case of the post coming by sea, where a general average time is fixed, but where return of post is not Galculated by that average, but by the actual arrival of the post; and then he supposes a universal snow storm affecting the deliv- ery by land, and argues that if matter of that geneiTil notoriety would affect the ques- tion, so does any other accident to the post, although not so generally known. But sure- ly this is giving an entirely new inteiipreta- tion to mercantile contracts, and is making accidental circumstances or natural delays, always counted upon, furnish ground for the construction of a delay occasioned by an ac- cident which neither party anticipated. Be- sides, it is clear on the facts here, that had the letter been put into the early post of the 30th Januai-y, this accident would not have befallen it; so that the accidental delay in the post office was i-eally the consequence of the delay in posting the letter, and was so far attributable to the respondents. They cannot therefore, claim any advan- tage, from their acceptance of the contract, which acceptance they did not notify, nor condemn the other parties for nonperform- ance of a contract, the acceptance of which they did not know. It is the acceptance which comploles the contract. The agree- ment is not suspended till the offerer has ac- tually received notice of the acceptance, but only until he might have received notice, had that notice been foi-warded at the earli- est moment. That is the nile declared in Bell's Principles of the Law of Scotland (page 35, § 78), and this rule must be applied to and must govern the decision of the pres- ent case. COMMUNICATION BY CORRESPONDENCE. 35 Stewart Wortley and Hugh Hill, for re- Bpondents, were not called on. THE LORD CHANCELLOR. My lords, overj-thing which learning or ingenuity can suggest on the part of the appellants has undoubtedly been suggested on tlie part of the learned counsel who have just ad- dressed the house; and. if your lordships concur in my view, that they have failed in making out their case, you will have the satisfaction of knowing that you have come to that conclusion after having had every- Ihiug suggested to you that by possibility could be advanced in favour of this appeal. The case certainly appears to me one which requires great ingenuity on the part of the appellants, because I do not think that in the facts of the case there is any- thing to warrant the appeal. The contest arises from an order sent from Liventool to Glasgow; or rather a proposition sent from Glasgow to Liven^ool, and accepted by the house at Liverpool. It is unnecessary to go earlier into the history of the case than the letter sent from Liverpool by Iliggius, bearing date the 31st January. A proposi- tion had been made by the Glasgow house of Dunlop, Wilson & Co. to sell 2000 tons of pig iron. The answer is of that date of the olst of January: "Gentlemen: We will take the 2000 tons, pigs, you offer us." Another part of the letter refers to other arrange- ments; but there is a distinct and positive offer to take the 2000 tons of pigs. To that letter there is ajinexod a postscript in which they say: "We have accepted your offer un- conditionally; but we hope you will accede to our request as to delivery and mode of payment by two months' bill." That, my lords, therefore, is an uncon- ditional acceptance, by the letter datt^i tlie I'.lst of January, which was proved to have been put into the post office at Liverpool on the 30th; but it was not delivered, owing to the state of severe frosts at that time, which delaj-ed the mail from reaching Glas- gow at the time at which, in the ordinai"y course, it would have arrived there. The letter having been put in on the 30th of Januarj', it ought to have arrived at Glas- gow on the following day, but it did not aiTlve till the 1st of Februaiy. It appears that between the time of writing the offer and 1st of February the parties making the offer had changed tlieir minds, instead of being willing to sell 2UO0 tons of pig iron on the terms proposed, they were anxious to be relieved from that stipulation, and on that day, the 1st of February, they say: "We have yours of yesterday, but are sori-y that we cannot enter the 2000 tons of pig iron, our offer of the 2Sth not having been accepted in course." Under these circumst « « * • * • I believe that in these remarks I have ex- hausted the whole of the objections made, and my advice to your lordships is to affirm the judgment of the court from which this is appealed. It was ordered that the interlocutor com- plained of should be affirmed, with costs. OFFER AND ACCEPTANCE. MACTIER'S ADM'RS v. FRITH- (6 Wend. 103.) ^' Court of Errors of New York. 1S30. Appeal from chancery. At New York, in the autumn of 1S22, the respondent and Hen- rj Mactier the intestate, agreed to embark In a commercial adventure, in which they were to be jointly and equally interested. Frith was to direct a shipment of 200 pipes of brandy from France to N. Y., to be con- signed to Mactier, who was to ship to the re- spondent at Jacmel in St. Domingo, provisions to the amount of the invoice cost of the bran- dy, and the respondent was to place the ship- pers of the brandy in funds by shipments of coffee to France in French vessels, and the parties were to share equally in result of the speculation all around. In pursuance of this arrangement. Frith, Sep. 5, 1822, wrote Fire- brace, Davidson & Co., a mercantile house at Havre, to ship 200 pipes of brandy to N. Y. to the consignment of Mactier. Dec. 24, Frith, who had returned to Jacmel, where he did business as a merchant, wrote a letter to Mactier on a variety of subjects, in which was contained a paragraph in these words: "I also have the pleasure of handing you copies of Messrs. Firebrace, Davidson »& Co.'s letters regarding the brandy order. By-the- bye, as your brother before I left New York, declined taking the interest I offered him in this specuLition, and wishing to confine my- self in business as much as possible, so as to bring my concerns to a certain focus, I would propose to you to take the adventure solely to your own account, holding the value to cover the transaction to my account in New York." Jan. 17, 1823, Mactier wrote to Frith, acknowledging tne receipt of his letter of the 24th ult.; thanks him for sending the copy of Firebrace, Davidson & Co.'s letter on the sub- ject of the brandy order; says that he has received a letter from them, informing that the brandy would be shipped and leave Bor- deaux about Dec. 1 then past; and adds: "This has been from the first a favorite spec- ulation with me, and am pleased to say it still promi.ses a favorable result; but to render it complete, I am desirous the speculation should go forward in the way first proposed, thereby making it a treble operation; as you have, however, expressed a wish that I should take the adventure to my own account, I shall de- lay coming to any determination till I again hear from you. The prospect of war between France and Spain may defeat the object of this speculation, as far as relates to the ship- ment of provisions hence to Hayti to be in- vested in coffee for France, in which case I will at once deciae to take the adventure to my own account. Our London accounts, down to the fifth of December, speak confidently of a war between France and Spain, a measure which, if carried into effect, would operate to your disadvantage." Also: "The next ar- rival from Europe will probably decide the question of peace or war, and I will lose no time in commumcating the same to you;" and also, "let what will happen, I trust you will in no w-ay be a sufferer." Mar. 7, 1823, Frith wrote Mactier, making no other allusion to the last letter of Mactier than the follow- ing: "I have received your esteemed favors of the 17th and 31st January, and note their respective contents." Mar. 12, 1S23, the ship La Claire arrived at N. Y., laden with the brandy in question, and was at the wharf on the morning of Mar. 13. A clerk of Mactier testified tliat he had a conversation with Mac- tier about the time the brandy arrived, per- haps the morning after, and Mactier then said he should take it to himself. A merchant of N. Y. also testified that Mactier consulted with him on the subject of some brandy which he expected to arrive; there was some offer for his taking it on his own account, and he appeared inclined to take it. From the state of things, he advised Mactier to take it. and there was a l--jtter drafted by Mactier up- on the subject, in which the merchant made some alterations. The letter stated that he, Mactier, should take the brandy to his own account Mar. 17, Mactier entered the brandy at the custom-house as owner, and not as con- signee, took the usual oath, and gave a bond for the duties. Mar. 22, he sold 150 pipes of the brandy on the wharf to several com- mercial houses, and took their notes for the price of the same. The remaining 50 pipes were put in the public store, and remained there in bond, the liquidated duties not having been secured to be paid by Mactier. Mar. 25, Mactier wrote a letter, directed to Frith at Jacmel, in which he said, "I have now to advise the arrival of French ship La Claire with the 200 pipes of brandy, and that in consequence of the probability of war be- tween France and Spain, and in compliance with the wish expressed in your regarded favor of the 24th December and my answer thereto of the 17th January last, I have de- cided to take this adventure to my own ac- count. I, therefore, credit you with the amount of the invoice," amounting to $14,- 254.57. To this letter was attached a post- script, dated Mar. 31. Mar. 28, Frith wrote a letter to Mactier, dated at Jacmel, in which, speaking of the brandy in question, he says: "With regard to this adventure, I would wish to confirm, if altogether satisfactory to you, what I mentioned to you some time ago, and which I omitted to repeat to you in my pre- vious letter, in reply to yours of the 17th January. I fin^ the more one does in this countiy, in the present state of trade, the more one's affairs get shackled." Previous to the an-ival of these last two letters at their respective places of direction, Mactier was dead, he having departed this life Apr. 10, 1823. Apr. 21, Frith again wrote a letter addressed to Mactier, in which he acknowl- edges the receipt of his letter of Mar. 25, says he has noted its contents, and requests Mac- tier to charter on his account a staunch first- class vessel, and send out to Jacmel by her COMMUNICATION BY CORRESPONDENCE. 39 400 barrels of flour, 150 barrels of pork, 150 barrels of beef, 100 barrels of mackerel, &c., &c. Ill the mean time, however, Mactler hav- ing (lied, administratioa of his goods, &c., was granted to A. N. Lawrence and anotlier, who in May, 182o, gave the requisite bonds to secure the duties on the 50 pipes of brandy which had not been bonded for by Maclier in his lifetime, except by the general bond on entering the goods at the custom-house, and took the 50 pipes from the public store and sold them at public auction. The respondent, unwilling to come in as a general creditor of Mactier and receive a pro rata distribution, Apr 1, 1824, tiled his bill in the court of chancery, alleging that the bran- dy was shipped from France on his sole ac- count, and that Mactier was only the con- signee thereof. The respondent, in his bill, admits that he proposed to Mactier to become the purchaser of the brandy, but avers that after the receipt of his letter of Jan. 17, he considered him as having declined his pro- posal, and that no other ofler was subsequent- ly made by the respondent He sets forth a letter written to him by Mactier Mar. 13, 1S23, in which, speaking of the brandy or- dered from France, he says: "I am looking daily for its arrival; it is to be regretted the order was not more promptly executed, as the delay, I fear, will operate to our disadvantage. We have London dates to the 30th Januaiy; war between France and Spain may now be considered inevitable; France has recalled her minister, and 100,000 Frenchmen hav4 been ordered to march into Spain." He al- leges that the letter of Mactier to him of Mar. 25 was not received until several days after the death of Mactier, and that his letter to Mactier of Apr. 21 was written in ignorance of the death of Mactier, and that he did not intend thereby, and he conceives he did not Anally consummate the sale as claimed. He avers that the promissory notes received by Mactier from tlie purchasers of the 150 pipes of brandy remained in Mactier's possession at the time of his death, not discounted or passed away, and that the same came into the possession of, and were at maturity col- lected by the defendants; that the defendants, by wrongfully and collusively representing themselves as entitled to the 50 pipes of brandy remaining in the public store, obtain- ed possession of and sold the same; and that July 2, 1823, he, by his attorney, claimed of the defendants the part of the shipment or invoice of brandy which remained unsold at the decease of Mactier, and also demanded the proceeds of that part of the invoice sold by Mactier existing in notes or otherwise, and the proceeds of the part sold by the defend- ants. The bill concludes by praying an ac- count of the sales of the brandy, and a decree directing the defendants to retain in their hands sufficient of the funds belonging to the estate of Mactier to pay and satisfy the re- spondent when his accounts shall be settled and adjudged upon by the court The defendants put in their answer, insist- ing that the brandy, on its arrival at the port of New York, was the sole and exclusive property of Mactier, and that the purtion thereof which c.tme to their hands at his de- cease, and the proceeds of that part thereof which was sold by him In his lifetime, and which came to their hands, rightfully belong- ed to his estate, and was subject to be dis- posed of in a due coui-se of administration. The defendants admit that they have in their hands $13,035, belonging to the estate of Mac- tier, after the payment of certain debts to the United States, and various other sums of money which they were directed to pay, have credit for the payment of and are authorized to retain, by virtue of a decree of the court of chancery of June 14, 1S2:{, in a cause wherein A. Mactier, Sr., in behalf of himself and the creditors of Henry Mactier, deceased, is com- plainant, and themselves defendants; and they contend that such decree is in full force, and that by virtue thereof they are bound to pay the above mentioned sum of money and such as may come to their hands pro rata, or equally among all the creditors of Henry Mac- tier, pursuant to such decree. By the answer it was admitted that the de- fendants had found- among the papers of Henry Mactier two invoices of the 200 pipes of brandy, similar in all respects, except that one states the shipment to have been made "to the address aLd for the account of Henry Mactier," and the other states it to have been made "for the account of the complainant to the address of Henry Mactier." The first of the invoices was used upon entering the brandy at the custom-house. It also appeared in evidence that ]\Iaf. 1, 1823, Mactier effected an insurance on commissions arising on a con- signment from Bordetiux to New York, to the amount of $1,500. In a petty cash-book of Mactier's there is the following entry: "1823, March 17, John A. Frith's sales of brandy, paid entry at custom-house, eighty cents." The clerk of Mactier, who made this entry, testified that the name of Frith pre- fixed to the entry in the petty cash-book does not necessarily prove that the brandy was Frith's, but it shows that he at that time sup- posed the brandy to be P^'rith's; if it had then belonged to Mactier, or if Mactier had decided to take it, ard any entry in the books had been made showing that fact he would have entered it. "Sales of brandy, Dr. for enter- ing, &c." At the time of making the entry he considered the fact of ownership contin- gent. Mactier afterwards directed the ac- count to be opened in the books, charging the bmndy to himself, the account to be "Sales of brandy." An entry was made in the day- book of Mar. 2S, crediting Frith with the in- voice amount of the brandy. Entries, he said, are sometimes made several days after the transaction; then the entry refers back to the true date of the transaction, mentioning the time. The entry was made by Mar. 31. He also testified that the letter of Mar. 13, men- 40 OFFER xVXD ACCEPTAXCE. tionod in tie complainant's bill, was copied on the night of that daj-, but he had no recol- lection when it left the office; it possibly might not have gone until the La Claire ar- rived. May 20, 1S25. Chancellor Sanford made an order of reference to a master to examine witnesses, and to report whether, in his opin- ion, the complainant was the owner of any part, and what part of the shipment of brandy at the time of the sale of the same or of any part thereof, and if so, whether, as such own- er, he had a lien by virtue of such ownership on the brandy, or the proceeds thereof, in the hands of the defendants; and that if the mas- ter should be of opinion that he was entitled as a special creditor, or had a lien, that then he should take and state an account, and re- port the amount due the complainant as such special creditor, or having a lien. Under this order witnesses were examined, and a mass of documentary evidence produced before the master, who, Oct 10, 1825, reported that the complainant was not- the owner of the ship- ment of brandy, neither at the time of the sale of the part thereof made by Mactier in his lifetime, nor of the other part thereof made by the defendants as his administrators since his death, and had no lien on the brandy, or on the proceeds thereof in the hands of the administrators To this report the complain- ant excepted, and the cause was heard upon the exceptions before Chancellor Walworth, who, in Mar. 1829, allowed the exception to that part of the master's report above stated (other exceptions to other parts of the report, which it has not been deemed essential to state, were disallowed), and decreed that the report be referred back to the master to alter and correct the same, and to take and state an account, and report the amount due the complainant, on the principle that he, as sur- vivor, is entitled to the net proceeds of the adventure of brandy so far as they can be traced and identified, and has a specific lien on the net proceeds of the 50 pipes of brandy sold by the administrators, and of the pro- ceeds of the notes given for the 150 pipes which remained uncollected or not passed away at the time of Mactier's death, or on so much as is necessary to satisfy the balance due complainant for payment and disburse- ments on account of that adventure, after de- ducting from those proceeds the balance of the amount paid for duties and expenses, if any, over and above the amount of proceeds of the shipment of brandy which were re- ceived by Mactier in his lifetime. From this decree the defendants appealed. For the rea- sons of the chancellor, for the decree pro- nounced by him, see 1 Paige, 434. The cause was argued here by S. Boyd and S. A. Talcott, for appellants. S. Stevens and G. Griffin, for respondent MAIICY, J. The object of the bill filed in this case is to obtain from the administrators of, Mactier the proceeds of the 50 pipes oi brandy which came to their possession after his death, and the amount of such notes taken on the sale of the 150 pipes. Mar. 22, 1823, as were uncollected and undisposed of at the death of Mactier, or, at least, so much there- of as may be necessary to pay the balance due the respondent for disbursements on ac- count of the adventure. The question on which the decision in this case, as I appre- hend, mainly depends, relates to the alleged sale of the brandy to Mactier. There are many definitions of what constitutes a con- tract, but all of them are, of course, sub- stantially alike. Powell states a contract to be a transaction in which each party comes under an obligation to the other, and each reciprocally acquires a right to what is prom- ised by the other. Pow. Cont 4. In testing the validity of contracts, many things are to be considered. The contract that the appel- lant sets up in this case is alleged by the re- spondent to be deficient in several essential requisites. When that was done which, on the assumption of there being parties capablt- of contracting, was necessary, as the respond- ent contends, to complete it, Mactier was dead. If the contract was only in progress of execution, and there remained but a single act to be done to complete it, his death ren- dered the performance of that act impossible; it suspended the proceedings at the very point where they were when it occurred. The doctrine of relation was discussed on the argument, and its application urged on us. It was insisted that if notliing but a formal act was to be done, and it was done by the sur- viving party after the death of the other, and in ignorance of it, this act might be ad- judged to relate to a period antecedent to the death of the party dying. If, as it was held in the court below, the bargain in this case cotild not be closed until Frith received Mac- tier's letter accepting his ol3'er to sell, the re- ceiving that letter, it was said, might be con- sidered as having relation to the time when it was sent, upon the principle that courts often resort to this doctrine of relation to prevent an injury resulting to a party from the act of God. Where an agent without competent authority makes a contract, a subsequent rat- ification by the principal relates back to the time when the agent acted. The ratification is equivalent to an original authority; it is considered in law as furnishing proof of an authority in the agent at the time he assumed to have it. If, however, he had disclosed his want of authority, but had settled the terms of the contract, in the belief that what he did would be ratified, the doctrine of relation would not apply; the bargain would take effect from the time of the ratification. The reason of the distinction which I apprehend to exist in the two cases, is, that in the one acts are done which make a perfect contract, provided the actors had the authority they assumed to have, and the ratification of their acts by those from whom their power must COMMUNICATION BY CORRESPONDENCE. 41 have been dorived, if they had it, is legal evi- dence that they did have it when they acted. In Ihe other case, the fact being made known that there was not competent power in one of the actors, the very foundation, on which alone the presumption of authority can rest. Is destroyed. A presumption will not be call- ed in to supply an Impossibility. In a con- tract of sale all agree that there must be two minds, at least, concurring at the moment of its completion; l)Ut this cannot be if there be but one contracting party in existence. There Is also, as I conceive, a difference between acts essential to perfect an agreement and those which relate to the forms prescribed in certain instances as modes of proof. This dilTerence is illustrated by those cases which were referred to on the argument concerning the enrollment of deeds. The enrollment is a formal act, but necessary to be done, to enable the party to prove the bargain and sale, but when it is done it relates to the time when the indenture was executed. It is as Lord Bacon calls it, but a perfective ceremony of the first deed of bargain and sale. Regula., 14. So where chancery decrees the execu- tion of a parol contract, on the ground of part perfornwuce, the title certainly, as between the parties, vests from the time of the con- tract, and not from the performance of those acts that remove the bar created by the stat- ute of frauas. The doctrine of relation may be permitted to operate on these formal acts, but it cannot be used, as it is proposed to use it here, to supply a party to a contract who does not exist at the time when the act is done which fixes to it the seal of vahdity; or, what is the same thing, it cannot carry back that act to a time when parties capa- ble of contracting did m fact exist. This view of the subject is conformable to the civil law as well as the law of France. By these laws, the death of the party offering to sell, is held to be a revocation of the offer, and an ac- ceptance subsequent to that event is inef- fectual to close the bargain. Poth. Mar. Cont. p. 1, § 2, art. 3, No. 82. My conclusion, in regard to this objection to the alleged con- tract, is, that if any act was required to be done, even by Frith, to complete the sale when Mactier died, that act could not be sub- sequently performed. I am now to consider whether there was a contract, before Macticr's death, which had the consent of the contracting parties so giv- en and made known as to be binding on them. That a consent is necessary all agree, but what shall constitute it in a given case may admit of much diversity of opinion. The con- sent of the parties in a contract of sale, as ■explained by Pothier, consists in the concur- rence of the will of the vendor to sell a par- ticular thing to the purchaser for a specified price, with the will of the purchaser to buy the same thing for that price. Poth. Mar. Cont pi. 1, § 2, art 3, No. 31. Delvincourt. another eminent French writer on the Civil Code of EYance, says, that although it is im- possible that there should be a contract with- out the consent of all parties, it is not indis- pen.sable that the wills of the parties should concur at the same instant, provided the will of the one that did not concur at first is de- clared before the will of the other is revoked. 5 Cours de Code Civil, 03. Although the will of the party making the offer may precede that of the party accepting, yet it must con- tinue down to the time of the acceptance. Where parties are together chaffering about an article of merchandise, and one expresses a present willingness to accept of certain terms, that willingness is supposed to con- tinue, unless it is revoked, to the close of their interview and negotiation on the same subject, and if during this time the other party says he will take the article on the terms proposed, the bargain is thereby closed. Poth. Mar. Cont p. 1. § 2, art 3, No. 3L What I mean by its being closed is, tliat noth- ing mutual between the parties remains to be done to give to either a right to have it car- ried into effect; either can enforce it against the other, or recover damages for the non- fulfillment of it: but if there be conditions expressed or implied to be performed by the purchaser, he cannot compel the delivery un- til they are performed. If the price is to be immediately paid or security given, he cannot have the propeity until payment made, or se- curity given, or a tender thereof. Touch. 2(>4, 20.j; Noy, Max. c. 42; 2 Bl. Comm. 447. Where the negotiation between the con- tracting parties residing at a distance from each other is conducted, as it usually is by letters, it is necessary, in order iJiat their minds may meet, that the will of the party making the proposition to sell should con- tinue until his letter shall have reached the other, and he shall have signified, or at least had an opportunity to signify his acceptance of the proposition. This Pothier holds to be the legal presumption unless the contrary ap- pears. His language is: "Cette volonte est presumee tant qu'il ne parait rien de contra- rie." This doctrine, which presumes the con- tinuance of a willingness to contract after it has been manifested by an offer is not con- fined to the civil law and the codes of those nations which have constructed their systems with the materials drawn from that exhaust- less storehouse of jurisprudence: it is found in the common law; indeed, it exists, of ne- cessity, wherever the power to contract exists In parties separated from each other. The rule of the common law is, that wherever the existence of a particular subject-matter or relation has been once proved, its continuance is presumed till proof be given to the contrary, or till a different presimiption be afforded by the nature of the subject-matter. 16 East 5.5; 3 Starkie. Ev. 12.52. The case of Adams V. Lindsell, 1 Barn. & Aid. t'.Sl. proceeds upon and atlirms the principle that the willingness to contract thus manifested is presumed to continue for the time limited, and. if that be not indicated by the offer, until it is expressly 42 OFFEU AND ACCEPTANCE. revoked or countervailed by a contrary pre- sumption. In that case it was said, "Tlie de- fendants must be considered in law as making during every instant of time their letter was traveling the same identical offer to the plain- tiffs; and then the contract is complete by the acceptance of it by tlie latter." Against the authority of the case of Adams v. Lind- sell, we have urged on us a decision of a court of the highest respectability in one of our sister states. The case of M'CuUoch v. Insui-ance Co., 1 Pick. 27S, conflicts in prin ciple, according to my views of it, with the case decided by the king's bench. I should have been pleased to see these tribunals har- monize upon a question of no small impor- tance to the commercial world; and I have, therefore, deliberately weighed the ingenious attempts made to reconcile these decisions up- on this point; but these attempts appear to me to have been unsuccessful. A refinement which would distinguish between a contract for insurance, and one for the sale of goods in relation to the assent of the parties, might reheve us from the embarrassment which the different principles of these decisions is calculated to produce; but to apply such a distinction hereafter would doubtless involve courts iu a still more disti'essing embarrass- ment. Distinctions, which are not founded on a difference in the nature of things, are not entitled to indulgence; they tend to make the science ot law a collection of arbitrary rules appealing to factitious reasons for their support, consequently difficult to be acquired, and often of uncertain application. The two cases referred to should have had applied to them the same rule of law, and we are re- quired to say what that rule is in deciding the case now under consideration. The principle of the decision of the king's bench is simply that the acceptance of an offer made, through the medium of a letter, binds the bargain if the party making the offer has not revoked it, as he has a right to do before it is accepted. The rule laid down by the supreme court of Massachusetts re- gards the contract as incomplete until the party making the offer is notified of the ac- ceptance, or until the time when he should have received it, the party accepting having done what was incumbent on him to give notice. The chancellor in deciding this case gave his sanction to the latter rule: "To make a valid contract," he says, "it is not only necessary that the minds of the con- tracting parties should meet on the subject of the contract, but they must know that fact." The decision of the court of Massa- chusetts makes knowledge by the party ten- dering the offer of the other's acceptance es- sential to the completion of the contract. If one party is not bound till he knows or might know, and therefore is presumed to know that the other has accepted, the accepting party, on the same principle, ought not to be bound till he knows the offering party has not re- called the offer before knowledge of the ac- ceptance. The principle of that case would bring the matter to the point stated by the chancellor, viz.: the parties umst know that their minds meet on the subject of the con- tract. If a bargain can be completed be- tween absent parties, it must be when one ot them cannot know the fact whether it be or be not completed It cannot begin to be obligatory on the one before it is on the other; there must be a precise time when the obligation attaches to both, and this time must happen when one of the parties caimot know that the obligation has attached to him; the obligation does not, therefore, arise from a knowledge of the present concurrence of the wills of the contracting parties. All the authorities state a contract or an agreement (which is the same thing) to be aggregatio mentium. Why should not this meeting of the minds, which makes the contract, also indicate the moment when it becomes obliga- tory? I might rather ask, is it not and must it not be the moment when it does become obligatory? If the party making the offer is not bound until he knows of this meeting of minds, for the same reason the party ac- cepting the offer ought not to be bound when his acceptance is received, because he does not know of the meeting of the minds, for the- offer may have been withdrawn before his acceptance was received. If more than a concurrence of minds upon a distinct prop- osition is required to make an obligatory con- tract, the definition of what constitutes a con- tract is not correct. Instead of being the meeting of the minds of the contracting par- ties, it should be a knowledge of this meet- ing. It was said on the argument that if concurrence of minds alone would make a valid contract, one might be constructed oui of mere volitions and uncommunica ted wishes; I think such a result would not follow. The law does not regard bare volitions and pure mental abstractions. When it speaks of the operations of the mind, it means such as have been made manifest by overt acts; when it speaks of the meeting of minds, it refers to such a meeting as has been made known by proper acts, and when thus made known it is effective, although the parties who may claim the benefit of, or be bound by a contract thus made, may for a season remain ignorant of its being made. Testing the rules of the law laid down in the two cases to which I have referred by the authority of reason, and the practical results that are likely to flow from them, it does appear to me, that we are not left at liberty to hesitate about the choice. If we are inclined from the force of abstract rea- son, to prefer the rule laid down by the court of king's bench, that inclination will be greatly strengthened by a recurrence to the opinions of courts and jurists. The crown pleas in England seem to me to have given their approval to the decision of Adams v. Lind.sell, 4 Bing. 653. Judge Washington, in delivering the opinion of the court, in Eliason COMMUNICATION BY CORRESPONDENCE. 43 V. Henshaw, 4 Wheat. 228, said, "Until the terms of the agreoraont have received the as- sent of both parties the noKoUation is open, and imposes no obligation on either." The inforcnce from this proposition is that the assent of the parties to the terms of the agreement, and not their knowledge of It, completes the contract It was decided in the circuit court of the United States, for Pennsylvania, that contracts are formed by the offer on the one hand, and an acceptance on the other. After acceptance, the contract is obligatory on both. Coxe, Dig. 192. In this case, knowledge of the acceptance is not brouglit into view as necessary to constitute the obligation. Both the Roman law and the French Civil Code, as we have seen by the references already made, contain a doctrine in accordance with the principle of tliese cases. I think I am, therefore, warranted in saying that the proposition may be considered as es- tablished, that the acceptance of a written offer of a contract of sale consummates the bargain, providing the offer is standing at the time of the acceptance. What shall constitute an acceptance will depend, in a great measure, upon circum- stances. The mere determination of the mind, unacted on, can never be an acceptance. Where the offer is bj' letter, the usual mode of acceptance is the sending of a letter an- nouncing a con.sent to accept; where it is made by a messenger, a determination to ac- cept, returned through him, or sent by anoth- er, would seem to be all the law requires, if the contract may be consummated without writing. There are other modes which are equally conclusive upon the parties: keeping silence, under certain circumstances, is an assent to a proposition; anything that shall amount to a manifestation of a formed de- termination to accept, communicated or put in the proper way to be communicated to the party making the offer, would doubtless com- plete the contract; but a letter written would not be an acceptance, so long as it remained in the possession or under the control of tlie writer. An acceptiince is the distinct act of one party to the contract as much as the offer is of the other; the knowledge by the party making the offer, of the determination of the party receiving it, is not an ingredient of an acceptance. It is not compounded of an as- sent by one party to the terms offered, and a knowledge of that assent by tlie other. I will now apply this law to the facts of this case. FriUi's offer to sell his interest in the bi-andy certainly continued till his letter of Dec. 24 was received at New York and Mactier had a fair 'pportunity to answer it. If the answer of Jan. 17 had contained an unqualified acceptance, the bargain would have been closed when it was sent away for Jacmel; but the offer was not then accepted; there was a promise to accept upon a con- tingency, for Mactier says, after alluding to the prospect of a war between France and Spain, "in which case," that Is in case of such I a war, "I will at once decide to take the adventure to my own account." This con- cluded nothing. If the event had actually I happened, and Frith had insisted on enforcing \ this conditional acceptance, it would not have I been in his power to do so. The most that I Mactier said was, that if an expected event I happened, he would do an act which would I complete tlie bargain. The happening of the event could not, without the act, complete it. The Roman law regarded the tense of the verb used liy the contracting parties to de- termine whether the bargain was concluded: "Verbum imperfecti temporis rem adhuc im- perfectam significat." There is a wide dif- ference between a promise to give an assent to a proposition for a contract on the happen- ing of a contingency, and the annunciation of a present assent to it. If the expected event happens, and the act promised is performed, the bargain is closed; but it is the promised acceptance, and not the happening of the event, that gives validity to the contract. If in this case the offer of Frith had been to Mactier to take the brandy on the happening of a French and Spanish war, and Mactier had promised to decide to take it in such an event, the simple fact of his taking it after the war would have enabled Frith to treat him as the purchaser of it. Such an act would have beer a valid acceptance; but a conditional acceptance of an unconditional of- fer, followed up by acts of the acceptor after the condition was fulfilled on whicli the ac- ceptance depended, might not be considered as completing the bargain without the acquies- cence of the party making the offer in those acts, because the minds of the parties would not have met on the precise terms of the contract. To conclude the bargain, ilactier must have accepted the offer as tendered to him by Frith, and that acceptance must have been while the offer, in contemplation of law, was still held out to him. That there was an ac- ceptance, or rather that Mactier did all that j was incumbent on him to do, to effect an ac- , ceptance, was not denied; but it was insisted, on the part of the respondent, that it was noade after the offer was withdrawn. It will be necessary to consider when this accept- ance took place, as preparatory to settling the fact of the continuance of the offer down to tliat time. There is not the slightest evidence of the determination on the part of Mactier to take the brandy before Mar. 17. The insur- ance that he effected on his commissions Mar. 1 disproves the existence of such a deter- mination on that day; but if the situation of the parties was changed, and Frith was now endeavoring to set up the contract, I am at a loss to conceive how Mactier"s representa- tives could withstand the force of the facts which took place Mar. 17. In answer to the offer, Mactier delayed coming to a determina- tion thereon, but promised to accept it if there should be a war; Mar. 17, when that event was considered as settled, he entered 44 OFFER AND ACCEPTANCE. the brandy as his own property, and told his clerk that he had determined to take it. But If there should be any doubt as to the effect of this conduct, there can be none as to his subsequent acts. By a letter dated the 25th with a postscript of Mar. 31, he accepted the offer. This letter was immediately transmit- ted to Frith, and as soon as Mar. 28, entries were made in his books showing that he had become the pm'chaser Enough was done by the 31st to constitute an acceptance of Frith's offer and to complete the bargain, if the offer can be considered as standing till that day. An offer, wher once made, continues, as I have heretofore shown, to the satisfaction of my own mind at least, until it is expressly revoked, or imtil circumstances authorize a presumption that it is revoked. The offer it- self may show very clearly when the pre- sumption of revocation attaches. Where it is made to be replied to by return mail, the party to whom it is addressed must at once perceive that it is not to stand for an ac- ceptance, to be transm'tted after that mail. If an offer stands until it is expressly with- drawn, or is presumed to be withdrawn, whether it is held out to a party at a partic- ular period or not, is a matter of fact. Then we are to determine, as a matterof fact, wheth- er Frith's offer was held out for Mactier's acceptance untO Mar. 31; if Frith intended it should stand on, and he viewed himself as tendering it to Mactier down to tliat time, we are bound to regard it as standing, unless his intention was the result of the fraudulent conduct of Mactier. The acts of Frith, after the death of Mactier, could do nothing to- wards completing an unfinished contract; but I think they may be fairly adverted to for the purpose of ascertaining his intentions in rela- tion to the continuance of his offer. Mar. 7, he acknowledges Mactier's letter of Jan. 17, which did not decline, as it has been con- strued to do, the offer, but apprised him that it was kept under advisement; and by using the expression, "noting the contents," Frith is, I think, tc be understood as yielding to the proposed delay If a doubt as to this construction of that letter could spring up in the mind, it would be at once removed by the ptTusal of the letter of the 28th of the same month. In that he expresses a wish to con- firm what he had said in the letter making the offer to sell, and declares that he had in a previous letter, which must mean that of the 7th, omitted to communicate the .same thing. In answering Mactier's letter which contained the acceptance of his offer, he rec- ognizes the bargain as closed, and gives di- rections as to investing the proceeds of the brandy. All the subsequent correspondence acquiesces in the sale. It appears to me to be impossible to say, after reading the let- ters of Frith written subsequent to his knowl- edge of Mactier's acceptance, that he did not consider the offer as held out to Mactier down to the time when it was accepted, and the bar- gain closed by that acceptance; and I think we must adjudge it to have been closed, un- less the agreement was nugatory by reason that the thing to which it related had not an actual or potential existence when the con- tract was consummated. Where both parties are under a mistake as to the existence of the thing contracted to be sold, the bargain fails. The cases put by Pothier and Chancellor Kent ai-e, the sale of a horse which happens to be dead, or of a house consumed by fire before the contract was concluded. The law which has been ap- plied to such cases is not, in my judgment, applicable to this. Property that has no ac- tual existence is the subject of a valid con- tract of sale, as a carriage not yet made, or a crop not grown; they are considered to have a potential existence. A pei-son may sell an article to which he has no title or pre- tense of title. Poth. Traite du Contract de Vente, p. 1, § 2, art. 1. There is, I appre- hend, no just ground for saying that the principal part of this brandy was not in ex- istence Mar. 31, the time when I consider the contract to have become perfected. Fifty pipes were in the public store; the remain- der had been sold but a few days before, and was probably but pailially consumed; but whether it was or not is not, in my view of it, material to this case. If the contract was obligatory on one, it was on both. Could Mactier have objected to it, and placed its nullity on the ground that he had consumed a part of the brandy before he accepted the offer for the purchase? Such a defense would not be listened to in any court; it could invoke no principle of justice to its aid. Another objection to the contract was drawn fi'om the alleged fraudulent conduct of Mactier. The bill does not seem to me to put the claim to the interference of the court below specifically upon that ground. It does not seek to avoid the oonti-act on the ground that Frith was inveigled into it by the con- trivance and artifice of Mactier, but it de- nies the existence of those formalities which are requisite to conclude a contract. Frith complains, it is true, that Mactier did not, by his letter of Mar. 25, or any other, in- form him of the sale of the brandy, of its value in New York, or of the arrival of the vessel with the brandy on board. The letter of the 2.5th did apprise him that the brandy had an-ived. If any act was to be done by Frith to complete the bargain, the conceal- ment of any fact that might influence his de- termination with regard to that act, might give rise to the imputation of fraud; and if such fact was concealed with a view to pro- cure an assent to a contract to which, it is probable, his assent would not have been given had he received information of the fact concealed, he might allege the concealment to exonerate himself from the obligation to ful- fil it; but if he had no affirmative act to per- form before the bargain might be closed, and Mactier was in a situation that gave him tlie right to close it, and he did so before the in- COMMUNICATION BY CORRESPONDENCE. 45 formation wliirh is allo^^cd to have been kept back could have reached Frith, if it had been duly transmitted, he has suffered no injury; indeed there is no ground for a presumption of fraud. My conclusion, therefore, is, that the contract was consummated between the parties before the death of Mactier, by which he acquired all Frith's right to the 200 pipes of brandy. The Uiw in relation to the right of the vendor of goods to stop them during their transit to the purchaser, was much' discussed on the argument; but I have been unable to discover how a question, in relation to such a right, can properly arise from the facts in this case. If there was not a sale, such a question certainly cannot arise, for then there would be no vendor or vendee and, conse- quently, no transit of the brandy from the one to the other. If there was a sale, and I hold there was, the question does not arise, because there was, in fact, no stoppage or any act that can in law be regarded as amount- ing to a stoppage. By virtue of the purchase the title to the brandy vested in Mactier; no actual deliver}', if it was not in his ix)sses- sion, was necessary to perfect his title; if the brandy had been destroyed Apr. 1, or the notes taken for the portion previously sold had proved utterly valueless, the loss would have fallen entirely on Mactier. The un- sold brandy was his absolute property, and on his death the title to it vested in his rep- resentatives. On the assumption that it was on its transit, the right of the representatives to it was subject to be affected in the same manner as Mactier's might have been if he had been in life; it might have been defeat- ed by a stoppage in transitu. A right to stop goods in their ti'ansit does not arise from the circumstance that the bargain is not complete until the purchaser gets actual possession of them, but it is a right taking its origin im- doubtedly in strong considerations of equity, and dependent upon a fact usually happening after the sale, and always unknown to the seller at the time of it— the insolvency of the purchaser. 3 Bos. & P. 584; 2 Kent, Comm. 393, 428. The stoppage does not take place on the happening of the insolvency, but the right to stop is thereby acquired. The acqui- sition of the right works no beneficial result to the seller unless he intercepts the goods in their transit. I have seen no case where this right has been held to attach on the death of the purchaser, if his estate was sol- vent I think the seller could not, in such a case, justify an interference with the goods sold while on their transit. It arises in case of death and insolvency, but not otherwise than it would exist in the case of insolvency alone. A question asked by Lord Kenyon, in Toole V. Hollingworth, 5 Term R. 226, has given rise to a suggestion, that death prevents the deliver)-; but the doubt entertained by that eminent judge did not spring from a case where there had been a sale. Tlie property there had been sent to answer a particular purpose, which was to raise funds to meet the consignee's acceptances; he having become unable by rea.son of his insolvency to use them for that purixjse, had no interest in them that went to his assignees. Where there is a general trading between two mer- chants residing at a distance from each other, and goods are sent by one to the other with- j out being ordered, the title to them would j not vest, as I conceive, in the merchant to I whom they were sent untU they were re- ' ceived and accepted. If he at once returned ' them as untit for his use, or for any other I cause, the title to them would not, in my ! opinion, have bt^en changed. In such a case i Lord Kenyon might well ask, and mean there- i by to expit'ss a strong doubt, whether the ' goods could be received bj' the executor if the consignee was dead when they arrived- I The sending of goods, under such circum- stances, amounts to no more than an offer to sell them to the party to whom they are I sent, and his acceptance of them would be necessary to complete a bargain. If he should I be dead before they arrived, there would be no contracting party to close the bargain by an acceptiince. Chancellor Kent's remarks, on the question put by Lord Kenyon, shows that he did not consider that a doubt of the nature of the one suggested could be indulged in a case where the title to the property had vested in the deceased person; for he says: "Tlie language of the court," in the case last referred to, "seems to be, that goods sent to a person, who at the time was dead or dis- abled by bankruptcy from dealing, and under an incapacitj- to acquire property, could be re- covered back upon the principle that there was no contract." 7 Johns. Ch. 275. Waiving aU the other diOiculties that were presented in opposition to Frith's right to stop the 50 pii>es of brandy, and granting at the same time that he had the right, and that they were to be considered as in their transit while they remained in the custody of the custom-house officer at N. Y., it may be asked what did he do to stay the delivery of them to the administrators of MactierV Did he make an effort to get possession of them? Did he forbid the public otficer to deliver tliem to the administrators? This I believe is not pretended. The administrators took possession of them in May or June, and sold them about that time as a part of the estate of their intestate, and the first act in rela- tion to them on the part of LMth was in July. They had a right to the brandy as property vested in Mactier at the time of his death by virtue of the contract of sale; and they can rightfully hold the avails thereof, unless Frith had rescinded the contract by stopping the brandy in its transit before it came to their actual possession. This he did not do, nor did he perform any other act equivalent to iL 4G OPFER AND ACCEPTANCE. Upon the view of the whole of this case, I entertain the opinion that the decree of the chancellor ought to be i-eversed. By Mr. Senator BENTON. From the plead- ings and testimony in the cause, there can be no ground for the assumption set up by the respondent that he was the sole owner, and was alone interested in the brandy. The answer of the appellants is, in my opinion, substantially supported by the proofs. We are, then, to assume that the intestate and re- spondent were partners, or jointly interested in the 200 pipes of brandy; to share equally In the profits, or to bear the loss jointly, if any should be sustained. The transaction was to be extended so as ultimately to pay the invoice cost in France by a shipment of coffee from the West Indies, which latter operation was to result from provisions ship- ped from this country to the West Indies. It is worthy of notice that by the aiTange- ment the brandy was to be shipped from France for New York, in an American ves- sel, and the coffee was to be sent in a French bottom from the West Indies; and this, un- doubtedly, with a view to advantages to re- sult to the parties to the speculation. The respondent, by his letter, dated Sep. 5, 1S22, to his agents in P^rance, having ordered the brandy to be sent out to the consignment of the intestate, and directing the invoice amount to be insured. Dec. 24, 1822, wrote the intestate to the following effect: "I also have the pleasure of handing you copies of Messrs. Firebrace, Davidson & Co.'s letters regarding the brandy order. By-the-bye, as your brother, before I left New York, de- clined taking the interest I offered him in this speculation, and wishing to confine my- self on business as much as possible, so as to bring my concerns to a certain focus, I would propose to you to take the adventure solely on your own accoimt, holding the value to cover the transaction to my account In New York." This, it appears to me, is a distinct and un- conditional offer to dispose of the interest and property in the shipment of brandy at its value; that is, the invoice cost in France, or its value or price in the market of con- sumption. And in this case it cannot, I ap- prehend, be material which was intended by the respondent, because the question here pre- sented does not involve that particular in- quirj'. And if the offer was accepted, the intestate was only to carry the amount to the credit of the respondent, holding the same to cover any transaction which he might deem it advisable to negotiate in New York. On Jan. 17, 182.3, the intestate, in answer to this proposition, wrote as follows: "I thank you for sending me the copy of Fire- brace, Davidson &. Co.'s letter on the subject of the brandy order. This has been, from the first, a favorite speculation with me, and am pleased to say it still promises a favor- able result; but to render it complete, I am desirous the speculation should go forward in the way first proiwsed, thereby making it a treble operation. As you have, however, expressed a wish that I should take the ad- venture to my own account, I shall delay coming to any determination till I again hear from you. The prospect of war between France and Spain may defeat the object of this specidation, as far as relates to the ship- ment of provisions hence to Hayti, to be in- vested in coffee for France per Fi*ench ves- sels, in which case I will at once decide to take the adventure to my own account." The intestate then states, as his opinion, that the war would operate to the disadvantage of the respondent, in relation, I suppose, to the transactions connected with the purchase of the brandy and the shipment of coffee to France. This letter, although it is not an acceptance of the proposition contained In the respondent's to take immediate effect, is not a rejection of it; the intestate replies, he should delay coming to any determination in regard to the wish expressed that he should take the adventure on his own account, until he again heard from the respondent; and in another part of the letter he states, that should a war intervene between France and Spain, which would, he assumes, defeat the objects of the speculation in the particulars therein enumerated, he would decide to take the adventure to his own account. Under date of Mar. 7, 1823, the respondent wrote the intestate, acknowledging the re- ceipt of the letter dated Jan. 17, above re- feiTcd to; but nothing is said about this let- ter, except that the contents were noticed. The letter from the intestate to the respond- ent, dated Mar. 13, 1823, advised the respond- ent that he had been informed of the ship- ment of the brandy in a French ship, that he was looking daily for its arrival, and ex- pressing his regrets that the order had not been more promptly executed, as the delay would l>e likely to prove disadvantageous to him and the respondent. At this time the intestate was advised that a war between France and Spain was inevitable; that France had recalled her minister, and that a large French army had been ordered into Spain, and that the American insurance ollices de- clined insuring on French vessels. On Mar. 28, 1823, the respondent wrote the intestate to the following effect, in relation to the brandy transaction: "I have not heard anything more from Firebrace, Davidson & Co. respecting the brandy, but I have little doubt of its having got out to you long ere this, unless the rupture which we have a report of between France and Spain took place before the sailing of the vessel, or that she has been captured by the Spaniards; if either be the case, it would be a pity, as its safe arrival with you would be much en- hanced if there be a war. With respect to this adventure, I would wish to confirm, if COMMUNICATION BY CORRESPONDENCE 47 altogether satisfactory to you, what I men- tioned to you some time ago, and wliich I omitted to repeat to you in my previous letter in reply to yours of the 17th January. I find the more one does in this country, in the present state of trade, the more one's af- fairs get shackled." The letter here men- tioned as the one in reply to that of Jan. 17, is the letter from the respondent to tlie in- testate, under date of Mar. 7, 1S2;3. It is al- leged that the above, under date of Mar. 28, did not arrive at its destination until after the death of the intestate. But wliat inference can properly, and with- out violence, be drawn from the eoutcnts of this last letter from the respondent? What is the plain and fair import of it? It appears to me the respondent fully acquiesced in the proposal of the intestate to consider tlie offers made by the letter of Dec. 24, 1822, as open, and still at the option of the intestate to ac- cept or refuse, as he might think proper. The respondent's mind had probably at all times no other inclination than to hold his offers open to the intestate, and he had so intended to have expressed himself in his reply under date of Mar. 7; for he says he wished to con- firm what he mentioned sometime ago, and which he omitted to repeat in his previous letter in reply to the one from the intestate of Jan. 17. This letter, I apprehend, affords sufficient evidence of the fact that the re- spondent did not consider his proiwsitions as rejected by the intestate, although they had not been in terms accepted by him, from any communications which had been received at its date. It would, I apprehend, be compe- tent for the appellants in this case to prove that the respondent had, up to the date of this letter, considered the intestate at liberty, and that he had the right to take the adven- ture to his own account; that the offer con- tained in the letter of Dec. 24 was still open to him. If I axu correct in this conclusion, then I do not perceive why this letter does not afford sufficient evidence that the respond- ent never considered the intestate as conclud- ed or barred from accepting them. Then, under date of JNIar. 25, 1S2;>, and with- in the time above assumed, the intestate wrote the respondent and said: "I have now to advise the arrival of the French ship La Claire with the 200 pipes of brandy, and that in consequence of the probability of war be- tween France and Spain, and in compliance with the wish expressed in your regarded fa- vor of the 24th December, and my answer thereto of the 17th January last, I have decid- ed to take this adventure to my own account. I therefore credit you with the amount of the invoice, say fr. 70,978-58. which at the exchange of the day, 5-40, makes the sum of $14,254 57^100 of which you will please to take note." Here the intestate closed with tlie resi)ondent's proposal; and was it done in time to constitute a contract binding upon the parties? On Apr. 21, following, the re- spondent wrote the intestate, advising him of the receipt of the above letter of Mar. 25, noting particularly the contents, to which he liad replied, he says, by his previous re- spects; and although he was then indelned to the intestate in a considerable sum, if we do not take into view the amount of the price or value of the brandy, he requested the in- testate to charter on his account a stauneh first class vessel, and send out to liim by lier a valualjle cargo of provisions and merchan- dise; the vessel to proceed to Europe with a cargo of coffee. The intestate resided in New York, and it is admitted by the case that he died Apr. 10, 1823. The respondent, at the time this transaction and corresirjud- dence took place, was a resident of Jacmel, in the Island of St. Domingo. There are sev- eral other letters from the respondent to the intestate, which I deem not necessary to ad- vert to in the view here taken of this case. Upon a rigid and critical examination of tlie correspondence and the testimony, I am un- able to ix?rceive that the respondent ever in- timated to the intestate that he withdrew his proposition of Dec. 24, offering to dispose of his interest in the shipment of brandy, or that he considered the intestate's letter of Jan. 17 as a rejection of that offer; but, on the other hand, the letter from the respondent of Mar. 28 shows pretty clearly, not only that this was not so considered by him, but that he wished to confirm what he had previously written, urging the intestate to close with the offer upon the terms proposed in the let- ter of Dec. 24. This would not probably have been done in the terms here used, if the propo- sition for the sale had been considered as re- jected. It cannot, I apprehend, be contended, with any probability of success, that the respond- ent's letter of Apr. 21 contains any matter which goes to show he did not consider the first offer of sale on his part, as still oi>en. The respondent must have known, and did know no doubt, that when he wrote this last letter, his previous letter to the intestate, dated Mar. '28, had not been received when the letter under date of Mar. 25 was written, advising tliat tlie adventure had been talion agreeably to the proposition contained in tlie respondent's letter of Dec. 24. In my opinion it was competent for the respondent to have limited the time in which his offer might have been accepted, and to have stated, "If you accept by Apr. 1 it will be in time." or he might have left the pro- posals open indefinitely. When advised of the safe arrival of the brandy, and that the intestate had decided to talce it to his own accoimt, and while he still supposed the in- testate was alive, the respondent made no objection, but acquiesced in what had been done. It is not urged that the contract de- pends upon either of the letters written by the respondent which were not received by the intestate in his lifetime, any farther than those letters afford evidence of the mind and intent of the party. 4S OFFER AND ACCEPTANCE. If this mode of reasoning, in relation to the facts in this case, be correct, and the intes- tate accepted of an offer tendered to him by the respondent, then was it necessary for the Intestate to know, before the contract was finally closed and binding upon the parties to it, whether the respondent assented or not. This brings me to a consideration of the law involved in this case. In the construction of contracts and agree- ments, the intention of the parties and the substance of the contract ai'e tx) be sought for more than the form of the words. Pothier says we ought to examine what was the com- mon intent of the contracting parties, rather than the grammatical sense of the terms (2 Com. Cont. 53o); and Plowden lays down a rule, that in contracts it is not material which of the parties speaks the words, if the other agrees to them; for the agreement of the minds of the parties is the only thing the law respects in contracts; and such words as ex- press the assent of the parties and have sub- stance in them are sufficient. And again; if any persons are agreed upon a thing, and words are expressed or written to make the agreement, although they are not apt and usual words, yet, if they have STibstance in them tending to the effect propos»!d, the law will take them to be of the same effect as usual words; for the law always regards the intention of the parties, and will apply the words to that which in common presumption may be given to their intent. Ch. B. Comyn also states, that an agreement or contract shall have a reasonable construction accord- ing to the intent of the parties; and the rule of construction adopted by the courts in this state and in England, is that in case of doubt, the words of a promise or covenant shall be taken most strongly against the promisor or covenanter. An agreement is ag- gregatio mentium; that is, where two or more minds are united in a thing done or to be done, or where a mutual assent is given to do or not to do a particular act; and every contract or agroement ought to be so cer- tain and complete that each party may have an action or other remedy upon it. These general principles appear to be full of sound sense and good reason. A review of the numerous adjudged cases which have a bearing either directly or indirectly upon the questions now under consideration, seems to me not necessary. I shall, therefore, ad- vert to one of them only. The case of Cook v. Ludlow, 5 Bos. & P. 2. 119, was this: The defendant, who re- sided near Bristol, by letter, requested the plaintiff, who lived in London, to send by any conveyance which would reach Bristol a patent chaff-cutter and two or three pairs of knives, and also requested that he might be informed when the same were sent, that he might know when and where to send for the articles. The articles were sent to a wharf in London, directed to the defendant, and the wharfinger's receipt taken by the plaintiff. The defendant was advised by mail that the articles had been shipped by a vessel called the Commerce, Chas. Forquaroau. The pack- age containing the chaff-cutter and knives was not in fact shipped for Bristol by the Commerce, but was put on board the Nancy, which left Loudon about three months after the articles were delivered at the wharf. No correspondence or communication passed be- tween the parties for about fifteen months after the goods were actually shipped, when the plaintiff applied for payment of the de- mand, who shortlj' afterwards received a let- ter from the defendant stating that he had not received any chaff-cutter, although he had repeatedly inquired for it at Bristol imtil the time of the aiTival of the Commerce. The plaintiff then wrote the defendant, informing him that on inquiry it was ascertained that the package, containing the chaft"-cutter, had been sent by the Nancy to Bristol, and this was the first intimation the defendant re- ceived that the chaff-cutter had been sent by this vessel. The question in this case was, whether the plaintiff was entitled to recover^ and the court held he was, observing, the article was sent in the common course accord- ing to order, and the defendant was bound to give notice in due time that he had not re- ceived it. Heath and Kooke, JJ., observing that the plaintiff" had done everything in that case he was bound to do, and the defendant was guilty of gross negligence in not giving earlier notice. In this case, I apprehend, the contract of sale was consummated upon the delivery of the goods agreeable to the defend- ant's order, and took effect from the time of such delivery at the wharf or place from whence they were to be transported to the defendant at Bristol. The whai-finger or car- rier was neither of them the agent of the plaintiff. Here the minds of the parties met, because the orders of the defendant had been strictly followed and attended to; but did the defendant know the fact at the time it was done? Let us suppose a case that might have arisen in the cause under consideration, and test it by the above rule. Had Firebrace, Davidson & Co. shipped the 200 pipes of brandy in conformity to the order of the re- spondent upon them, would he have been at liberty to refuse taking it, on its arrival in this country, and would he have been held not liable to pay the amount of the invoice price, suppose it to have been lost by ship- wreck or capture. I do not doubt but the resi)ondent would have been liable to pay for the shipment of brandy from the time the terms of his order had been fulfilled; and this too, although he might not have known that the article had been sent. The minds of the parties met at the time the brandy was actually shipped agreeably to directions. Entertaining no doubt of the fact that the respondent at all times, up to Apr. 21, con- sidered his offer of Dec. 24, 1822, as open to the intestate for his aceptance upon the terms offei'ed, the letter of aceptance of Mar. 25. COMMUXICATIOX BY CORRESPOXDENCE. 49 1823, clasing with the terms of the offer, con- summated a valid and binding contract be- tween the parties; and from that time the intestate was liable to tlie respondent for the full amount of the value. But it is now urged by the respondent that certain infor- mation was withheld by the intestate, and that he has lost the interest on the amount, aud that there was a difference in the rate of excliange, which operated against him be- tween the time the offer was made and the acceptance; such, however, was not his com- plaint when he wrote the intestate on the 21st Api-il. As a general creditor, he might be entitled to interest, and compensation for any loss he might have sustained in conse- quence of the rate of exchange, being more to his disadvantage at the time the contract was closed, than it was when the offer was made. Sound policy forbids that mercantile contracts should depend for their validity upon considerations of this kind. Having arrived at the conclusion, that here was an absolute sale of all the right and in- terest of the respondent to the shipment of brandy, it now remains to inquire, whether he has a lien upon the whole or any pai't of it as a creditor, and whether the doctrine of stoppage in transitu, is applicable. K I am right in respect to the sale of the respond- ent's Interest, then clearly the transitus is gone as to 150 pipes of brandy, which were sold in the lifetime of the intestate; the sub- ject was entirely out of the possession of the vendor; aud I did not imderstand that it was contended upon the argument, that the right of the respondent to this portion of the adventure could be sustained upon this prin- ciple, if a contract had been made. The question in regard to the 50 pipes seems to me to be presented in the following shape, and accompanied with these peculiar circumstances. The goods were in the pos- session of the vendor and vendee, as partners by legal construction. The respondent was never in actual possession, except by the in- testate; and according to the iwsition here assumed, the goods were in tlie actual and uncontrollable possession of the intestate, and when the contract was finally closed, the 50 pipes of brandy lay in the public store, under the direction of the vendee, who was himself joint ovsTier with the respondent. The transitus of the goods and, consequent- ly, the right of stoppage, is determined by the actual deliverj' to the vendee, or by cir- cumstances which are equivalent to actual delivery. It will continue until the place of deliveiy be in fact the end of the journey of the goods, and they have arrived to tiie pos- session, or under the direction of the vendee himself. 2 Kent, Comm. 430. If the goods have an-ived at an intermediate place, where they are placed under the orders of the vendee, and are to remain statioiiaiy until they receive his directions to put them again in motion for some new and ulterior desti- nation, the transitus is gone. 2 Kent, Comm. HOPK. SE L. CAS. COST. — 4 431. The goods in this case were not In their transit; they had amved at their des- tination, and wei"e under the domiuiou, and subject to the ownership of the intestate. Nothing remained to be done by the re- spondent to complete the transfer of the brandy. But in my judgment, another view of the case is er to stand, that Mactier might determine to take the brandy or not, as he said he should on hearing ftirther. In Poth. Mar. Cont. pt. 1, § 11, Nos. 31. 32, it is said that: "In the contract of sale, as in oth- er contracts, the consent of the parties can in- tervene, not only between persons present, but between the absent, by letters or by messenger. In order that the consent should S4 UFFER AND ACCEPTANCE. Intervene in the latter case, it is uecessary that the will of the party who has written to the other to propose to him the bargain shall have continued until the time at which his letter shall have reached the other party, and at which the other party shall have de- clared that he accepted the bargain. This will is presumed to have continued, so loug as nothing appears to the contrary." Must it not be so upon general principles? Again, in 3 Starkie, Ev. 12C>2, it is said: "Where the existence of a particular subject matter or relation has once been proved, its continu- ance is presumed till proof be given to the contraiy." Lord EUeuborough, in IG East, 55, remarks: "It is fair to presume things continue in the same state, in the absence of all proof of their having been altered." I admit that this presumption may be re- butted by lapse of time, or by the fact that the brandy was in an unsafe or perishable coudition, which is not the case here. In the present case the continuance of the vendor's proposition is not left to presumption alone, as in ordinary cases; Frith shows the con- tinuance affirmatively by his letters, and tlms places it beyond mere presumption, either one way or the other. He remarks in his letter of Mar. 28, "with regard to this adventure, I would wish to confirm, if altogether satisfac- tory to you, what 1 mentioned to you in my previous letter, in reply to yours of the 17th of ,Tanuai-y." It is manifest from this that he still wished to sell as he before offered. If this is not sufficient to show his intention to sell, his letters of Apr. 21 and 22 clearly prove that Frith never changed his mind as to selling the brandy; that he considered the offer to sell open, and not withdrawn or re- tracted, but accepted; for his letter of Apr. 21 was after receiving Mactier's letter say- ing that he had taken the brandy. Mar. 25 their minds meet. This completes the sale in the present case; a formal delivery of the brandy was not necessary, as it was in Mactier's possession. It was iu"ged on the argument that these letters of April and May could not confirm the sale, as Mactier died before they were written, to wit: Apr. 10; but to my understanding there is sufficient without these letters. It appears to me, as I have before remarked, that Frith's letter of Mar. 28, and the two in April, and his last of May G, are sufficient to show that the complainant's mind and continued desire was to sell. Again, what must Mactier have supposed? He had done all in his power to the final con- summation of this sale; Frith, by his subse- quent act, it seems to me, ratified it, and Mactier's death could make no difference; it related to the time of Mactier's letter, and confirmed his acceptance and perfected the sale by that relation. 2 East, 227. Frith could have insisted upon and enforced the bargain, and the administrators could not have refused. Again, in 2 Ld. Raym. 930, Holt says, "A consent subsequent will amount to an au- thority precedent." In 1 Liv. 445, 9, per Pow- ell, J., "A subsequent ratification is equiva- lent to an original authority." Again, "There are three sorts of agreements— an agreement executed, an agreement subsequent to a thing done, and an agreement executory." Flowd. 5a," Ga. In Com. Dig. tit. "Agi-eement," A, 1, these rules are all cited. In 12 Johns. 300, and in 3 Cow. 281, it is settled. "A subse- quent assent may be inferred from circum- stances which the law considers equivalent to an express ratification." In Com. Dig. tit. "Agreement," A, 2. An agreement executed often amounts to a bargain and sale. So where an assent subsequent is given to an act precedent, by such assent the agreement is executed. Is it not then just to say this con- firmation of Frith's shall relate to the life- time of Mactier'.' In Com. Dig. tit. "Bargain and Sale," it is said: "If a bargainor or bar- gainee die after the indenture executed, and before enrollment, the estate passes to the bargainee and his heirs, if it be enrolled with- in six months, yet the seisin continues in the bargainee." So in Cro. Jac. 512, and Vin. Abr. tit "Relation," F, G, per Coke and Mon- tague, "execution of all things executory, re- spects the original act, and have relation thereto, and all make but one act, though done at several times." So, where there are divers acts concurrent to make one estate, the original act shall be preferred, and to this the other acts shall come. So, where two times are requisite to the perfection of an act, it shall be said upon their consummation to receive its perfection from the first. Dyer, 244. So, of two acts, as in Bingham's Case, 2 Coke, 93. "Where to the perfection or con- summation of a thing two accidents are req- uisite, and the one happens in the time of one, and the other in the time of the other, in such case neither the one nor the other shall take benefit of this, because both are requisite to the consummation of the thing." How, then, does death make any difference? If it does, it is to be referred to the consumma- tion, to the first act, to the lifetime, where, if neither party had died, it would not have been referred to such first act. See Cro. Eliz. 622. The view which I have taken of this case, renders it wholly unnecessai-y for me to ex- amine the point of stoppage in transitu. Considering, then, that this agreement was consummated in tlie lifetime of Mactier, upon the principles and cases above adverted to, I have come to the conclusion that the adminis- trators had a right to act, and ^vould have been justifiable in taking, if they had not al- ready done so, the brandy into their own po.s- session, as a part of the assets of the de- ceased. It is laid down by Winter's Office of Executor, 82, "Goods contracted for by tes- tator, not delivered in his lifetime, must be delivered to his executors," and I can see no good reason why the same rule should not be extended to administi'ators. COMMUNICATION BY CORRESPONDENCE. 55 The view, therefore, which I have taken of this case renders it unnecessary for me to discuss the other points made on the argu- ment; my opinion is, tliat the decree of the chancellor, so far as it relates to the sale of the brandy, should be reversed. By Mr. Senator THKOOP. Mactier and the respondent were equally interested as part- ners In the triple adventure, of which the brandy shipment was the commencement, but which extended to a second shipment of pro- visions to the amount of tlie invoice cost of the brandy from New York by Mactier to the respondent :.t Jacmel, and a third shipment of coffee, with the proceeds, from thence to France in French vessels, to be there applied to the payment of the brandy. The order for the brandy was sent by the respondent to his friends in Havre, Sep. 5, 1822, expectinj,' the arrival of the shipment "at New York, in January or before." As early as Oct., how- ever, he evinces a desire to be released from the adventure, and offered his interest to the brother of Mactier, without success. This disposition appears to have continued, and is expressed in his letters on this subject. The account cm-rent, and the correspond- ence show, that tlie respondent was largely in arrear to Mactier, and he frequently al- ludes to it, and excuses his inability or delay to make remittances. To have the value of the brandy shipment placed to his credit, or made to cover his transactions on account at New York, seems to have been one prevailing object in offering to part with his interest. He also wished to bring his concerns to a cer- tain focus, and to confine his business as much as possible; and one other prevailing consideration was to be released from the two shipments originally planned, and consequent upon the brandy adventure. These considera- tions received additional weight and urgency from the prospect of a war between France and Spain, and the inevitable embarrassment of the trade of the island, thus likely to en- sue, in which he was engaged. The joint ad- venture, in all the three operations, would in that event be subject to war risks, and even the brandy shipment became a hazardous and doubtful speculation. It was his desire to be released from all; and the tenor of all his let- ters evinces the continual interest which he had in effecting such an object. But the brandy had been ordered, and could not be refused by the parties; it was afloat, or would be so, before the order could be revoked; and the consequences of this part of the adven- ture were inevitable. Their interest was joint, the profits or losses were to be ascer- tained when the third and last shipment was closed, and then to be shared equally; and neither could arrest the adventure, or be re- leased from any part of it, except by the con- sent of the other. It appears from the correspondence that these parties were on terms of intimate and confidential friendship and intercourse, and when the respondent in his letter of Dec. 24, 1S22, proposed to Mactier. "to take the ad- venture solely on your own account, holding the value to cover the transactions to my 'ac- count in New York," the proposition was not probably new or unexpected to Mactier. His letter in reply seems intended, or is calculated to inspire greater confidence of a good issue, and to quiet any doubts of a favorable result. His answer is dated .Ian. 17, 1S23, saying that he is informed that the brandy would be ship- ped, and leave Bordeaux about Dec. 1. "This has been from the first a favorite speculation with me, and am pleased to say it still prom- ises a favoraljle result; but to render it com- plete, I am desirous the speculation should go forward in the way first proposed, thereby making it a triple operation; as you have, however, expressed a wish that I should take the adventure to my own account, I shall de- lay coming to any determination, till I again hear from you. The prospect of war between France and Spain may defeat the object of this speculation, as far as relates to ship- ment of the provisions hence to Ilayti, to be invested in coffee for France, per French ves- sels; in which case I will at once decide to take the adventure to my own account. "The next arrival from Europe will probably de- cide the question of peace or war, and I will lose no time in communicating the same to you." "Let what will happen, I trust you will in no way be a sufferer." He commimi- cates all his information of the prospect of the war. I consider this letter as declaring with suffi- cient certainty, to this effect, "notwithstand- ing my information which I communicate herein, our triple operation promises a favora- ble result and I shall delay till I hear from you again, and then determine upon your offer, either to take or reject. But if the pros- pect of war shall cut up our two adventures consequent upon this, I will at once decide to take your offer, and will lose no time in com- municating the same to you. In either case, I trust you will not be a sufferer." I observe here, that from the tenor of this letter, and also of respondent's inclosing the order for the brandy, both parties expected its an-ival daily, and that the respondent's offer and his answer were written under such expectation, and that in the respondent's letter of Mar. 28, the offer is renewed, when he supposed it had long since arrived. That Mactier considered his reply to the offer and obligation on his part to take, so soon as the prospect of war was so far con- firmed, as to render it proper to break up the two succeeding shipments, appears in two ways. The clerk of Mactier says, that wlien the brandy arrived, the war. was uncertain, Mactier then concluded that the original voy- age should be broken up, being unprofitable. He consulted Bane, and referred to this let- ter, and upon that consultation, it was con- cluded that "he was obliged to take the brandy, whether it came to a good or bad 56 OFFER AXD ACCEPTANCE. market." It appears, from Alexander Mac- tier's testimony, that tlie speculation was profitless to Mactier. The consultation with Champlin agrees throughout so well with the transaction and letter of Jan. 17, and with no other, that it must have been at that time; for then, it would seem from his letter, "he was inclined to take the brandy." But his letter of Mar. 25, explains and con- firms his idea that this letter of Jan. 17 was obligatory upon him, whether the market was good or bad. He then says: "I have to ad- vise the arrival of the 200 pipes of brandy, and in consetiuonce of the probability of the war between France and Spain, and in com- pliance with the wish expressed in your re- garded favor of the 24th December, and my answer thereto of the 17th January, I have decided to take the adventure to my own ac- count." In consequence, he gave the respond- ent ."redit. according to his original proposi- tion. Nothing more was wanting to prove iind enforce this bargain against Mactier or his representatives, than these letters and acts. Notwithstanding the bargain was com- plete against Mactier, the fact of ownership, as expressed by Bane in his testimony, was contingent. The assent of the respondent was not then known; it had not been expressly given, and if the expected letter from the re- spondent, in reply to the one of Jan. 17, had contained his dissent or a retraction of his original offer, the adventure would have been thrown back to its original state and inter- ests Did the respondent ever assent to this con- tract, so as to vest the title of the brandy ab- solutely in Mactier before his death? An as- sent to a contract may be inferred from cir- cumstances, from voluntary inaction or for- bearance to act. Thus, a man by his silence, if he has an opportunity of speaking and knowledge of what is doing, is supposed to give his assent to what is done. On Mar. 25, when the credit was given, a long time had elapsed since .Tan. 17, and no dissent to that letter or retraction of the offer, had been received; still the respondent's letter might have been sent, and the delay reasonably ac- counted for, if in fact he had dissented or re- tracted. And here, I remark, that this cir- cumstance siifiiciently explains the contents of Mactier's letter of Mar. 1,3, in which he Informs the respondent that from the last dates received by him, war might be con- sidered inevitable; and says of the brandy: "I am looking daily for its arrival; it is to be regretted the order was not more promptly executed, as the delay, I fear, will operate to our disadvantage." As promised in his let- ter of Jan. 17, he communicates the first in- telligence of peace or war, but having no let- ter from the respondent since his of that date, he does not retract what he had then said, nor does he treat the lapse of time as an assent or confirmation of it by the respondent. The language, "our disadvantage," is used in reference to the then state of the corre- spondence, and expressed their joint interest in case the respondent had in fact dissented or retracted his offer. But I consider the assent of the respondent to this contract to rest upon surer ground than any circumstance of the unsatisfactorj- and doubtful character of mere lapse of time. His letter of Mar. 7, must, under all the circum- stances, be considered a legal acquiescence and consent on his part. And while I would admit that proof of any attempt by a "swift messenger," or any other less rapid means, to Avithdraw it, or to dissent from the condi- tional acceptance of Mactier, or to retract his original offer, would have materially weaken- ed or annulled its effect, it is manifest that no such attempt was made, and that all the circumstances show a contrary intention. When the respondent wrote the lettter of Mar. 7, Mactier's letter of Jan. 17 was be- fore him; and if he did not wish to have his original offer stand the chances mentioned by Mactier, be was bound to have improved the first opportunity to withdraw it. In 1 Liv. Ag. 48, and the cases there cited, is found this rule: "If a man receives a letter, the relation of the parties favoring the presump- tion, he is presumed to approve whatever is contained in the letter unless he immediately makes known his dissent. But the reception of a letter not contradicted, does not always amount to a ratification unless it is accom- panied with circumstances capable of show- ing an intention to ratify." Also, 2 .Johns. Cas. 424; 12 Johns. 300; 3 Cow. 281. This is the rule of reason and plain dealing, as well as of the law. If this letter contained no ref- erence to the negotiation, his silence and for- bearance to improve this opportunity to dis- sent should be held to bind him. He, how- ever, says: "I have received your esteemed favors of the 17th and 21st January, and note their respective contents." Is there anything wanting to bring the respondent within the familiar case and known rule, of a man who, knowing what is doing and having an oppor- tunity of speaking, by his silence is held to give his assent to what is done? But if there could be any doubts of this case coming ^'ully within the rule cited from Liv- ermore, the letter of Mar. 7, is followed by another from the respondent of the 28th, and still another of Apr. 21, each capable of show- ing his intention to ratify his original offer, and confirming his assent to what had been done by Mactier. On Mar. 28, after express- ing his expectation that the brandy had ar- rived long ere that time, unless the rupture we have a report of, between France and Spain took place before the sailing of the ves- sel, he says: "With regard to this adventure I wish to confirm, if entirely satisfactory to you. what I mentioned to you some time ago, and which I omitted to repeat in my previous letter, in reply to yours of the 17th JanuaiT-" In his letter of Apr. 21. he acknowledges the receipt of Mactier's "esteemed favor of the 25th, with that of the 5th inst, and notes par- COMMUNICATION BY CORRESPONDENCE. 57 ticularly tboir respective contents, to which principaiiy mj' previous respects (.being his of the 2Sth March and 12th current) reply;" and he then ordered the shipment of a cargo to him. Hence It appears that the presumed le- gal effect of the letter of Mar. 7. is precisely the intended meaning of the respondent, and, as he expresses himself, "I note the contents," it means, he approves and assents to them. Under all the circumstances, I can enter- tain no doubt that the letter of Mar. 7, was intended, and should be considered, as an ex- press assent to the conditional acceptance and the reply of Mactier in his of Jan. 17. He allowed his correspondent and confiden- tial friend to proceed to close the bargain, as he had informed him he should do upon the receipt of his letter then in writing, or upon the happening of the contingency then in prospect. His letters show of how little re- gard, in comparison to his anxiety to be re- leased from the adventure, was the fact of the arrival of the brandy at New York, or the price at which it would sell; his readiness to bear the joint risks of transportation, if such was the intention of Mactier, in delaying to release him before its arrival, and his will- ingness to wait the happening of the event referred to by Mactier, upon which he would determine to take it to his own account Mac- tier died Apr. 10; but from Apr. 21 (if not be- fore), until that event was known at Jacmel, he could not have doubted, nor (as his letters show) have regretted one moment his release from the triple adventure, nor the absolute sale of the brandy to Mactier. Shall he now be heard to complain that Mactier did not close the bargain till its safe arrival at New York, and a sale of three quarters of the brandy? — that he had run all the risks of the s»^a? Before he does so, he must show that Mar. 7, or some other early oppori;uiuty, or in some way, he refused to encounter such risks; or dissented from any release after the brandy should have arrived, or expressed, or attempt- ed to express his non-concurrence to the con- ditional acceptance and understanding of Mac- tier. Both parties expected its arrival before the day when he was writing; and from the contents of Mactier's letter of Jan. 17, he must have supposed that it was then a long time in New York; his letter was to encounter a further delay in its transmission, and when it should be received Mactier would see in it the usual approbatory expression, "I note Its contents." It would be sanctioning a danger- ous departure from good faith and plain deal- ing in a commercial correspondence if any other construction or effect should be given to this letter of Mar. 7. If this letter had been received by Mactier in his lifetime, and It is stated by the chancellor to have been so received Apr. 7, before which time he had taken the brandy to his own account, and given the correspondent credit according to his oi'iginal proposition, nothing would have been wanting, according to my view of the effect of these letters, to a perfect and con- summated bargain Mar. 25. The doctrine of stoppage in transitu, and the question whether the representations of this or any other vendee can ratify, consent to or affirm a contract in fieri at the time of the death, do not appear to me to form appro- priate or necessary Inquiries in this case. The case of Conyers v. Ennis, decided by Judge Story (2 Mason, 23 Opinion of Baggallay, L. J., omitted. Finlay & Dillwyn, for defendant, contend- ed that the defendant was not a shareholder, for it was necessary that the allotment of shares should not only be made but also commiuiicated to the defendant; that a let- ter posted but not received was not a com- munication to the defendant of the allot- ment, and that there was therefore no con- tract between the parties. Mr. Wilberforce, and G. Arbuthnot (W. G. Harrison, Q. C, with them), for plain- tiffs, contended that the contract was com- plete by acceptance when the letter was posted, and that the plaintiffs were not an- swerable for casualties at the post office preventing the arrival of the letter. In addition to the authorities mentioned in the judgment, the following cases were cited during the argument: Reidpath's Case, L. R. 11 Eq. 8G; Townsend's Case, L. R. 13 Eq. 148; WaU's Case, L. R. 15 Eq. 18; Gunn's Case, L. R. 3 Ch. 40; Dunmore v. Alexander, 9 Shaw & D. 190; Pellatt's Case, L. R. 2 Ch. 527: Ex parte Cote, L. R. 9 Ch. 27; Taylor v. Jones, 1 C. P. Div. 87; Pol. Cont. p. 13. Cur. adv. vult. THESIGER, L. J. In this case the defend- ant made an application for shares in the plaintiffs' company, under circumstances from which we must imply that he authorized the company, in the event of their allotting to him the shares applied for, to send the notice of allotment by post. The company did al- lot him the shares, and duly addressed to him and posted a letter containing the notice of allotment, but upon the finding of the jury it must be taken that the letter never reach- ed its destination. In this state of circum- stances, Lopes, J., has decided that the de- fendant is liable as a shareholder. He bas- ed his decision mainly upon the ground that the point for consideration was covered by authority binding upon him, and I am of opinion that he did so rightly, and that it is covered by authority equally binding upon this court. The leading case upon the subject is Dun- lop v. Higgins, 1 H. L. Cas. 381. It is true that Lord Cottenham might have decided that case without deciding the point raised in this. But it appears to me equally true that he did not do so, and that he preferred to rest and did rest his judgment as to one of the mat- ters of exception before him upon a principle which embraces and governs the present case. If so, the court is as much bound to apply that principle, constituting as it did a ratio deciden- di, as it is to follow the exact decision itself. The exception was that the lord justice gener- al directed the jury in point of law that, if the pursuers posted their acceptance of the offer in due time, according to the usage of trade they were not responsible for any casualties In the post office est.Tblishment This direc- COMMUNICATION BY CORRESPONDENCE. 59 tion was wide enough in its terms to Include the caae of the acceptance never being deliv- ered at all; and I^ord Cottenham, in express- ing hLs opinion that it was not open to objec- tion, did so after putting the case of a letter containing a notice of disliuuour posted bj' the holder of a bill of exchange in proper time, in which case he said (1 II. L. Cas., at page 300): "Whether that letter be delivered or not is a matter quite immaterial, because for ac- cidents happening at the post otiice he is not responsible." In short. Lord Cottenham ap- pears to me to have held that, as a rule, a contract formed by correspondence through the post is complete as soon as the letter ac- cepting an offer is put into the post, and is not put an end to in the event of the letter never being delivered. My view of the ef- fect of Dunlop V. Higgins, 1 H. L. Cas. 3S1, is that talien by James, L. J., in Harris' Case, L. R. 7 Ch. 587. There, at page 502, he speaks of the former case as "a case which is bind- ing upon us, and in which every principle argued before us was discussed at length by the lord chancellor in giving judgment." He adds, the lord chancellor "arrived at the con- clusion that the posting of the letter of ac- ceptance is the completion of the contract; that is to say, the moment one man has made an offer, and the other has done something binding himself to that offer, then the con- tract is complete, and neither party can aft- erwards escape from it." Mellish, J., also took the same view. He says, at page 505: "In Dunlop V. Higgins, 1 H. L. Cas. 3S1, the ques- tion was directly raised whether the law was truly expounded in the case of Adams V. Lindsell, 1 Barn. & Aid. 681. The house of lords approved of the ruling of that case. The Lord Chancellor Cottenham said, in the course of his judgment, that in the case of a bill of exchange notice of dishonour, given by putting a letter into the post at the right time, had been held quite sufficient whether that letter was dehvered or not; and he re- ferred to Stocken v. Collin, 7 Mees. & W, 515, on that point, he being clearly of opiniou that the rule as to accepting a contract was exactly the same as the rule as to sending notice of dishonour of a biU of exchange. He then referred to the case of Adams v. Lind- sell, 1 Barn. & Aid. 681, and quoted the ob- servation of Lord Ellenborough, C. J. That case therefore appears to me to be a direct decision that the contract is made from the time when it is accepted by post." Leaving Harris' Case, L. R. 7 Ch. 587, for the moment, I turn to Duncan v. Topham, 8 C. B. 1225, in which Cresswell, J., told the jury that if the letter accepting the contract was put into the post office and lost by the negligence of the post office authorities, the contract would nevertheless be complete; and both he and Wilde. C. J., and Maule, J., seem to have understood this ruling to have been in ac- cordance with Lord Cotteuham's opinion in Dunlop V. Higgins, 1 H. L. Cas. 3S1. That opinion therefore appears to me to constitute an authority directly binding upon us. But if Dunlop V. Higgins, 1 H. L. Cas. 381, were out of the way, Harris' Case, L. R. 7 Ch. 5S7, would still go far to govern the pre.sent. There It was held that the acceptance of the offer at all events binds both parties from the time of the acceptance being posted, and so as to prevent any retraction of the offer be- ing of effect after the acceptance has been posted. Now, whatever In abstract discus- sion may be said as to the legal notion of its being necessary, in order to the effecting of a valid and binding contract, that the minds of the parties should he brouglit togetlier at one and the same moment, thiit notion is practically the foundation of English law upon the subject of the formation of contracts. Unless therefore a contract constituted by correspondence is absolutely concluded at the moment that the continuing offer is accepted by the person to whom the offer is addressed, it is difficult to see how the two minds are ever to be brought together at one and the same moment. This was pointed out by Lord Ellenborough in the case of Adams v. Luid- sell, 1 Barn. & Aid. G81, which is recognized authority- upon this branch of the law. But on the other hand it is a principle of law, as well established as the legal notion to which I have referred, that the minds of the two parties must be brought together by mu- tual communication. An acceptance, which only remains in the breast of the acceptor without being actually and by legal imphca- tiou communicated to the offerer, is no bind- ing acceptance. How. then, are these ele- ments of law to be harmonized in the case of contracts formed by correspondence through the post? I see no better mode than that of treating the post office as the agent of both parties, and it was so considered by Lord liomilly in Hebb's Case, L. R. 4 Eq., at page 12, when in the course of his judgment he said: "Dunlop v. Higgins, 1 II. L. Cas. 381, decides that tlie posting of a letter accepting an offer constitutes a binding contract, but the reason of that is that the post office is the common agent of both parties." Aldersou, B., also, in Stocken v. Collin, 7 Mees. .& W., at page 516,— a case of notice of dishonour, and the case referred to by Lord Cottenham,— says: "If the doctrine that the post office is only the agent for the delivery of the notice were correct, no one could safely avail himself of that mode of transmission." But if the post office be such common agent, then it seems to me to follow that, as soon as the letter of acceptance is delivered to the post office, the contract is made as complete and final and absolutely binding as if Uie acceptor had put his letter into the hands of a messenger sent by the offerer himself as his agent to de- liver the offer and receive the acceptance. What other principle can be adopted short of holding that the contract is not complete by acceptance until and except from the time that the letter containing the acceptance is delivered to the offerer, a principle which has €0 OFFER AND ACCEPTANCE. been distinctly negatived? Tliis difficulty was attempted to be got over in Telegrapli Co. V. Colson, L. R. 6 Excb. IDS, which was a case dii-ectly on all fours witti the present, and in which Kelly, C. B., at page 115, is re- ported to have said: "It may be that in gen- eral, though not in all cases, a conti-act takes effect from the time of acceptance, and not from the subsequent notification of it As in the case now before the court, if the letter of allotment had been delivered to the de- fendant in the due course of the post, he would have become a shareholder from the date of the letter. And to this effect is Pot- ter V. Sanders, 6 Hare, 1. And hence perhaps the mistake has arisen that the contract is binding upon both parties from the time when the letter is written and put into the post, although never delivered; whereas, although it may be binding from the time of acceptance, it is only binding at all when afterwards duly notified." But with deference I would ask how a man can be said to be a shareholder at a time before he was boimd to take any shares, or, to put the question in the fonn in which it is put by Mellish, L. J., in Harris' Case, 7 Ch. App. 5S7, at page 596, how there can be any relation back in a case of this kind as there may be in bankruptcy. If, as the lord justice said, the contract, after the letter has arrived in time, is to be treated as having been made from the time the letter is posted, the reason is that the contract was actually made at the time when the letter was posted. The principle indeed laid down in Harris' Case, 7 Ch. App. 587, at page 596, as well as in Dunlop v. Higgins, 1 H. L. Cas. 381, can really not be reconciled with the decision in Telegi-aph Co, v. Colson, L. R. 6 Exch. 108. James, L. J., in the passage I have already quoted,— Harris' Case, L. R. 7 Ch. 592,— affij-ms the proposition that when once the acceptance is posted neither party can afterwards es- cape from the contract, and refers with ap- proval to Hebb's Case, L. R. 4 Eq. 9. There a distinction was taken by the master of the roUs that the company chose to send the letter of allotment to their own agent, who was not authorized by the applicant for shares to receive it on his behalf, and who never de- livered it; but he at the same time assumed that if, instead of sending it through an au- thorized agent, they had sent it through the post office, the applicant would have been bound although the letter had never been delivered. Mellish, L. J., really goes as far, and states forcibly the reasons in favour of this view. The mere suggestion thrown out at the close of his judgment, at page 597, when stopping short of actually overruling the decision in Telegraph Co. v. Colson, L. R. 6 Exch. 108, that although a contract is complete when the letter accepting an offer is posted, yet it may be subject to a condition subsequent that, if the letter does not arrive in due course of post, then the parties may act on the assumption that the offer has not been accepted, can hardly, when contrasted with the rest of the judgment, be said to represent his own opinion on the law upon the subject. The contract, as he says, at page 596, is actually made when the letter is posted. The acceptor, in posting the letter, has, to use the language of Lord Blackbiu-n, in Brogden v. Directors of Metropolitan Railway Co., 2 App. Cas. 666, 691, "put it out of his control, and done an extraneous act which clenches the mattter, and shews beyond all doubt that each side is bound." How, then, can a casual- ty in the post, whether resulting in delay, which in commercial transactions is often as bad as no delivery, or in nondelivery, unbind the parties or unmake the contract? To me it appears that in practice a contract com- plete upon the acceptance of an offer being posted, but liable to be put an end to by an accident in the post, would be more mis- chievous than a contract only binding upon the parties to it upon the acceptance actually reaching the offerer; and I can see no prin- ciple of law from which such an anomalous contract can be deduced. There is no doubt that the implication of a complete, final, and absolutely binding con- tract being formed, as soon as the acceptance of an offer is posted, may in some cases lead to Inconvenience and hardship. But such there must be at times in every view of the law. It is impossible in transactions which pass between parties at a distance, and have to be carried on through the medium of cor- respondence, to adjust conflicting rights be- tween innocent parties, so as to make the con- sequences of mistake on the part of a mutual agent fall equally upon the shoulders of both. At the same time I am not prepared to admit that the implication in question will lead to any great or general inconvenience or hard- ship. An offerer, if he chooses, may always make the formation of the contract which he proposes dependent upon the actual communi- cation to himself of the acceptance. If he trusts to the post he trusts to a means of communication 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 him, he can make inquiries of the person to whom his offer was addressed. On the other hand, if the contract is not finally concluded, except in the event of the acceptance actually reaching the offerer, the door would be open- ed to the perpetration of much fraud, and, putting aside this consideration, considerable delay in commercial transactions, in which despatch is, as a rule, of the greatest conse- quence, would be occasioned; for the acceptor would never be entirely safe in acting upon his acceptance until he had received notice that his letter of acceptance had reached its destination. Upon balance of conveniences and incon- veniences it seems to me, applying with slight alterations the language of the supreme court of the United States in Tayloe v. Insurance Co., 9 How. SOU, more consistent with the acts and declarations of the parties in this COMMUNICATION BY CORRESPONDENCE. 61 case to considor th^^ contract complete and absolutely binding on the transmission of the notice of allotment through the post, as the medium of communication that the parties themselves contemplated, instead of postpon- ing its completion until the notice had been received by the defendant. Upon principle, therefore, as well as authority, I think that the judgment of Lopes, J., was right and should be affirmed, and that this appeal should therefore be dismissed. 62 OFFEli AND ACCEPTANCE. ^ LEWIS T. BROWNING. (130 Mass. 173.) i1 V Supreme Judicial Court of Massachusetts. Suffolk. Jan. 6, ISSl. Action foi breach of covenants in a lease. The question was whether the terms of a proposed new lease had been accepted by de- fendant The negotiations with reference to the new lease were carried on by letter and telegraph. The facts sufficiently appear in the opinion of the court O. T. Gray, for defendant D. E. Ware, for plaintiff. GRAY, C. J. In M'Culloch v. Insurance Co., 1 Pick. 2TS, this court held that a contract made by mutual letters was not complete until the letter accepting the offer had been received by the person making the offer; and the correctness of that decision is main- tained, upon an able and elaborate discus- sion of reasons and authorities, in Langd. Gont. (2d Ed.) 989-996. In England, New York and New Jersey, and in the supreme court of the United States, the opposite view has prevailed, and the contract has been deemed to be completed as soon as the letter of acceptance has been put into the post office duly addressed. Adams v. Lindsell, 1 Barn. & Aid. 681; Dumop v. Higgins, 1 H. L. Gas. 381, 398-400; Newcomb v. De Roos, 2 El. & El. 271; Harris' Case, L. R. 7 Gh. 587; Lord Blackburn, in Brogden v. Rail- way, 2 App. Cas. 666, 691, 692; Insurance Go. v. Grant, 4 Exch. Div. 216; Lindley, J., in Byrne v. Van Tienhoven, 5 C. P. Div. 344. 348; 2 Kent, Comm. 477, note c; Mactier v. Frith, 6 Wend. 103; Vassar v Gamp, 11 N, Y. 441; Trevor v. Wood, 36 N. Y. 307" Hal- lock V. Insurance Co., 26 N. J. Law. 268, 27 N. J. Law, 645; Tayloe v. Insurance Co., 9 How. 390. But this case does not require a considera- tion of the general question; for, in any view, the pei-son making the offer may al- ways, if he chooses, make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance Thesiger, L. J., in In- surance Go. V. Grant, 4 Exch. Div. 223; Pol. Gont. (2d Ed.) 17; Leake, Gont. 39, note. And in the case at bar, the letter written in the plaintiff's behalf by her husband as her agent on July 8, 1878, in California, and ad- dressed to the defendant at Boston, appears to us clearly to manifest such an intention. After proposing the terms of an agreement for a new lease, he says, "If you agree to this plan, and will telegraph me on receipt of this, I wiU forward power of attorney to Mr. Ware," the plaintiff's attorney in Bos- ton. "Telegraph me 'Yes or 'No.' If 'No,' I will go on at once to Boston with my wife, and between us we will try to recover our lost ground. If I do not hear from you by the ISth or 20th, I shall conclude 'No.' " Taking the whole letter together, the offer is made dependent upon an actual communi- cation to the plaintiff of the defendant's ac- ceptance on or before the 20th of July, and does not discharge the old lease, nor bind the plaintiff to execute a new one, imless the acceptance reaches California within that time. Assuming, therefore, that the defend- ant's delivery of a despatch at the telegraph office had the same effect as the mailing of a letter, he has no ground of exception to the ruling at the trial. Exceptions overruled. CnARACTER OF ACCEPTANCE. 63 HARRIS V. SCOTT et aL (32 Atl. 770.) fiupremc Court of New Hampshire. Rocking- ham July 28, 1893. Bill by Arthur Harris against Annie G. Scott, administratrix of the estate of George Scott, deceased, and others, for the specific performance of a contract for the sale to plaintiff by defendant administratrix of 20 shares of the capital stock of the Portsmouth Brewing Company. Bill dismissed. Tlie capital stock of the company consists of SO shares, of the par value of $.100 each. In March, 1888, the plaintiff, owning 21 shares, and George Scott, owning 20 shares, entered into the following written agreement: "For the purpose of having a better admin- istration of the affairs of the Portsmouth Brewing Company, and to prevent deals and combinations between various stockliolders for unworthy purposes, we hereby mutually and severally agree: (1) To vote the forty- one shares we own, control, or can influence, Invariably, on the same side, for the purpose of elecUcm, or on any motion made at any meeting. (2) To prevent any disagreement for whom, or for what motions, our votes should be cast, we severally agree to vote at every election for every officer and director now in office, unless both parties to this con- tract agree not to so vote, and, in case of any vacancy, not to vote for any candidate unless both parties are in favor of his election, and, further, not to vote for any change of any kind, enlargement, alterations, improvements, purchase of real estate, or change in salaries or wages, unless both are willing to vote for such purpose or purposes. (3) Tliis agree- nient to apply to directors' meetings, the same as stoc-kholders'. No dividend to be de- clared unless both are in favor of it, and the amount determined beforehand. (4) Neither party to sell his shares, or any of them, nor to buy any other shares at a higher price than the holder paid for them. (5) Either party having his .salary increased above the pres- ent amount, the other to have an Increase of similar amount (6) This agreement to re- main in force two years from date." Octo- ber 8, 1890, they agreed in writing that the foregoing contract, in all its provisions, be extended for five years from that date, and "that directions shall be left, by will or oth- erwise, to the execTitors of eivch, that, shoidd either party to this agreement die during the continuance thereof, the survivor shall have a prior right, ovei any other party, to pur- chase the shares of the capital stock * ♦ • hitherto the property of the deceased." George Scott died intestate April 24, 1892, and the defendant Annie Scott is administra trix of his estate. About the 1st of July, 1892, Annie, in answer to a letter of the plain- tiff inquiring what she proposed to do with the stock, wrote him that she desiretl to sell it; that she had' received several offers, and would give him the first right to purchase the 20 shares at $.800 each. He replied July 5th. saying: "If you have a bona tide offer of $800 for the whole twenty shares, I will pay you the same, provided you send me the names of tho.se who will pay you thLs amount, so that I may be able to resell without loss if I wish." He inclosed a check for $100, and an unconditional bill of sale for her to sign. After depr)fiiting the letter in a letter box, he received a telegram from Annie say- ing, "I wish to reconsider the letter I wrote you for the present." The next day, July Cth, the plaintiff replied as follows: "Your telegram received late yesterday afternoon. I had ineviously written you, accepting your offer." July 11th Mrs. Scott wrote the plain- tiff: "I was informed, immedmtely after sending you the letter aljout the twenty shares at $800 a share, that the parties want- ed to take only part of them, but my lawyer Informed me that a gentleman wished to take the whole twenty shares at $815 a share, so I have concluded at tliat price. The gen- tleman's name is Mr. John Sise. • • • So, if you wish to accept that price, I will comply to your demands." And the next day she re- turned the check. This offer the plaintiff, by letter, July 13th, declined to consider, claim- ing that the shares had already been sold to him. Mrs. Scott afterwards sold the shares, through Sise, to the defendant Conlon, but the formal transfer has not been executed. The plaintiff prays for a specific performance of Mrs. Scott's contract of sale, or, if that is denied, that she be decreed "to give him the first right to purchase the shares at the ex- piration of the agreement of October 8, 1890." S. W. Emery and W. H. Looney, for plain- tiff. Frink & Batchelder, for defendant An- nie G. Scott C. Page, for defendants Sise and Conlon. Mr. Mai-vin and J. E. Young, for defendant Ellen T. Scott. CARPENTER, J. No contract for the sale of the shares to the plaintiff was completed. His acceptance of Mrs. Scott's offer was con- ditional. Their minds did not meet" If, without disclosing the names of those who had offered her $S(X) a share, she had signed and returned to the plaintiff the bill of sale, he would have had the right to reject it and decline to take the stock. His letter of July 5th was a rejection of Mrs. Scott's offer, and a new proposal. Benj. Sales. § 39. To this proposal she did not assent. If the plaintiirs letter of the next day was an unconditional acceptance of her offer, it was ineffectual, because too late. It was made after he had notice that the offer was withdrawn. If, when she dispatched the telegram, she had known the contents of the plaintiff's letter of July 5th, it might be evidence tending to show that she did not object to the accept- ance on the ground that it was conditional. But at that time she had neither actual nor constructive knowledge of the condition. She made the public post her agent to receive from the plaintiff an unqualified acceptance 64 OFFER AND ACCEPTANCE. of her offer, but not to receive a counter pro- posal or conditional acceptance. She was not chargeable with knowledge of the con- dition until she received the letter. Byrne V. Van Tienhoven, 5 C. P. Div. 344; Dunlop T. Higgins, 1 H. L. Gas. 3S1; Insurance Co. V. Grant, 4 Exch. Div. 216. 221, 228; Benj. Sales, §§ 6S-75; Abbott v. Shepard, 48 N. H. 14. The plaintiff is not entitled to a decree re- quiring Mrs. Scott to give him, now or at any time, the prior right to purchase the stock. The contract of March 5, 1888, was unlaw- ful. Northern R. Co. v. Concord R. Co., 50 N. H. 1G6, 179, 180; Fisher v. Railroad Co., Id. 200. 205, 200, 209-211; Woodstock Iron Co. V. Richmond & D. Extension Co., 129 U. S. 643, 9 Sup. Ct 402; West v. Camden, 135 U. S. 507, 520, 521, 10 Sup. Ct 838; Fuller v. Dame, 18 Pick. 472; Guernsey v. Cook, 120 Mass. 501; Woodruff v. Wentworth, 133 Mass, 309; Mor. Priv. Corp. §§ 516-519. The contract of October 8, 1890, in so far as it provides for the survivor's prior right to buy the shares, is not. In Itself, unlawful. Wheth- er it is so connected with the previous contract ' as to be tainted with its illegality is a ques- tion not considered. If it is construed liter- ally, it was broken when Scott died without leaving, by will or otherwise, directions that the plaintiff should have a prior right overany other party to purchase the shares, and the plaintiff's remedy for the breach is by action at law. Assuming that it may properly be construed as an agreement that the survivor should have the prior right to purchase the shares of the legal representatives of the de« ceased party, and that such an agreement is not a testamentary disposition of property (Towle V. Wood, 00 N. H. 434), the plaintiff las already received all that the contract secured to him. An opportunity to buy the shares at the price for which they were final- ly sold was offered to him, and rejected. Bill dismissed. CLARK, J., did not sit The others con- curred. CHARACTER OF ACCEPTANCE. 65 TIIO:\rAS V. GREENWOOD, ct al.i (37 N. W. 195, 69 Mich. 215.) Supreme Court of Michigan. April C, 1SS8. Appeal from circuit court, Bay county; S. M. Green, Judge. Henry II. Tlionias sued George C. Green- wood et al. for damages for breach of con- tract. Judgment for defendants. Plaintiff appeals. All other material facts appear in the opinion. Simonson, Gillett & Courtright, for appel- lant Hatch & Cuuley, for respondents. CIIAMPLIN, J. The defendants were, in ISSG, doing business at Duluth, Minn., under tlie firm name of G. C. Greenwood & Co. The plaintifC on the 9th of Febniary, ISSG, wrote to defendants from Bay City, Mich., as to the puri3ort of which letter we arc not in- formed. Defendants replied February 11, 1886, as foUows: "Duluth, Minn., February 11, 1886. "Mr. H. H. Thomas, No. 9 Munger Blocli, Bay City, Michigan— Dear Sir: We are juist in receipt of yours of the 9th inst., in refer- ence to Hercules powder. Replying, would say that we have the following in stock: GOO IT)S. No. 2, 21^ inch; 2,800 lbs. No. 2, li^, inch; 2,600 lbs. No. 2. S. V^ inch; 1,150 lbs, No. 2, S. S. VA inch; 1,550 lbs. No. 1, X. X. I14 inch. Of this we would lilce to reserve about 1,500 lbs. Our Mr. Mundy, who was talking with you, is not at home, and is bumming around tlie country in the cant-liook business. We quote this powder to you at 10c. per lb. f. 0. b. here, we to reserve about amount stat- ed. We also quote 4 X caps, see inclosed circular, which we are told are the best caps made, at $5.90 per thousand. Fuse, Lake Superior mining, single and double tape, at 20 per cent, off Toy & Biekford & Co.'s or Aetna Powder Co.'s list; terms, cash or ap- proved notes. Should you decide to order these goods, you may give us indorsed note, that we can use the same as cash, dated March 1st four months, without interest. "Hoping to receive your order, we remain, "Yours truly, G. C. Greenwood & Co." — Which said letter was duly received by said plaintiff, and immediately on the re- ceipt of which said plaintiff wrote and mail- ed to said G. C. Greenwood & Co. a letter of which the following is a copy: "Bay City, Mich., February 15, ISSG. "Messrs. G. C. Greenwood & Co., Duluth, Minnesota— Gentlemen: Your letter or st^ite- ment, showing amount of Hercules powder to hand, showing 8,700 lbs. I will take 7,- 200 lbs. of same, leaving you the 1,500 lbs. in reserve, as you wished; so please ship promptly by freight. 1 Irrelevant part of opinion omitted. HOPK. SBL. CAS. COST. — 5 1,900 lbs. No. 2, S. V,i Inch, Hercules. 2,GU0 Hjs. No. 2, S. V/^ inch, Hercules. 1,150 lbs. No. 2, S. S. V/i ihch, Hercules. l,r.,"(j lbs. No. 1, X. X. 11/4 inch, Hercules. $720.00. "Plea.se ship above goods at once, and on receipt of invoice will forward indorsed note, due four mouths from March 1, IS&G. I do not undei-stand what grade No. 4 X. is. I use l\ipper force caps of same brand in my trade here. You are too high on caps and fuse. "Respectfully, II. H. Thomas." These letters plaintiff claims made a bind- ing contract between the parties on its re- ceipt by defendants. They did nut ship the goods as requested, and plaintiff' brings this action to recover his damages based upon the alleged contract. He also added anoth- er count to his declaration, as follo-,v.s:"And also for that whereas, the said defendants heretofore, to-wit, at Bay City, in the county of Bay, OL, to-wit, the 20th day of Januaiy, 1887, were indebted to and jusUy owed siiid plaintiff" the sum of three thousand dollars for damages sustained by him by rea.sou of the failure of said defendants to ship, fiu-- nish, and deliver to plaintiff seven thousand two hundred pounds of Hercules powder, then before bought by plaintiff at Bay City of said defendants at Duluth, in the state of Minnesota." The court below sustained a demurrer to the declaration, and this rul- ing presents the only question for our deci- sion. Do these letters form a valid completed contract between the parties? Counsel for plaintiff concede that, to have this effect, the letter of acceptance must in every respect correspond with the offer, neither falling short nor going beyond the terms proposed; and they insist that it complies with the re- quirements of the law in this regard. Coun- sel for defendants dispute this, and insist that the minds of the parties never met, be- cause— Fii-st. The offer is indehnite, and left two matters open for further consideratioo, namely, the grade, and quantity of each grade, of the 1,500 pounds of powder to be reserved by Greenwood & Co.; also the sutfi- ciency of the note to be accepted in payment of the goods. We think the position of the counsel for defendants is correct. . The right to select the powder reserved is clearly im- plied in the reservation. It applied to one grade no more than another, and the fact the price at which the whole quantity was off'ered being a uniform price of 10 cents a pound, made no difference with the exercise of this right. Presumably it was reserved to fill some other order, or to supply the wants of some other customer, and the selection must be made before a delivery could be en- forced. They did not agree to take any in- dorsed note plaintiff might send. Quality was essential. It was to be such a note as 66 OFFER AND ACCEPTANCE. tliey could nse the same as cash. Who was to pass upon this qualification? Not the one who gave the note, but they who received it. But the plaintiff annexed a new condition. It was this: "On receipt of invoice, will forward indoi'sed note." The letter of Greenwood &. Co. contains no such proposition. They did not say, "If you order tliese goods, we will ship them at once, and forward invoice, on receipt of which you may send us indorsed note due four months from March 1, 1SS6." Nor did the plaintiff say that he would for- ward defendants an indorsed note that they could use the same as cash. Second. The offer is for the sale of the powder, and of the caps and fuse. The offer is, "Should you desire to order these goods." The ac- ceptance is of the powder only. We think this point is weU taken. Caps and fuse can- not be used without powder. Would it he likely that defendants would offer to sell nearly all of their powder without trying to sell also the caps and fusel They made their prices on each class of goods offered, and then said, "Should you decide to order these goods." Had plaintiff considered the price for the powder high, and caps and fuse low, we do not think he could accept or or- der the caps or fuse alone without the fur- ther assent thereto of defendants. Offers of this kind become binding only when the proposition is met with an acceptance which corresponds with it entirely and adequately, without qualification or the addition of new matter. 1 Pars. Cont. (7th Ed.) 476, 477. Wo do not think this has been done in this case. / GENEIIAL OFFERS. G7 CARLILL V. CARBOLIC SMOKE RAXL CO.i ly O. ([1893] 1 Q. B. 256.) (^tV ^ J Court of Appeals. Dec. 7, 1892. ^ Appeal from a decision of Hawkins, J. [1892] 2 Q. B. 484. The defendants, wlio were the proprietors and vendors of a medical preparation called "The Carbolic Smoke Ball," inserted in the Pall Mall Gajcette of November 13, 1891, and in other newspapers, the following adver- tisement: "£100 reward will be paid by the Carlwlic Smoke Ball Ck>mpauy to any person who contracts the increasing epidemic influenza, colds, or anj» disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed di- rections supplied with each ball. £1000 is deposited with the Alliance Bank, Regent Street shewing our sincerity in the matter. "During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease con- tracted by those using the carbolic smoke ball. "One carbolic smoke ball will last a family several months, making it the cheapest rem- edy in the world at the price, 10s., post free. The ball can be refilled at a cost of 5s. Ad- dress, Carbolic Smoke Ball Company, 27 Princes Street, Hanover Square, London.** The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at a chemist's and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by influen- za. Hawkins, J., held that she was entitled to recover the £100. The defendants ap- pealed. Mr. Finlay, Q. C, and T. Terrell, for the defendants. The facts shew that there was no bind- ing contract between the parties. The case is not like Williams v. Carwardine, 4 Barn. & Adol. G21, where the money was to be- come payable on the performance of cer- tain acts by the plaintiff. Here the plain- tiff could not by any act of her own es- tablish a claim, for to establish her right to the money it was necessary that she should be attacked by influenza, — an event over which she had no control. The words ex- press an intention, but do not amount to a promise. Week v. Tibold. 1 Rollc, Abr. G, M. The present case is similar to Harris v. Nickerson, L. R. 8 Q. B. 28G. The adver- tisement is too vague to be the basis of a contract. There is no limit as to time, and no means of checking the use of the ball. Any one who had influenza might come for- ward and depose that he had used the ball 1 Opiuiou of Smith, L. J., omitted. for a fortnight, and it would be impossible to disprove it. Guthing v. Lynn, 2 Bam. & Adol. 232, supix)rts the view that the terms are too vague to make a contract. There being no limit as to time, a person might claim who took the influenza ten years after using the remedy. There is no consideration moving from the plaintiff. Gerhard v. Bates, 2 El. & Bl. 47G. Tile present case differs from Denton v. Railway Co., 5 El. & Bl. 8(W, for there an overt act was done by the plaintiff on the faith of a statement by the defendants. In order to make a contract by fulfilment of a condition, there must either be a communication of intention to accept the offer or there must be the performance of some overt act. The mere doing an act in private will not be enough. This prin- ciple was laid down by Lord Blackburn in Brogdcn v. Railway Co., 2 App. Cas. GG6. The terms of the advertisement would en- able a person who stole the balls to claim the reward, though his using them was no possible benefit to the defendants. At all events, the advertisement should be held to apply only to persons who bought directly from the defendants. But, if there be a con- tract at all, it is a wagering contract, as be- ing one where the liability depends on an event beyond the control of the parties, and which is therefore void under 8 «& 9 Vict. c. 109. Or, if not, it is bad under 14 Geo. HI.c. 48, § 2, as being a policy of insurance on the happening of an uncertain event, and not conforming with the provisions of that sec- tion. Mr. Dickens, Q. C, and W. B. Allen, for plaintiff. [The court intimated that they required no argument as to the question whether the contract was a wager or a policy of insur- ance.] The advertisement clearly was an offer by the defendants. It was published that it might be read and acted on, and they cannot be heard to say that it was an empty boast, which they were under no ob- ligation to fulfil. The offer was duly accept- ed. An advertisement was addressed to all the public. As soon as a person does the act mentioned, there is a contract with him. It is said that there must be a communication of the acceptance; but the language of Lord Blackburn in Brogden v. Railway Co.. 2 App. Cas. GG6, shews that merely doing the acts indicated is an acceptance of the pro- posal. It never was intended that a person proposing to use the smoke ball should go to the office and obtain a repetition of the statements in the advertisement. The de- fendants are endeavoring to inti-oduce words into the advertisement to the effect that the use of the preparation must be with their privity or under their superintendence. ^^^lere an offer is made to all the world, nothing can be imported beyond the fulfil- ment of the conditions. Notice before the event cannot be required. The advertise- 68 OFFER AND ACCEPTxVNCE. ment is an offer made to any person who fulfils the condition, as is explained in Spen- cer V. Harding, L. R. 5 C. P. 5G1. Williams V. Carwardine, 4 Bam. & Adol. G21, shews stronjrly that notice to the person making the offer is not necessary. The promise is to the person who does an act, not to the person who says he is going to do it and then does it. As to notice after the event, it could have no effect, and the present case is within the language of Lord Blackburn in Brogden v. Railway Co., 2 App. Cas. 6GG. It is urged that the tonus are too vague and uncertain to make a contract; but as re- gards parties, there is no more uncertainty than in all other cases of this description. It is said, too, that the promise might apply to a person who stole any one of the balls. But it is clear that only a person who law- fully acquired the preparation could claim the benefit of the advertisement. It is also urged that the terms should be held to ap- ply only to persons who bought directly from the defendants; but that is not the import of the words, and there is no reason for implying such a limitation, an increased sale being a benefit to the defendants, though effected through a middleman, and the use of the balls must be presumed to serve as an advertisement and increase the sale. As to the want of restriction as to time, there are several possible construc- tions of the terms. They may mean that, after you have used it for a fortnight, you will be safe so long as you go on using it, or that you will be safe during the preva- lence of the epidemic. Or the true view may be that a fortnight's use will make a person safe for a reasonable time. Then as to the consideration. In Gerhard v. Bates, 2 El. & BI. 476, Lord Campbell never meant to say that if there was a direct invitation to take shares, and shares were taken on the faith of it, there was no consideration. The de- cision went on the foiTn of the declaration, which did not state that the contract ex- tended to future holders. The decision that there was no consideration was qualified by the words "as between these parties," the plaintiff not having alleged himself to be a member of the class to whom the promise was made. Mr. Finlay, Q. C, in reply. There is no binding contract. The money is payable on a person's taking influenza after having used the ball for a fortnight, and the language would apply just as well to a person who had used it for a fortnight before the advertisement as to a person who used it on the faith of the advertisement. The advertisement is merely an expression of intention to pay £100 to a person who ful- fils two conditions; but it is not a request to do anything, and there is no more con- sideration in using the ball than in contract- ing the influenza. That a contract should be completed by a private act is against the language of Lord Blackburn In Brogden v. Metropolitan Ry. Co., 2 App. Cas. 692. The use of the ball at home stands on the same level as the writing a letter which is kept in the writer's drawer. In Denton v. Rail- way Co., 5 El. & Bl. S6, the fact was ascer- tained by a public, not a secret, act. The respondent relies on Williams v. Carwardine, 4 Barn. & Adol. 021, and the other cases of that class; but there a service was done to the advertiser. Here no service to the de- fendants was requested, for it was no bene- fit to them that the balls should be used; their interest was only that they should be sold. Those cases also differ from the pres- ent in this important particular: that in them the service was one whic^ could only be performed by a limited number of per- sons, so there was no difliculty in ascertain- ing with whom the contract was made. It is said the advertisement was not a legal contract, but a promise in honor, which, if the defendants had been approached in a proper way, they would have fulfilled. A re- quest is as necessai"y in the case of an exe- cuted consideration as of an executory one (Lampleigh v. Braithwait, 1 Smith, Lead. Cas. [9th Ed.] pp. 153, 157, 159), and here there was no request. Then as to the want of limitation as to time, it is conceded that the defendants cannot have meant to con- tract without some limit, and three limita- tions have been suggested. The limitation "during the prevalence of the epidemic" is inadmissible, for the advertisement applies to colds as well as infiuenza. The limita- tion "during use" is excluded by the lan- guage "after having used." The third is, "within a reasonable time," and that is prob- ably what was intended; but it cannot be deduced from the words; so the fair result is that there was no legal contract at all. LIXDLEY, L. J. (after stating the facts). I will begin by referring to two points which were raised in the court below. I refer to them simply for the purpose of dismissing them. First, it is said no action will lie upon this contract because it is a policy. You have only to look at the advertisement to dismiss that suggestion. Then it was said that it is a bet. Hawkins, J., came to the conclusion that nobody ever dreamt of a bet, and that the transaction had nothing whatever in common with a bet I so entirely agree with him that I pass over this contention also as not worth serious attention. Then, what is left? The first (jbservation I will make is that we are not dealing with any inference of fact. We are dealing with an express promise to pay £100 in certain events. Read the advertisement how you will, and twist 't about as you will, here is a distinct promise expressed in language which is perfectly unmistakable: "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily GENERAL OPFERS. 69 for two weeks according to the printed direc- tions supplied withi eacli ball." We must first consider whether this was intended to be a promise at all, or whether it was a mere pu£f which meant nothing. Was it a mere puffV My answer to that question is "No," and I base my answer upon tliis passage: "£1000 is deposited with the Al- liance Bank, shewing our sincerity in the matter." Now, for what was that money de- posited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all-? The deposit is called in aid by the advertiser as a proof of his sincerity in the matter— that is, the sin- cerity of his promise to pay this £100 in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it. Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular. Now that point is comuion to the words of this advertisement and to the words of all other advertisements offering rewards. They are offers to anybody who performs the conditions named in the ad- vertisement, and anybody who does perform the condition accepts the offer. In point of law this advertisement is an offer to pay £100 to anybody who will perform these con- ditions, and the performance of the condi- tions, is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is Williams v. Carwardine, 4 Barn. & Adol. G21, which has been followed by many other decisions upon advertisements of- fering rewards. But then it is said, "Supposing that the performance of the conditions is an accept- ance of the offer, that acceptance ought to have been notified." Unquestionably, as a general proposition, when an offer Is made, it is necessary in order to make a binding con- tract, not only that it should be accepted, but that the acceptance should be notified. But is that so in cases of this kind? I apprehend that they are an exception to that rule, or, if not an exception, they are open to the ob- servation that the notification of the accept- ance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required,— which I doubt very much, for I rather think the true view is that which was expressed and explained by Lord Blackburn in the case of Brogden v. Railway Co., 2 App. Cas. GGG, G91,— if notice of acceptance is re- quired, the person who makes the offer gets the notice ot acceptance contemporaneously with his notice of the performance of the con- dition. If he gets notice of the acceptance before his offer is revoked, that in principle is all you want I, however, think that the true view, in a case of this kind, is that the person who makes the offer shews by his lan- guage and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance. We, therefore, find here all the elements which are uoces.sary to form a binding con- tract enforceable in point of law, subject to two observations First of all it is said that this advertisement is so vague that you can not really construe it as a promise — that the vagueness cf the language shows that a legal promise was never intended or contemplated. The language is vague and uncertain in some respects, and particularly in this, that the £100 is to be paid to any person who contracts the increasing epidemic after having used tlie balls three times daily for two weeks. It is said, when are they to be used? According to the language of the advertisement no time is fixed, and, construing the offer most strong- ly against the person who has made it, one might infer that any time was meant. I do not think that was meant, and to hold the contrary would be pushing too far the doc- trine of taking language most strongly against the person using it. I do not think that busi- ness people or reasonable people would under- stand the words as meaning that if you took a smoke ball and used it three times daily for two weeks you were to be guaranteed against influenza for the rest of your life, and I think it would be pushing the language of the ad- vertisement too far to construe it as meaning that. But if it does not mean that, what does it mean? It is for the defendants to shew what it does mean; and it strikes me that there are two, and possibly three, reasonable constructions to be put on this advertisement, any one of which will answer the purpose of the plaintiff. Possibly it may be limited to persons catching the "increasing epidemic" (that is, the then prevailing epidemic), or any colds or diseases caused by taking cold, dur- ing the prevalence of the increasing epidemic. That is one suggestion; but It does not com- mend itself to me. Another suggested mean- ing is that you are warranted free from catch- ing this epidemic, or colds or other diseases caused by taking cold, whilst you are using this remedy after using it for two weeks. If that is the meaning, the plaintiff is riglit. for she used the remedy for two weeks and went on using it till she got the epidemic. An- other meaning, and the one which I rather prefer, is that the reward is offered to any person who contracts the epidemic or other disease within a reasonable time after hav- ing used the smoke ball. Then it is asked, what is a reasonable time? It has been sug- gested that there is no standard of reasonable- ness; that it depends upon the reasonable time for a germ to develop! I do not feel pressed by that. It strikes me that a reason- able time may be ascertained in a business sense and in a sense satisfactory to a law- yer, in this way: Find out from a chemist what the ingredients are; find out from a skilled physiciau how long the effect of such ingredients on the system could be reasonaldy expected to endure so as to protect a person 70 OFFER AND ACCEPTANCE. from an epidemic or cold,— and in that way you will get a standard to be laid before a jury, or a judge without a jury, by which they might exercise their judgment as to what a reasonable time would be. It strikes me, I confess, that the true construction of this advertiserient is that flOO will be paid to anybody who uses this smoke ball three times daily for two weeks according to the printed directions, and who gets the influenza or cold or other diseases caused by taking cold within a reasonable time after so using it; and if that is the true construction, it is enough for the plaintiff. I come now to the last point which I think requires attention: that is, the consideration. It has been argued that this is nudum pactum — that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage to the defendants. It is said that the use of the ball is no advantage to them, and that what benefits them is the sale; and the case is put that a lot of these balls might be stolen, and that it would be no advantage to the defend- ants if the thief or other people used them. The answer to that, I think, is as follows: It is quite obvious that in view of the adver- tisers a use by the public of their remedy, if they can only get the public to have confi- dence enough to use it, will react and pro- duce a sale which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to con- stitute a consideration. But there is another view. Does not the person who acts upon this advertisement and accepts the offer put himself to some in- convenience at the request of the defend- ants? Is It nothing to use this ball three times daily for two weeks according to the directions at the request of the advertiser? Is that to go for nothing? It appears to me that there is a distinct inconvenience, not to say a detriment, to any person who so uses the smoke baU. I am of opinion, there- fore, that there is ample considei-ation for the promise. We were pressed upon this point with the ease of Gerhard v. Bates, 2 El. & Bl. 476, which was the case of a promoter of com- panies who had promised the bearers of share warrants that they should have divi- dends for so many years, and the promise as alleged was held not to shew any consid- eration. Lord Campbell's judgment when you come to examine it is open to the ex- planation, that the real point in that case was that the promise, if any, was to the original bearer and not to the plaintiff, and that as the plaintiff was not suing in the name of the original bearer there was no contract with him Then Lord Campbell goes on to enforce that view by shewing that there was no consideration shewn for the promise to him. I cannot help thinking that Lord Campbell's observations would have been very different if the plaintiff in that action had been an original bearer, or if the declaration had gone on to shew what a societe anonyme was, and had alleged the promise to have been, not only to the first bearer, but to ajiybody who should become the bearer. There was no such allegation, and the court said, in the absence of such allegation, they did not know (judicially, of course) what a societe anonyme was, and, therefore, there was no consideration. But in the present case, for the reasons I have given, I cannot see the slightest difficulty in coming to the. conclusion that there is con- sideration. It appears to me, therefore, that the de- fendants must perform their promise, and, if they have been so unwaiy as to expose themselves to a great many actions, so much the worse for them. BOWEN, L. J, [ am of the same opinion. We are asked to say that this document was a contract too vague to be enforced. The first observation which arises is that the document itself is not a contract at aU: it is only an offer made to the public. The defendants contend next, that it is an offer the terms of which are too vague to be treat- ed as a definite offer, inasmuch as there is no limit of time fixed for the catching of the influenza, and it cannot be supposed that the advertisers seriously meant to promise to pay money to every person who catches the influenza at any time after the inhaling of the smoke ball. It was urged also, that if you look at this document you will find much vagueness as to the persons with whom the contract was intended to be made; that, in the first place, its terms are wide enough to include persons who may have used the smoke ball before the adver- tisement was issued; at all events, that it is an offer to the world in general, and, also, that it is unreasonable to suppose it to be a definite offer, because nobody in their senses would contract themselves out of the oppor- timity of checking the experiment which was going to be made at their own expense. It is also contended that the advertisement is rather in the nature of a puff" or a procla- mation than a promise or offer intended to mature into a contract when accepted. But the main point seems to be that the vague- ness of the document shews that no con- tract whatever was intended. It seems to me that, in order to arrive at a right con- clusion, we must read this advertisement in its plain meaning, as the public would im- derstand it. It was intended to be issued to the public and to be read by the public. How would an ordinary person reading this document construe it? It was intended un- questionably to have some effect, and 1 think the effect which it was intended to have, was to make people use the smoke ball, because the suggestions and allegations which it contains are directed immediately to the use of the smoke ball as distinct from GENERAL OFFEHS. 71 the purchase of it. It did not follow that the smoke ball was to be purchased from the defendants directly or even from aj;ents of theirs directly. The intention was that the circulation of the sinoko ball should he pro- moted, and that the use of it should be in- creased. The advertisement begins by say- ing that a reward will be paid by the Carbol- ic Smoke Ball Company to any person who contracts the increasing epidemic after us- ing the ball. It has been said that the words do not apply only to persons who con- tract the epidemic after the publication of the advertisement, but include persons who had previously contracted the influenza. I cjinnot so read the advertisement. It is written in colloquial and popular language, and I think that it is equivalent to this: "£100 will be paid to any person who shall contract the increa.sing epidemic after hav- ing used the carbolic smoke ball three times daily for two weeks." And it seems to me that the way in which the public would read it would be this; that if anybody, after the advertisement was published, used three times daily for two weeks the carbolic smoke biill, and then caught cold, he would be entitled to the reward. Then again it ■was said: "flow long is this protection to endure? Is it to go on for ever, or for what limit of time?" I think that there are two constructions of this document, each of which is good sense, and each of which seems to me to satisfy the exigencies of the present action. It may mean that the pro- tection Is warranted to last during the epi- demic, and it was during the epidemic that the plaintiff contracted the disease. I think, more probably, it means that the smoke ball will be a protection while it is in use. That seems to me the way in which an ordinary person would understand an advertisement about medicine, and about a specific against mfluenza. It coidd not be supposed that after you have left off using it you are still to be protected for ever, as if there was to be a stamp set upon your forehead that you were never to catch influenza because you had once used the carbolic smoke ball. I think the immunity is to last during the use of the ball. That is the way in which I should naturally read it, and it seems to me that the subsequent language of the adver- tisement supports that construction. It says: "During the last epidemic of influenza many thou.sand carbolic smoke balls were sold, and in no ascertained case was the disease contracted by those using" (not, "who had used") "the carbolic smoke ball," and it concludes with saying that one smoke ball will last a family several months (which imports that it is to be efficacious while it Is being used), and that the ball can be re- filled at a cost of 5s. I, therefore, have myself no hesitation in saying that I think, on the construction of this advertisement, the protection was to enure during the time that the carbolic smoke ball was used. My brother the lord Justice who preceded me, thinks that the contract would be sufficient- ly definite if you were to read It in the sense that the protection was to be war- ranted during a reasonable period after use. I have some difliculty myself on that point; but it is not neces.sary for me to consider it further, because the disease here was con- tracted during the use of the carbolic smoke ball. Was it intended that the £100 should, if the conditions were fulfilled, be paid? The advertisement says £1000 is lodged at the bank for the purpose. Therefore, it cannot be said that the statement that £100 would be paid was intended to be a mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon. But it was said there was no check on the part of the persons who issued the adver- tisement, and that it would be an insensate thmg to promise £100 to a person who used the smoke ball unless you could check or superintend his manner of using it. The an- swer to that argument seems to me to be that if a person chooses to make extravagant prom- ises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them. It was also said that the contract is made with all tlie w-orld,— that is, with everybody, —and that you cannot contract with every- body. It is not a contract made with all the world. There is the fallacy of the argu- ment. It is an offer made to aU the world; and why should not an offer be made to all the w'orld which is to ripen into a contract with anj'body who comes forward and per- forms the condition? It is an offer to be- come liable to any one who, before it is re- tracted, performs the condition, and, although the offer is made to the world, the contract is made with that Umited portion of the pubhc who come forward and perform the condition on the faith of the advertisement. It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate, offers to receive offers, offers to chaffer, as, I think, some learned judge in one of the cases has said. ' If tliis is an offer to be bound, then it is a contract the moment the person fulfils the condition. That seems to me to be sense, and it is also the ground on which all these advertisement cases have been decided during tlie century; and it can- not be put better than in Willes. J.'s. judg- ment in Spencer v. Harding, L. R. 5 C. P. oGl, 563. "In the advertisement cases," he says, "there never was any doubt that the adver- tisement amounted to a promise to pay the money to the person who first gave informa- tion. The diflEiculty suggested was that it was a contract with all the world. But that. 72 OFFER AJ^D ACCEPTANCE. of course, was soon overruled. It was an offer to become liable to any person who before the ofEer should be reti-acted should happen to be tlie ix?rson to fulfil the con- tract, of which the advertisement was an offer or tender. That is not the sort of dif- ficulty which presents itself here. If the circular had gone on, 'and we undertake to sell to the highest bidder,' the reward cases would have applied, and there would have been a good contract in respect of the per- sons." As soon as the highest bidder pre- sented himself, says Willes, J., the person who was to hold the vincvilum juris on the other side of the contract was ascertained, and it became settled. Then it was said that there was no notifica- tion of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come to- gether. Unless this is done, the two minds may be apart, and there is not that consensus which is necessary according to the English law — I say nothing about the laws of other countries — to make a contract But there is this clear gloss to be made upon that doc- trine, that as notification of acceptance is re- quired for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of ac- ceptance as sufiicient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of ac-ceptance; and if the person making the offer, expressly or im- pliedly intimates in his offer that it will be sufficient to act on the proposal without com- municating acceptance of it to himself, per- formance of the condition is a sufficient ac- ceptance without notification. That seems to me to be the principle which lies at the bottom of the acceptance cases, of which two instances are the well-known judgment of Mellish, L. J., in Harris's Case, L. R. 7 Ch. 587, and the very instructive judgment of Lord Blackburn in Brogden v. Railway Co., 2 App. Cas. GGC, 601, in which he appears to me to take exactly the line I have indicated. Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the adver- tisement cases it seems to me to follow as an inference to be drawn from the transac- tion itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condi- tion notification is dispensed with. It seems to me that from the point of view of common sense no other idea could be entertained. K I advertise to the world that my dog is lost, and that anybody who brings the dog to a par- ticular place wUl be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write a note saying that they have ac- cepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the con- tract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the con- dition is sufficient acceptance without the no- tification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. He does, there- fore, in his offer impliedly indicate that he does not require notification of the accept- ance of the offer. A further argument for the defendants was that this was a nudum pactum,— that there was no consideration for the promise; tlmt taking the infiuenza was only a condition, and that the using the smoke ball was only a condition, and that there was no considera- tion at all; in- fact, that there was no request, express or implied, to use the smoke ball. Now, I will not enter into an elaborate dis- cussion upon the law as to requests in this kind of contracts I will simply refer to Victors V. Davies, 12 Mees. & W. 758, and Serjeant Manning's note to Fisher v. Pyne, 1 Man. & G. 265, which everybody ought to read who wishes to embark in this contro- versy. The short answer, to abstain from academical discussion, is, it seems to me, that there is here a request to use involved in the offer. Then as to alleged want of considera- tion. The definition of "consideration" given in Selwyn, N. P. (8th Ed.) p. 47, which is cited and adopted by Tindal, C. J., in the case Laythoarp v. Bryant, 3 Scott, 238, 250, is this: "Any act of the plaintiff from which the de- fendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustain- ed by the plaintiff, provided such act is per- formed or such inconvenience suffered by the plaintiff, with the consent, either expressed or implied, of the defendant." Can it be said here that if the person who reads this advertisement applies thrice daily, for such time as may seem to him tolerable, the car- bolic smoke ball to his nostrils for a whole fortnight, he is doing nothing at all; that it Is a mere act which is not to count towards consideration to support a promise (for the law does not require us to measure the ad- equacy of the consideration). Inconvenience sustained" by one party at the request of the other is enough to create a consideration. I GENERAL OFFERS. 73 think, therefore, that It Is consideration enough that the plaintiff took the trouble of using the smoke ball. But I think also that the defendant received a benefit from this u.ser, for the use of the smoke ball was 'con- templated by the defendants as being indirect- ly a benefit to them, because the use of the smoke balls would promote their sale. Then we are pressed with Gerhard v. Bates, 2 El. & Bl. 476. In Gerhard v. Bates, 2 EL & Bl. 47G, which ar'^se upon demurrer, the point upon which the action failed was that the plaintiff did not allege tliat the promLse was made to the class of which alone the plaintiff was a member, and that therefore there was no privity between the plaintiffs and the defendants. Then Lord Campbell went on to give a second reason. If his first reason was not enough, and the plaintiff and the defendant there had come together as contracting parties and the only question was consideration. It seems to me Lord Campbell's reasoning would not have been sound. It is only to be supported by reading it as an addi- tional reason for thinking that they had not come into the relation of contracting parties; but, if so, the language was superfluous. The truth is, that if in that case you had found a contract between the parties there would have been no diflicultj' about consideration; but you could not find such a contract Here, in the same way, if you once make up your mind that there was a promise made to thi.s lady who is the plaintiff, as one of the pubhc,— a promise made to her that if she used the smoke ball three times daily for a fortnight and got the influenza, she should have flCXJ, — It seems to me that her using the smoke ball was sufficient consideration. I cannot pic- ture to myself the view of the law on which the contrary could be held when you liave once found who are the contracting parties. If I say to a person, "If you use such and such a medicine for a week I will give you £5," and he uses it, there Is ample considera- tion for the promise. • *«••• Appeal dismissed. OrrEll AND ACCEPTANCE. ^^ \. 20. III. V PAINE V. CAVE. (3 Term R. 148. Hilaiy Term, 29 Geo. This was an action, tried at the sittings after last term at Gtiildhall before Loi-d Keu- yon, whei-ein the declaration stated that the plaintiff on 22d September, 178S, was pos- sessed of a certain worm-tub, and a pewter worm in the same, which were then and there about to be sold by public auction by one S. M., the agent of the plaintifE in that behalf, the conditions of which sale were to be the usual conditions of sale of goods sold by auction, &c. of all which premises the defendant afterwards, to wit, &c. had no- tice; and thereupon the defendant in consid- eration that the plaintiff, at the special in- stantii and i-equest of the defendant, did then and there undertake, and promise to perform the conditions of the said sale, to be per- formed by the plaintiff, as seller, &c. under- took, and then and there promised the plain- tiff to perform the conditions of the sale, to be perfoi-med on the part of the buyer, &c. And the plaintiff avei-s, that the conditions of sale, herein after mentioned, are usual conditions of sale of goods sold by auction, to wit, that the highest bidder should be the purchaser, and should deposit five shillings in the pound, and that if the lot purchased were not paid for and taken away in two days time, it should be put up again and re- sold, &c. [stating all the conditions]. It then stated that the defendant became the pur- chaser of the lot in question for £40. and was requested to pay the usual deposit which he refused, &c At the trial, the plaintiff's counsel opened the case thus;— The goods were put up in one lot at an auction; there were several biddei-s, of whom the defend- ant was the last who bid £40; the auction- eer dwelt on the bidding, on which the de- fendant said "why do you dweU, you will not get more;" the auctionerr said that he was informed the worm weighed at least 1300 cwt, and was worth more than £40; the de- fendant then asked him whether he would warrant it to weigh so much, and received an answer in the negative, he then declared that he would not take it, and refused to pay for it. It was re-sold on a subsequent day's sale 'for £30 to the defendant, against whom the action was brought for the difference. Lord Kenyon, being of opinion on this state- ment of the case, that the defendant was at liberty to withdraw his bidding any time be- fore the hammer was knocked down, non- suited the plaintiff. Walton now moved to set aside the non- suit, on the ground that the bidder was bound by the conditions of the sale to abide by his bidding, and could not retract By the act of bidding he acceded to those con- ditions, one of which was, that the highest bidder should be the buyer. The hammer is suspended, not for the benefit of the bid- der, or to give him an opportunity of repent- ing, but for the benefit of the seller: in the mean time the pereon who bid last is a con- ditional pui-chaser, if nobody bids more. Oth- erwise it is in the power of any person to injure the vendor, because all the former biddings are discharged by the last: and, as it happened in this very instance, the goods may thereby ultimately be sold for less than the person who was last out-bid would have given for them. The case of Simon v. Metiv- ier, 3 Burrows, 1921, which was mentioned at the trial, does not apply. That tiimed on the statute of frauds. THE COURT thought the non-suit very proper. The auctioneer is the agent of the vendor, and the assent of both parties is necessaiy to make the contract binding; that is signified on the part of the seUer, by knodiing down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus poen- itentiae. Every bidding is nothing more than an offer on one side, which is not binding on either side tUl it is assented to. But accord- ing to what is now contended for, one party would be bound by the offer, and the other not, which can never be allowed. Rule refused. REVOCATION OF OFFER OR ACCEPTANCE. 75 BARTLETT et ^4 BOSTON & M. R. R. V (3 Gush. 224.) Supreme Judicial Court of Massachuset Suffolk. Nantucket. March \^ Term. 1849. This was a bill in equity for the specific performunce of a contract In writing. ; The plaiatilTs allogcfl, that the defendants, on the 1st of April, 1844, being the owners of certain laud situated In Boston, and par- ticularly described in the bill, "in considera- tion that said corporation would take into consideration the expediency of buying said laud for their use as a corporation, signed a certain writing, dated April 1st, 1844," whereby they agreed to convey to the plain- tiffs "the said lot of land, for the sum ot twenty thousand dollars, if the said corpo- ration would take the same within thirty days from that date;" that afterwards and within the thirty days, the defendants, at the request of the plaintiffs, "and in consid- eration that the said corporation agreed to keep in consideration the expediency of tak- ing said land," etc, extended the said term of thirtj- days, by a writing underneath the written conti"act above mentioned, for thirty days from the expiration thereof; that, on the 29th of May, 1844, while the extended contract was in full force, and unrescinded, the plaintiffs elected to take the land on the terms specified in the contract, and notified the defendants of their election, and offered lo pay them the agreed price (producing the same in money) for a conveyance of the land, and requested the defendants to ex- ecute a conveyance thereof, which the plain- tiffs tendered to them for that purpose; and that the defendants refused to execute such conveyance, or to perform the contract, and had ever since neglected and refused to per- form the same. The defendants demurred generally. J. P. Healy, for defendants, contended, that there was no allegation in the bill of a consideration for the contract, as originally made, or as extended; and, consequently, that the same was not enforceable either at law or in equity. Howel v. George, 1 Madd. 1; 2 Story, Eq. § 787; Brownsmith v. Gil- borne, 2 Strange, 738; Colraan v. Sarel, 2 Brown, Ch. 12; 1 Madd. 328; 1 Fonbl. 42. The counsel also referred to 1 Harr. Dig. G03; Burnet v. Bisco, 4 Johns. 235; Tucker v. Woods, 12 Johns. 190; Bean v. Burbank, 16 Me. 458. G. Minot, (with whom was R. Choate.) for the plaintiffs, suggested, that if the demur- rer was sustained, it would uot be for the reason stated, but on the authority of Cooke V. Oxley, 3 Term R. G53, and Tucker v. Woods, 12 Johns. 190, which are not now law. The question is one of mutuality rath- er than of consideration. The offer of the defendants was a continuing one. which might have been withdrawn at any time; but, when accepted, the effect was the same, as If the offer had only been made the mo- ment before. Such an offer requires no con- sidoi-ation. When accepted, there is prom- ise for promise. The case of Cooke v. Oxley Is overruled by Adams v. Lindsell, 1 Bam. & Aid. 081; Maetier v. Frith, G Wend. 103; Peru v. Turner, 10 Me. 185; Kennedy v. Lee, 3 Mer. 441; Averill v. Hedge, 12 Conn. 424; Carr v. Duval, 14 Pet. 77; 1 Sugd. Vend. 104; M'Cul- loch V. Insurance Co., 1 Pick. 278. It is vir- tually overruled by the following cases de- cided by this court: Thayer v. Insurance Co., 10 Pick. 320; Foster v. Boston. 22 Pick. 33; Bird v. Richardson, 8 Pick. 252. See, also, the remarks in 20 Am. Jur. 17, on the case of Cooke v. Oxley, and the case of Hamilton v. Insurance Co., 5 Pa. St. 339. in which it was virtually overruled. Mr. Healy, in reply, said that In all the cases cited for the plaintiffs, except the last, there was a consideration. FLETCHER, J. In support of the de- murrer, in this case, the only groimd as- sumed and insisted on by the defendants is, that the agreement on their part was with- out consideration, and therefore not obliga- tory. In the view taken of the case by the court, no importance is attached to the con- sideration set out in the bill, namely, "that the plaintiffs would take into consideration the expediency of buying the land." The argument for the defendants, that their agreement was not binding, because without consideration, erroneously assumes that the writing executed by the defendants is to be considered as constituting a contract at the time it was made. The decision of the court in Maine in the case of Bean v. Bur- bank, 16 Me. 458, which was referred to for the defendants, seems to rest on the ground assumed by thom in this case. In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time lim- ited for acceptance; and, during the whole \ of that time, it was an offer every instant, but as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract. The coimsel for the defendants Is most surely in the right, in saying that the writing when made was without consid- eration, and did not therefore form a con- tract It was then but an offer to contract; and the parties making the offer most un- doubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which consti- tutes and is the definition of a contract. The acceptance by the plaintiffs constituted a s ufhoieut legal consideration for the eng;ag e- ment on the part of the di-fou'hints. There 76 OFFER AND ACCEPTANCE. was then nothing wanting, in order to per- fect a valid contract on the part of the de- fendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been mad e and accepted and the bargain completed at once. A different doctrine, however, prevails In France, and Scotland, and Holland. It is there held, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide, whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respecta- ble authors regard it as inconsistent with .Uie plain principles of equity, that a person, who has been induced to rely on such an engagement, should have no remedy in case of disappointment But, whether wisely and equitably or not, the common law im- yieldingly insists upon a consideration, or a paper with a seal attached. The authorities, both English and Ameri- can, in support of this view of the subject, are very numerous and decisive; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text books. The case of Cooke v. Oxley, '6 Term R. 6-53, in which a different doctrine was held has occasioned consider- able discussion, and, in one or two instances, has probably influenced the decision. That case has been supposed to be Jnaccura tely reporte d ;_and thaj in fa cLJilsrejgag^in that 'gtrggTlg'acc eptaa ce! ButThowever that may '^eTTT^'n^'case has not been directly over- ruled, it has certainly in later cases been entirely disregarde d, and cannot now be considered as of any authority. As, therefore, in the present case, the bill sets out a proposal in writing, and an ac- ceptance and an offer to perform, on the part of the plaintiffs, within the time lim- ited, and while the offer was in fuU force, all which is admitted by the demurrer, so that a valid contract in writing is shown to exist, the demurrer must be overruled. REVOCATION OF OFFER Oil ACCEPTANCE. 77 DICKINSON V. DODDS. (2 Ch. Div. 463.) Chancery Division, Court of Appeal. 187G. April 1, On Wednesday, the 10th of June, 1874, the defendant John Dodds signed and delivered to tlie phiintiir, (Jeorgo Dicliinsou, a mem- orandum, of which the material part was as follows: "I hereby agree to sell to Mr. George Dick- inson the whole of the dwelling-houses, gar- den ground, stabling, and outbuildings there- to belonging, situate at Croft, belonging to me, for the sum of £800. As witness my hand this tenth day of June, 1874. "fSOO. [Signed] John Dodds." "P. S.— This offer to be left over until Fri- day, 9 o'clock a. m. J. D. (the twelfth), 12th June, 1874, "[Signed] J. Dodds." The bill alleged that Dodds understood and intended that the plaintiff should have until Friday, 9 a. m., within which to determine whether he would or would not purchase, and that he should absolutely have until that time the refusal of the property at the price of fSOO, and that the plaintiff in fact de- termined to accept the offer on the morning of Thursday, the 11th of June, but did not at once signify his acceptance to Dodds, be- lieving that he had the power to accept it un- til 9 a. m. on the Friday. In the afternoon of the Thursday the plain- tiff was informed by a Mr. Berry that Dodds had been offering or agreeing to sell the prop- erty to Thomas Allan, the other defendant. ! Tiiereupon the phiintiff, at about half past ' seven in the evening, went to the house of Mrs. Burgess, the mother-in-law of Dodds, where he was then staying, and left with her a formal acceptance in writing of the offer to sell the property. According to the evi- dence of Mrs. Burgess this document never in fact reached Dodds, she having forgotten to give it to him. On the following (Friday) morning, at about seven o'clock. Ben-y, who was acting as agent for Dickinson, found Dodds at the Dar- lington railway station, and handed to him a duplicate of the acceptance by Dickinson, and explained to Dodds its puri)ort. lie re- plied that it was too late, as he had sold the property. A few minutes later Dickinson himself found Dodds entering a railway car- riage, and handed him another duplicate of the notice of acceptance, but Dodds declined to receive it, saying: "You are too late. I have sold the property." It appeared that on the day before, Thurs- day, the 11th of June, Dodds had signed a formal contract for the sale of the property to the defendant Allan for fSOO, and had re- ceived from him a deposit of £40. The bill in this suit prayed that the de- fendant Dodds might be decreed specifically to perform the contract of the 10th of June. 1874; that he miglit be restrained from con- veying the prop<.'i-ty to Allan; that Allan might be restrained from taking any such conveyance; that, if any such conveyance had been or should be made, Allan might be declared a trustee of the property for. and might be directed to convey the property to, the plaintiff; and for damages. The cause came on for hearing before Vice Chancellor BACON on the 25th of January 1870. Mr. Kay, Q. C, and Mr. Caldecott, for pUiin- tiff. The memorandum of the 10th of June, 1874, being in writing, satisfies the statute of frauds. Though signed by the vendor only, it is effectual as an agreement to sell the property. Supposing it to have been an offer only, an offer, if accepted before it is withdrawn, be- comes, upon acceptance, a binding agreement. Even if signed by the person only who is sought to be charged, a proposal, if accepted by the other party, is within the statute. Reuss V. Picksley, L. R. 1 Exch. 342, follow- ing Warner v. Willington, 3 Drew, 523. In Kennedy v. Lee, 3 Mer. 441, 4.54, Lord Eldon states the law to be that: "If a per- son communicates his acceptance of an offer within a reasonable time after the offer being made, and if, within a reasonable time of the acceptance being communicated, no variation has been made by either party in the terms of tlie offer so made and accepted, the ac- ceptance must be taken as simultaneous with the offer, and both together as constituting such an agreement as tue court wiU execute." So that, not only is a parol acceptance sutfi- cient, but such an acceptance relates back to the date of the offer. This is further shewn by Adams v. Lindsell, 1 Barn. & Aid. GSl, where an offer of sale was made by letter to the plaintiffs "on receiving their answer in course of post." The letter was misdirected, and did not reach the plaintiffs imtil two days after it ought to have reached them. Tlie plaintiffs, immediately on receiving the letter, wrote an answer accepting; and it was held that they were entitled to the bene- fit of the contract. The ruling in Adams v. Lindsell, 1 Barn. & Aid. GSl, was appi-oved by the house of lords in Dunlop v. Iliggins, 1 H. L. Cas. 3S1. as appears from the judgment of Sir G. Mellish, L. J., in Han-is' Case, L. R. 7 Ch. 587, 595; and it is now settled that a contract which can be accepted by letter is complete when a letter containing such accept;! nee has been posted. The leaving by the plaintiff of the notice at Dodds' residence was equivalent to the delivery of a letter by a postman. That Allan is a necessary party appears from Potter v. Sanders, G Hare, 1; and if Allan has had a conveyance of the legal es- tate, the court will decree specific perform- ance against him. OrrEli AND ACCEPTANCE. Mr. Swanston, Q. C, aud Mr. Crosslcy, for defendant Dodds. The bill puts the case no higher than that of an offer. Taking the memorandum of the 10th of June, 1S74. as an offer only, it is well established that, until acceptance, either par- ty may retract. Cooke v. Oxley, 3 Term R. 653; Beuj. Sales (2d Ed.) p. 52. After Dodds had retracted by selling to Al- lan, the offer was no longer open. Having an option to retract, he exercised that option. Humphries v. Carvalho, 16 East, 45; Pol. Cout. p. S; Routledge v. Grant, 4 Bing. G53, In delivering judgment in Martin v. Mitch- ell. 2 Jac. & W. 413, Sir T. Plumer, M. R., put the case of a contract signed by one party only. He asked (page 42S), "What mutuality is there, if the one is at liberty to renounce the contract, and the other not?" And in Meyuell v. Surtees. 1 Jur. (N. S.) 737, the dis- tinctions between an offer and an agreement in respect of binding land were pointed out. Fry, Spec. Perf. p. 80. The postserip^^ being merely voluntary, with- out consideration, is nudum pactum; and the memorandum may be read a^ if it contained no postscript. Mr. .Jackson, Q. C, and Mr. Gazdar, for de- fendant Allan. Allan is an unnecessary party. If Dodds has not made a valid contract with the plain- tiff, he is a trustee for Allan; if Dodds has made a binding contract, rights arise be- tween Allan and Dodds which are not now in controversy. We agree with the co-defendant that, in order that the plaintiff may have a locus standi, there must have been a contract. If the postscript is a modification of the offer, it is nudum pactum, and may be rejected. It may be conceded that if there had been an acceptance, it would have related back in point of date to the offer. But there was no acceptance. Notice of acceptance sem^ed on Mrs. Burgess was not enough. Even if it would have been otherwise suf- ficient, here it was too late. Dodds had no property left to contract for. The property had ceased to be his. He had retracted his offer; and the property had become vested iu some one else. Hebb's Case, L. R. 4 Eq. 9, 12. The plaintiff would not have delivered the no'tice if he had not heard of the negotiation between Dodds and Allan. What retracta- tion could be more effectual than a sale of the property to some one else? The defendant Allan was a bona fide pur- chaser without notice. Mr. Kay, in reply. The true meaning of the document was a sale. The expression is not "open," but "over." The only liberty to be allowed by that was a liberty for the plaintiff to reti'act. But, taking it as an offer, the meaning was that at any day or hour within the intoiTal named the plaintiff had a right to indicate to the defendant his acceptance, and from that moment the defendant would have had no i'ight of retractation. Then was there a re- tractation before acceptance? To be a retrac- tation, there must be a notification to the oth- er party. A pure resolve within the recesses of the vendor's own mind is not sufficient. There was no communication to the plaintiff'. He accepted on two several occasions. There could have been no parting with the property without conmaunciation with him. He was told that the offer was to be left over. The groimds of the decision in Cooke v. Oxley, 3 Term R. 653, have been abimdantly explained by ^Ir. Benjamin in his work on Sales. It was decided simply on a point of pleading. BACON, V. C, after remarking that the case involved no question of unfairness or inequality, and after stating the terms of the document of the 10th of Jime, 1874, and the statement of the defendant's case as given in his answer, continued: I consider that to be one agreement, and 1 think the terms of the agreement put an end to any question of nudum pactum. I think the inducement for the plaintiff to enter into the conti-act was the defendant's compliance with the plaintiffs request that there should be some time allowed to him to determine whether he would accept it or not. But whether the letter is read with or without the postscript, it is, in my judgment, as plain and clear a contract for sale as can be expressed in words, one of the terms of that contract being that the plaintiff shall not be called upon to accept or to testify his acceptance, matil 9 o'clock on the morning of the 12th of June. I see, therefore, no reason why the court should not euforc-e the specific perform- ance of the contract, if it finds that all the conditions have been complied with. Then, what are the facts? It is clear that a plain, explicit acceptance of the conti'act was, on Thursday, the 11th of June, delivered by the plaintiff at the place of abode of the defendant, and ought to have come to his hands. Whether it came to his hands or not. the fact remains that, within the time limit- ed, the plaintiff did accept and testify his ac- ceptance. From that moment, the plaintiff was bound, aud the defendant could at any time, notwithstanding Allan, have filed a bill against the plaintiff for the specific per- formance of the contract which he had en- tered into, and which the defendant had ac- cepted. I am at a loss to guess upon what ground it can be said that it is not a contract which the court will enforce. It cannot be on the ground that the defendant had entered into a contract with Allan, because, giving to the defendant all the latitude which can be de- sired, admitting that he had the same time to change his mind as he, by the agreement, gave to the plaintiff, the law, I take it, is clear on the authorities, that if a contract, REVOCATION OF OFFER OR ACCEPTANCE. 79 unilateral in its shape, is completed by the acceptauee of the party on the other side, It becomes a perfect valid and binding con- tract. It may be withdrawn from by one of the parties iu the meantime, but, in order to be withdrawn from, information of thai fact must be conveyed to the mind of the per- son who is to be affected by it. It will not do for the defendant to say: "I njade up my mind that I would withdraw, but I did not tell the plaintiff. I did not say anything to the plaintiff until after he had told me by a written notice and with a loud voice that he accepted the option which had been left to him by the agreement." In my opinion, after that liour on Friday, earlier than 9 o'clock, when the plaintiff and defendant met, if not before, the contract was completed, and nei- ther party would retire from it. It is said that the authorities justify the de- fendimt's contention that he is not bound to lx?rform this agreement, and the case of Cooke V. Oxley, 3 Term R. G53, was referred to. But I find that the judgment in Cooke V. Oxley went solely upon the pleadings. It was a rule to shew cause why judgment should not be arrested, therefore it must have been upon the pleadings. Now, the plead- ings were tliat the vendor in that case pro- posed to sell to the defendant. There was no suggestion of any agreement which could be enforced. The defendant proposed to the plaintiff to sell and deliver, if the plaintiff would agree to purchase upon the terms of- fered, and give notice at an earUer hour tlian 4 of the afternoon of that day; and the plain- tiff says he agreed to purchase, but does not say the defendant agreed to sell. He agreed to purchase, and gave notice before 4 o'clock in the afternoon. Although the case is not so clearly and satisfactorily reported as might be desired, it is only necessary to ri'ad the judgment to see that it proceeds solely upon this allegation in the* pleadings. Mr. Justice Buller saj-s: "As to the subse- quent time, the promise can only be supported upon the ground of a new contract made at 4 o'clock; but there was no pretense for that." Nor was there the slightest allegation in the pleadings for tliat; and judgment was given agjiinst the plaintiff. Routlcdge v.Grant,4 Bing.653, is. plainly dis- tinguishable from this case upon the grounds which liave been mentioned. There the con- tract was to sell on certain terms; possession to be given upon a particular day. Those terms were varied, and therefore no agree- ment was come to; aud when the intended purchaser was willing to relinquish the con- dition which he imposed, the other said: "No; I withdiaw. I have made up my mind not to sell to you;" and the judgment of the court was that he was perfectly right. Then Warner v. Wellington, 3 Drew. 523, seems to point out the law in the clearest and most distinct manner possible. An offer was made,— call it an agreement or offer, it is quite indififerent; it was so far an offer, that It was not to be binding unless there was an acceptiiuce,— and before acceptance was made, the offer was retracted, the agree- ment was rescinded, and the person who had then the character of vendor declined to go further with the arrangement, which had been begim by what had passed between them. In the i)resent case I read the agi-ee- ment as a positive engagement on the part of the defendant Dodds that he will sell for £800, and, not a promise, but an agreement, part of the same instrument, that the plaintiff shall not be called upon to express his acquie.scence in that agreement until Fridiiy at U o'clock. Before Friday at 9 o'clock the defendant receives no- tice of acceptance. Upon what ground can the defendant now be let off his contract? It is said that Allan can sustain his agreement with the defendant, because at the time they entered into the contract the defendant was possessed of the property, and the plaintiff had notliing to do with it. But it would be opening the door to fraud of the most flagrant description if it was permitted to a defendant, the owner of property, to enter into a bind- ing contract to sell, and then sell it to som'e- body else and say that by the fact of such second sale he. has deprived him.'self of the property which he has agreed to sell by the first contract That is what Allan says in sub- stance, for he says that the sale to him was a retractation which deprived Dodds of the equitable interest he had in the propertj-, al- though the legal estate remained in him. But by the fact of the agreement, and by the re- lation back of the acceptance (for such I must hold to be the law) to the date of the agree- ment, the property in equity was the property of the plaintiff, and Dodds had nothing to sell to Allan. The property remained intact un- affected by any contract with Allan, and there is no ground, in my opinion, for the contention that the contract with Allan can be support- ed. It would be doing violence to principles perfectly well known and often acted upon in this com-t. I think the plaintiff has made out very satisfactorily his title to a decree for specific performance, both as having the equitable interest, which he asserts is vested in him, and as being a purchaser of the prop- erty for valuable consideration without no- tice against both Dodds, the vendor, aud Al- lan, who has entered into the contract with him. There will be a decree for specific perform- ance, with a declaration that Allan has no interest in the property; and the plaintiff will be at liberty to deduct his costs of the suit out of his purchase-money. From this decision both the defendants ap- pealed, and the appeals were heard on the 31st of March aud the 1st of April, 1S76. JAMES, L. J., after referring to the docu- ment of the 10th of June, 1ST4, continued: The doi.'umeut, though beginning "I here- by agree to sell," was nothing but an offer. 80 OFFER AND ACCEPTANCE. and was only intended to be an offer, for the plaintiff himself tells us that he required time to consider whether he would enter into an a^eement or not. Unless both par- ties had then agreed, there was no con- cluded agreement then made; it was in ef- fect and substance only an offer to sell The plaintiff, being minded not to complete the bargain at that time, added this memoran- dum: "This offer to be left over until Fri- day, 9 o'clock a. m. 12th June, 1874." That shows it was only an offer. There was no consideration given for the undertaliing or promise, to whatever extent It may be con- sidered binding, to keep the property un- sold until 9 o'clock on Friday morning; but apparently Dickinson was of opinion, and probably Dodds was of the same opinion, that he (Dodds) was bound by that promise, and could not in any way withdraw from it, or retract it, until 9 o'clock on Friday morn- ing, and this probably explains a good deal of what afterwards took place. But it is clear settled law, on one of the clearest prin- ciples of law, that this promise, being a mere nudum pactum, was not binding, and that at any moment before a complete ac- ceptance by Dickinson of the offer, Dodds was as free as Dickinson himself. Well, that being the state of things, it is said that the onlj- mode in which Dodds could assert that freedom was by actually and distinctly saying to Dickinson, "Now I withdi'aw my offer." It appears to me that there is nei- ther principle nor authority for the propo- sition that there must be an express and ac- tual withdrawal of the offer, or what is called a retractation. It must, to constitute a contract, appoar that the two minds were at one, at the same moment of time, that is, that there was an offer contmuing up to the time of the acceptance. If there was not such a continuing offer, then the acceptance comes to nothing. Of course it may well be that the one man is bound in some way or other to let the other man know that his mind with regard to the offer has been changed; but in this case, beyond all ques- tion, the plaintiff knew that Dodds was no longer minded to sell the property to him as plainly and clearly as if Dodds had told him in so many words, "I withdraw the of- fer." This is evident from the plaintiff's own statements in the bill. The plaintiff says in effect that, having heard and knowing that Dodds was no lon- ger minded to sell to him, and that he was selling or had sold to some one else, think- ing that he could not in point of law with- drav/ his offer, meaning to fix him to it, and endeavoring to bind him: "I went to the house where he was lodging, and saw his mother-in-law, and left with her an accept- ance of the offer, knowing all the while that he had entirely changed his mind. I got an agent to watch for him at 7 o'clock the next morning, and I went to the train ju-st before 9 o'clock, in order that I might catch him and give him my notice of acceptance just before 9 o'clock, and when that occurred he told my agent, and he told me, 'You are too late,' and he then threw back the pa- per." It is to my mind quite clear that be- fore there was any attempt at acceptance by the plaintiff, he was perfectly well aware that Dodds had changed his mind, and that he had in fact agreed to sell the property to Allan. It is impossible, therefore, to say there was ever that existence of the same mind between the two parties which is es- sential in point of law to the making of an agreement. I am of opinion, therefore, that the plaintiff has failed to prove that there was any binding contract between Dodds and himself, MELLISH, L. J. I am of the same opin- ion. The fii-st question is, whether this doc- ument of the 10th of June, 1874, which was signed by Dodds, was an agreement to sell, or only an offer to sell, the property therein mentioned to Dickinson; and I am clearly of opinion that it was only an offer, although it is in the first part of it, independently of the postscript, worded as an agreement. I apprehend that, until acceptance, so that both parties are bound, even though an in- strument is so worded as to express that both parties agree, it is in point of law only an offer, and, until both parties are bound, neither party is bound. It is not necessary that both parties should be boimd within the statute of frauds, for, if one pax-ty makes an offer in writing, and the other accepts it verbally, that will be suflBcient to bind the person who has signed the written docu- ment. But, if there be no agreement, either verbally or in writing, then, until acceptance, it is in point of law an offer only, altogether worded as if it were an agreement. But it is hardly necessary to resort to that doc- trine in the present case, because the post- script calls it an offer, and says, "This of- fer to be left over until Friday, 9 o'clock a. m." Well, then, this being only an offer, and the law says— and it is a perfectly clear rule of law — that, although it is said that the offer is to be left open until Friday morn- ing at 9 o'clock, that did not bind Dodds. He was not in point of law bound to hold the offer over until 9 o'clock on Friday morn- ing. He was not so bound either in law or in equity. Well, that being so, when on the next day he made an agreement with Al- lan to sell the property to him, I am not aware of any ground on which it can be said that that contract with Allan was not as good and binding a contract as ever was made. Assuming Allan to have known (there is some dispute about it, and Allan does not admit that he knew of it, but I will assume that he did) that Dodds had made the offer to Dickinson, and had given him till Friday morning at 9 o'clock to accept it, still in point of law that could not pre- vent Allan from making a more favorable REVOCATION OF OFFER OR ACCEPTANCE. 81 offer than Dickinson, and entorini? at once into a binding agreement with Dodds. Then Dieliinson is infonned by Berry that the property has been sold by Dodds to Al- lan. Berry does not tell us from whom he hoard it, but he says that he did hoar it, that he knew it, and that he informed Dick- inson of it. Now, stopping there, the ques- tion wJiich arises is this: If an offer has been made for the sale of property, and be- fore that offer is accepted the person who has made the offer enters into a binding agreement to sell the property to somebody olse. and the person to whom the offer was lirst made receives notice in s59, are sufficient to entitle plaintiff to a conveyance as demanded. No tender of money or demand for a deed was made during the 10 days limited in the original instrument; but were made during the period defined in the extension indorsed on the instrument. A. C. Botkin, for appellant. McCutebeon & Mclntire, for respondent. DE WITT, J., (after stating the facts a« above.) For convenience of terms we will designate the oi'iginal document pleaded as the first instrument, and the option therein as the first option, and the indorsement ex- tending the time as the second instrument and option. We will not discuss the validity of the first instrument as a foundation for an action for specific performance. We will assume, for the purpose of this decision, that it is good. The option assumed to be granted therein was not exercised with- in the time limited, and expired October 4. The consideration for this option was one dollar, whether paid b.y Ide to Leiser, or still a debt owing from Ide to Leiser, is immaterial. That consideration was ex- hausted by the expiration of the option on October 4. Ide paid his money, the one dollar, and received his g(H")ds, tiie option. Leiser took the one dollar, and deliveied a consideration therefor, viz., the option. The transaction was complete, and the terms performed by each party to the agreement. OFFER AND ACCEPTAXCE. We come to the second instrument :ind option. No consideration is named there- in, specifically or by reference. The con- sideration for the first option cannot do service for the second. That considera- tion was functus officio in the first instru- ment. A consideration determined by the parties to be the consideration for the sale of one article on one day, and so declared in writing, cannot, in the face of such de- claration, be construed by the court as a declaration for the sale of another article on another day. The first 10 days' oi)tion was a thingof value, and paid for as such. The second was another separate valuable article. Was there any consideration for its sale? We believe the same definitions and distinctions will aid this discussion. There may be (1) a sale of lands; (2) an agreement to sell lands; and (3) what is popularly called an "option." The first is the actual transferor title from grantor to grantee by appropriate instrument of con- veyance. The second is a contract to be performed in the future, and if fulfilled re- sults in a sale. It is a preliminary to a sale, and is not the sale. Breaches, rescis- sion, or release maj-^ occur by which the (Contemplated sale never takes place. The third, an option originally, is neither a sale nor an agreement to sell. It is simply a contract by which the owner of property (real estate being the species we are now discussing) agrees with another person that he shall have the right to buy his property, at a fixed price, within a time certain. He does not sell his land ; he does not then agree to sell it; but he does then sell something, viz., the right or privilege to buy at the election or option of the other party. The second party gets, in pr^senii, not lands, or an agree- ment that he shall have lands, but he does get something of value; that is, the right to call for and receive lands if he elects. The owner parts with his right to sell his lands, except to the second party, for a limited period. The second party receives this right, or rather, from his point of view, he receives the right to elect to buy. That which the uecond party receives is of value, and in times of rapid inflations of prices, perhaps of great value. A con- tract must be supported by a considera- tion, whether it be the actual sale oi lands, an agreement to sell lands, or the actual sale of the right to demand the conveyance of lands. A present convey- ance of lands is an executed contract. An agreement to sell is an executory contract. The sale of an option is an executed con- tract; that is to say, the lands are not sold; the contract is not executed as to them; but the option is as completely sold and transferred in pnesenti as a piece of personal property instantly delivered on payment of the price. Now this op- tion, this article (if value and of commerce, must have a consideration to support its sale. As it is distinct from a sale of lands, or an agreement to sell lands, so its con- sidei-ation must be distinct; although, if a sale of the lands afterwards follows the option, the consideration for the option may be agreed to be applied, and often is, as apart payment on the price of the land. But there must be some consideration IIEVOCATIOX OF OFFER OR ACCEPTANCE. 83 upon which the finger may be placed, and of whicli it may be saicl, "This was f?ivqn by tlie proposed vendee to the proposed vtMulor of the lands as the iirice for liie option, or privilege to ])nrehase. " We have been led into this endeavor to make clear our views of these distinctions, l)e- cause, in the argument, counsel did not seem to give them »s much weight as they seem to us to demand. We refer to the following authorities: Gordon v. Darnell, 5Colo. ;!tJL'; Bradford v. Foster, 87 Tenn. 4, S. \V. Kep. 11).'); Railroad Co. v. Bart- lett, 3 Cush. 224; Bean v. Burbank, 16 Me. 45S; De Rutte v. Muldrovv, ]6 Cal. fjO."); Johnston v. Trippe, ;13 Fed. Rep. 5:10; Thomason v. Dill, :K) Ala. 444; Mers v. In- surance Co., 6s Mo, ll!7; Thorne v. Deas, 4 .Johns. H4; Burnet v. Biscoe, Id. li^.j; Lees v. Whitoomb, o Bing. 'M; Bish. Cout. §<^ 77,78; McDonald v. ]5eAvick, 51 Mich. 7'J, 16 N. \V. Rep. 240; Schroeder v. Ge- meinder, 10Nev.o.")6; Woodruff v. Woodruff, 44 N. J. Kq. 055, IB Atl. Rep. 4; Perkins v. Hadsell, 50 111. 216; AVat. Sj-ec Perf. § 200. Examine the two options granted in the case before us. L. sold I. an option for 10 days from September 24th for one dollar. He' then gives an option for another 10 days from October 3d, for what? For noVliing. L. transfers this option, this in- corporeal valuable something, for noth- ing. The transfer of the option was nu- dum pactum, and void. But. the point jnst discussed being conceded, ai)pellant still contends that this second instrument ov option was a continuing offer to sell, at a given price, and was accepted by re- spondent before retracted, and that such acceptance, evidenced by, and accompanied with, the tender of the price, and demand for a deed, constitute an agreement to sell land, which n^ay be enforced in equity. We leave behind now our views of op- tions, and consideration therefor, and meet a wholly different proposition. Reading the two instruments together we find that on October 3d L. extended to I. an offer to sell his lands at the price of .i!!l,000. There was no consideration for the offer, and it could have been nullilied by L. at any time by withdrawal. But it was accepted by I., while outstanding, the price tendered, and deed demanded. It must be plain from the previous discus- sion that we do not hold that the offer, when made, or at any moment before ac- ceptance, was a sale of lands, an agree- ment to sell lands, or an option. But ui)- on acceptance and tender was not a con- tract completed? If one person offers to another to sell his property' for a named price, and while the offer is unretracted the other accepts, tenders the money, and demands the property, that is a sale. The l)roposition is elementary. The prt^perty belongs to the vendee, and the money to the vendor. Such is precisely the situ- ation of the parties herein. L. offered to sell for .?1.000, I. accepted, tendered the price, and demanded the property. Every element of a contract was present, jiarties, subject-matter, consideration, meeting of the minds, and mutuality. And as to the matter of mutuality we are now beyond the defective option. We have simi)!y an offer at a price, acceptance, iiaymeut or tender, and demand. That this was a valid contract we cannot for a moment doubt. In discussing a transaction of this nature, in Gordon v. Darnell, 5 Colo. 304, BiccK, C. J., in one of his clear opin- ions, says: "Its legal effect is that of a continuing offer to sell, which is capable of being converted into a valid contract b3' a tender of the purchase money, oj- per- formance of its c(jnditiged in the complaint. The complaint alleges that the defendant was the owner on Sep- tember 24th, when he executed the writ- ing. He has never withdrawn his offer to sell. The offer ripened into a contract Oc- tober 11th. The complaint was filed the same day. If a person, having executed a contract forthe sale of lands, knowingly executes any other agreement to sell or dispose of the same lands to another per- son, he is guiltj' of a felony. Section 200, Crim. Laws. 5lust the complaint allege that defendant has not committed a fel- ony? If defendant has parted with the land ad interim it is a fact peculiarly with in his own knowledge; knowledge whict it may well be impossible to come to the plaintiff. "It must be that in an action of this kind the complaint must make a case in which the defendant is at least prima facie able to perform." Jo- seph V. Holt, 37 Cal. 256; Elliott, C. J., in Cottrell v. Cottrell, 81 Ind. 8^, says: "The princii)al objection urged against it [the complaint] is that the first paragraph does not allege that the ances- tor of the appellants had any title to the property, which it is alleged he agreed t« convey, and is therefore bad. There are facts stated which show title in the de- cedent. » » * If the appellee is con- tent with such title as a conveyance from the heirs of the deceased vendor will con- vey, the appellants should not be allowed to prevent him from securing it. The an- cestor had bai-gained away all the title he had, and, whether that was much or little, the appellee's contract vested in him the right to have that for which he had con- tracted. It cannot be of importance to appellants whether that title was perfect or imperfect, for the appellee has a right to it, whatever its character may be. If he is satisfied, they cannot complain, for it never descended to them, but had vested in the appellee prior to the death of their ancestor. " In the case before us the plaintiff could preserve the status in quo against inno- cent purchasers from the defendant, by fil- ing a notice of lis pendens. It is not neces- sary to say what might be our views upon the question of the inability of the defendant to perform on the api^earance of further facts at the hearing. We are of the opinion under all the circumstances of this case that the comi)laint shows a prima facie case, as to this point, and that the demurrer in this behalf should be over- ruled. These views seem to us to be the exercise of a sound discretion. Schrocder V. Gemeinder, 10 Kev. 3G9; Poul Eq. .lur. §§ SGO, 1404. The judgment of the district court is reversed, and the cause is i-emand- ed, with directions to that court to over- rule the demurrer. BLAKE, C. J., and HARWOOD, J., con- cur. LATSE OF OFFER. 85 fr. f LONGWORTH ct al. v. MITCHELL.! \ r (26 Ohio St. 334.) Supreme Court of Ohio. Dec. Term, 1875. Ou the 1st of August, 1857, Nicholas Long- worth, the testator, being seised in fee of the uudivided half of a lot iu city of Cin- ciuuati, by his deed of that date leased tOie entire lot to the defendant, Mitchell, for the term of fourteen years, reserving an annual rent of fifteen dollars per "front foot" for the lii-st seven years; of eighteen dollars per front foot for the last seven years. The lease contained a covenant for quiet enjoy- ment, and Mitchell believed at the time of its execution that Lougworth was the owner of the entire lot. The lease also contained a provision that Mitchell might elect to be- come the pui'chaser of the lot, and have a general wari*antj' deed therefor, at any time within the first seven years, at the rate of $2.">0 per front foot, or at any time within the last seven years, at the rate of $300 per front foot, with interest from the date of the lease, and that, in case of such election, the ground rent paid should be deducted from the interest Just before the close of the first seven years, Mitchell elected to become the pur- chaser of the lot, and tendered to the execu- tors of Longworth the stipulated $2o0 per front foot, togetlier with some $400 of ground rent then due, and demiuided a deed for the lot, the executors being authorized and re- quired by the will of the testator to execute and fulfil all his real estate contracts. The tender was made in United States treasuiy notes, and the executoi-s refused to make a deed, but made no objection to the kind of money tendered, placing their refusal on oth- er grounds; and the case below was an ac- tion brought by Mitchell against the execu- toi-s to compel a specific execution of the con- tract by conveyance of the lot agreeably to the stipulations of the lease. To this action the executors set up three several grounds of defense: (1) That the testator owned only a moiety of the lot, and the contract could not the-e- fore be specifically executed. (2) That the tender should have been made in gold, the contract having been made prior to the passage of the legal tender act. (3) That prior to the making of tlie ten- der, the executors being in negotiation with the Cincinnati and Indiana Railroad Com- pany for the sale of the lot to that company, Mitchell, who was aware of said negotiation, agreed with the executors that he would sur- render his lease to them if they would pay him .*?2.000 and receipt for tlie rent due. and gave them two weeks in which to accept and comply with the offer; that the executors, relying upon the faith of said agreement or offer, verbally contracted to sell the lot to the railroad company, and within said peri- 1 Irrelevant parts omitted. od of two weeks, to wit, on the 29th of May, 1SG4, accepted said offer, and demanded of Mitchell a surrender of his lease, tendering him at the same time said sum of .^2,0 JU and a receipt fur the rent; but that Mitchell re- fused to accipt the tender, or to surrender the lease; and the executors say that they have since conveyed all their interest in the lot to said railroad company, in pursuance of their said verbal contract with the com- pany. Mitchell replied, denying that he ever made "any agreement" with the executors to sur- rend'^u* the lease, and alleging that his "offer" to do so was obtained by misrepreseutatioua as to the value of the lot, and the price which the railroad company were to pay therefor. Subsequently, the railroad company, and also the heirs of Nicholas Longworth, were made parties defendant, and the company filed an answer, insisting that the company was a bona fide i)urchaser without notice of Mitchell's alleged rights. At the hearing, it was proven that Mitch- ell, at the time of these negotiations, was in possession of the lot. The fact that Mitch- ell made the offer to surrender the lease, on the terms set up in the answer of the exec- utors, and that they accepted the offer, and offered to comply therewith on the said 2'Jih of May, was also provcA, or admitted; but there was a conflict of evidence as to wheth- er this acceptance and offer by the execu- tors was made within the two weeks al- lowed. The court found that the offer was made on the 13th of May, sixteen days be- fore it was accepted by the executors, and thereupon rendered a judgment in favor of Mitchell, ordering a specific execution of the contract as to one moiety of the lot, with a release of title by tlie railroad company, and a compensation in money by the executors for the value of the other moiety. The rec- ord sets forth aU the evidence in the case, and shows that a motion for a new trial was made by the plaintiff's in error, and over- ruled by the court The plaintiffs in error now seek to reverse the judgment of the superior court assi.irn- ing the following as grounds of error: (1) The finding of the court that the offer of Mitchell wps not accepted by the execu- tors within the two weeks allowed is con- trary to the evidence. (2) The time allowed for acceptance of the offer was not material, and its acceptance two days after the expiration of the two weeks was sufficient Hoadly, Johnson & Colston, for plaintiffs in error. Lincoln, Smith & Stephens, for de- fendant in error. WELCH, C. J. A5 to tlie question wheth- er the finding of the court that the offer of Mitcliell was not accepted within the two weeks is supported by the evidence, it need OFFER A^'D ACCEPTANCE. 86 only be said that a majority of us c^^J^t an- swer the question in the negative with that ^rtaintv which would justify us in revers- ing the judgment and granting a new trial. Nor do we think that the ground assumed bv counsel for the plaintiffs in error that time was not of the essence of Mitchell s of- fer is maintainable. The rule frequently adopted in a court of equity that time is not of the essence of a contract does not apply, a^ we understand tlie law, to a mere ofter to make a contract. The offer rests upon no consideration, and may be withdrawn at any time before acceptance. An offer without time given for its acceptance must be ac- cepted immediately, or not at all; and a lim- itation of time for which a standing offer is to run is equivalent to the withdrawal of the offer at the end of the time named. A standing offer is in the nature of a favor granted to the opposite party, and cannot on any just principle be made available after the time limited has expired. LAPSE OF OFFER. 87 ^ MINNESOTA LINSEED OIL CO. ▼. COL- LIER WHITE LEAD CO. ^ (Fed. Cas. No. 9.G35.) ^^'^I, Circuit Court, D. Minnesota. 18 176. ^1 This action was removed from the state court and a trial bj' jury waived. The plain- tiff seeks to recover the sum of !?12, 151.50, with Interest from September 20, 1875— a balance claimed to be due for oil sold to the defend- ant. The defendant, in its answer, alleges that on August 3d, 1875, a contract was entered into between the parties, whereby the plaintiff agreed to soli and deliver to the flofenclant, at the city of St. Louis, dur- ing the said month of August, twelve thou- sand four hundred and fifty (12,450) gallons of linseed oil for the price of fifty-eight (58) cents per gallon, and that the plaintiff has neglected and refused to deliver the oil ac- cording to the contract; that the market value of oil after August 3d and during the month was not less than seventy (70) cents per gallon, and therefore claims a set-off or counter-claim to plaintiff's cause of action. The reply of the plaintiff denies that any contract was entered into between it and de- fendant. The plaintiff resided at Minneapolis, Min- nesota, and the defendant was the resident agent of the plaintiff, at St Louis, Missouri. The contract is alleged to have been made by telegraph. The plaintiff sent the following dispatch to the defendant: "Minneapolis, July 29, 1875. To Alex. Easton, Secretary Collier White Load Company, St. Louis, Missouri: Ac- count of sales not enclosed in yours of 27th. Please wire us best offer for round lot named by you — one hundred barrels shipped. Min- nesota Linseed Oil Company." The following answer was received: "St. Louis, Mo., July 30, 1875. To the Minne- sota Linseed Oil Company: Three hundred barrels fifty-five cents here, thirty days, no commission, August delivery. Answer. Col- lier Company." The following reply was returned: "Minne- apolis, July 31, 1875. Will accept fifty-eight cents (5Sc), on terms named in your tele- gram. Minnesota Linseed Oil Company." This dispatch was transmitted Saturday, July 31, 1875, at 9:15 p. m., and was not de- livered to the defendant in St. Louis, until Monday mornim,', August 2, between eight and nine o'clock. On Tuesday, August 3, at 8:53 a. m., the following dispatch was deposited for trans- mission in the telegraph ofhce: "St. Louis, Mo., August 3, 1875. To Minnesota Linseed Oil Company, Minneapolis: Offer accepted — ship three hundred barrels as soon as pos- sible. Collier Company." The following telegrams passed between the parties after the last one was deposited in the office at St. Louis: "Minneapolis, August 3, 1875. To Collier Company, St. Louis: We must withdraw our offer wired July 31st. Minnesota Lin-fcd Oil Company." Answered: "St Louis, August 3, 1875. Minnesota Linseed Oil Company: Sale effect- ed before your refpiest to withdraw was re- ceived. When will you ship? Collier Com- pany." It ai)poarcd that the market was very much unsettled, and that the price of oil was sub- ject to sudden fluctuations during the mouth previous and at the time of this negotiation, varying from day to day, and ranging be- tween fifty-five and seventy -five cents per gallon. It Is urged by the defendant that the dispatch of Tuesday, August 3(1. 1875, accepting the offer of the plaintiff transmit- ted July 31st, and delivered Monday morn- ing, August 2d, concluded a contract for the sale of the twelve thousand four hundred and fifty gallons of oil. The plaintiff, on the con'.rary, claims, 1st, that the dispatch ac- cepting the proposition made July 31st, waa not received until after the offer had been withdrawn; 2d, that the acceptance of the offer was not in due time; that the delay was unreasonable, and therefore no contract waa completed. Young & Newel, for plaintiff. Geo. L. & Chas. E. Otis, for defendant. NELSON, District Judge. It is well set- tled by the authorities in this country, and sustained by the later English decisions, that there is no difference in the rules governing the negotiation of contracts by corespond- ence through the post-office and by telegraph, and a contract is concluded when an ac- ceptance of a proposition is deposited in the telegraph office for transmission. See 14 Am. Law Reg. 401, "Contracts by Telegraph," arti- cle by Judge Redfield, and authorities cited; also, Trevor v. Wood, 3G N. Y. 307. The reason for this rule is well stated in Adams v. Lindsell, 1 Bam. & Aid. GSl. The negotiatirvn in that case was by post The court saia: "That if a bargain could not be closed by letter before the answer was re- ceived, no contract could be completed through the medium of the post-office; that If the one party was not bound by his offer when it was accepted (that is, at the time the letter of acceptance is deposited in the mail), then the other party ought not to be bound until after they had received a notifi- cation that the answer had been received and assented to, and that so it might go on ad infinitum." See, also. 5 Pa. St. 330; 11 N. Y. 441; Mactier v. Frith, 6 Wend. 103; 48 N. H. 14; 8 C. B. 225. In the case at bar the delivery of the message at the telegraph of- fice signified the acceptance of the offer. If any contract was entered into, the meeting of minds was at 8:53 of the clock, on Tues- ' day morning, August od. and the subsequent dispatches are out of the case. 1 Pars. Cont 482. 483. This rule is not strenuously dissented from 88 OFFER AND ACCEPTANCE. on the argument, and it is substantially ad- mitted that the acceptance of an offer by letter or by telegraph completes the contract, •when such acceptance is put in the proper and usual way of being communicated by the agency employed to carry it; and that when an offer is made by telegraph, an acceptance by telegraph takes effect when the dispatch containing the acceptance is deposited for transmission in the telegraph ofhce, and not when it is received by the other party. Con- ceding this, there remains only one question to decide, which will determine the issues: Was the acceptance of defendant deposit- ed in the telegraph office Tuesday, August 3d, within a reasonable time, so as to con- summate a conti'act binding upon the plain- tiff? It is undoubtedly the rule that when a proposition is made under the circumstances In this case, an acceptance conclu(Ees the con- tract if the offer is still open, and the mu- tual consent necessary to convert the offer of one party into a binding contract by the acceptance of the other is established, if such acceptance is within a reasonable time after the offer was received. The better opinion is, that what is, or is not. a reasonable time, must depend upon the circumstances attending the negotiation, and the character of the subject matter of the contract, and In no better way can the in- tention rf the parties be determined. If the negotiation is in respect to an article stable in price, there is not so much reason for an immediate acceptance of the offer, and the same rule would not apply as in a case where tlie negotiation related to an article subject to sudden and great fluctuations in the mar- ket. The rule in regard to the length of the time an offer shall continue, and when an accept- ance completes the contract, is laid down in Parsons on Contracts (volume 1, p. 482). He says: "It may be said that whether the offer be made for a time certain or not, the in- tention or understanding of the parties is to govern. * * * If no definite time is stated, then the inquiry as to a reasonable time re- solves itself into an inqtiiry as to what time it is rational to suppose the parties contem- plated; and the law will decide this to be that time which as rational men they ought to have understood each other to have had in mind." Applying this nile, it seems clear that the intention of the plaintiff, in making the offer by telegraph, to seU an article which fluctuates so much in price, must have been upon the understanding that the acceptance. If at all, should be immediate, and as soon after the receipt of the offer as would give a fair opportunity for consideratiort The de- lay here was too long, and manifestly unjust to the plaintiff, for it afforded the defendant an opportunity to take advantage of a change in the market, and accept or refuse the offer as would best subsei-ve its interests. I Judgment will be entered in favor of the i plaintiff for the amount claimed. The eoun- i ter-claim is denied. Judgment accordingly. LAPSE OF OFFER. 89 / HYDE V. WRENCH. 0.^ (3 Beav. 334.) 9 Rolls Court. Dec. 8. 1840. This case came en upon general deranrrer to a bill for specific performance, which stated to the effect following: The defendant being desirous of disposing of an estate, offered, by his agent, to sell it to the plaintiff for £1200, which the plaintiff, by his agent, declined; and on the Gth of June the defendant wrote to his agent as follows: "I have to notice the refusal of your friend to give me £1200 for my farm. I will only make one more offer, which I shall not alter from; that is, £1000 lodged in the bank until Michaelmas, when title shall be made clear of expenses, land tax, CONTRACTUAL INTEXTION. 6 93 f STAMPER V. TEMPLE et al (6 Humph. 113.) Supreme Court of Tennessee. Doc Term, 1845. This i.s an action of as.sumpsit brought in the county of Franklin. The declaration avers that defendant eharj^ed that G. B. and A. D. Alexander had murdered his son, D. M. Stamper; that he promised that if any person should arrest the said G. B. and A. D. Alexander, so that they should be brought to justice, he would pay to such person two hundred doUai-s; and that plaintiffs, after said promise, and confiding in the .same, did arrest them and commit them to the custody of the sheriff of the county. The defendant pleaded non assumpsit, and the case came on for ti'ial, and was tried by Judge Marchbanks and a jury, and a verdict and judgment were rendered for the plain- tiffs for $200. The defendant appealed. Mr. Turney, for plaintiff in error. Mr. Venable, for defendants in error. TUIILEY, J. This is an action brought by Lassater and Temple against Stamper to re- cover the sum of two hundred dollars, which they allege is due to them as a reward for arresting Granville B. and Alfred D. Alex- ander, charged with murdering the son of Stamper. The bill of exceptions discloses the follow- ing state of facts: Some time in the month of September, 1S43, the sou of Stamper was killed, and himself severely wounded by the two Alexanders. On the evening after the unfortunate affi'ay there were several persons at Stamper's house. He was lying on a bed, laboring under great bodily pain from his wounds, and great men- tal anguish for the loss of his son, who was at the time a corpse in his house, his wife and daughters half distracted. The subject of arresting the Alexanders was spoken of. Stamper said that he did not expect they would be taken that night; that he would put out a reward ahead of them; that he got up and went into the yard, where most of the company were assembled, and observed that he would give a reward of two hundred dol- lars to any person who would apprehend the Alexanders. To this remark one of the coyi- pany observed, "Mr. Stamper, I don't want your money;" to which Stamper replied, "Gentlemen, I did not mean it for you." This is all the proof as to the reward for the arrest being offered by Stamper. .Joseph iS'ewman, the sheriff of the county, deposes that on the evening of a day in Sep- tember, 1843, he received a message from Stamper informing him that his son had been murdered and himself severely wound- ed, and requesting him to come immediately to his house. Witness having just returned from Nashville, and being much fatigued, de- clined going, but sent his deputy Jonathan I>assater, one of the plaintiffs, who. on ihe next morning, delivered to him the bodies of the two Alexanders, whom he had arrested without process. This was all ♦^he testimony in the case. The court charged the jury, "that to entitle the plaintiffs to recover against the defendant, he must have made hinuself liable to them by contract. If the Alexanders murdered his son and fled, and were arrested by the plain- tiffs, the defendant, In the absence of a con- tract to that ef-^ct, would not be bound to pay them any reward. If the Alexanders killed defendant's son and fled, and upon that defendant offered a reward of two hundred dollars to any person who would arrest them, saying at the sam? time that he did not make his proposition to any person who was pres- ent, and the plaintiffs were present, they would not bfc entitled to a recovery; that if the defendant offered a reward of two hun- dred dollars to any person who would arrest the Alexanders, and the phiintiffs after the offering the reward by the defendant, but be- fore they knew tliat it had been offered, ar- rested the Alexanders for the murder, the fact that they were at the time ignorant that the reward had been offered would be no ground of defence against a suit brought for its recovery." In this charge, the whole court agree that there is error. The judge in the first place charged the jury that there must be a con- tract of reward to be paid before a suit could be maintained for the recovery of the reward. To make a good contract there must be an aggregatio mentium, an agreement on the one part to give and on the other to receive. How could there be such an agreement if the plain- tiffs in this case made the arrest in ignorance that a reward had been offered? The arrest would have been made not for the reward, but in discharge of the public duty. But there are other objections arising out of the proof of higher character than this er- ror in the charge of the judge. We do not think that the proof establishes the fact that a reward of two hundred dol- lars was actually offered. It appears that the defendant and his fam- ily were in deep aflliction at the loss of his son; that he himself was laboring under the effect of severe wounds received from the same persons who had killed his son; that when the arresting of the persons who had perpetrated the outrage was spoken of he ob- served that he would givt two hundred dol- lars to have them arrested. But to a remark of one of the company that he did not want any of his money, he said he did not intend it for them. Who did he intend it for then? For others who were not present? How did he suppose they were to know it? He made no public offer. He authorized no one to make it for him. We are constrained to be- lieve that what is called an offered reward of two hundred dollars was nothing but a strong expression of his feelings of anxiety for the arrest of those who had so severely injured him, and this greatly increased by the 94 distracteer's services. The other swore that she had been 11 years in the employ- ment business in Chicago, and was acquaint- ed with the wages of housekeepers during that time. A sufficient foundation was laid to justify the expression of an opinion by each witness as to the value of the services rendered by appellee. 2. Objection is made to two instructions given for the plaintiff, and to the modifica- tion of two instructions asked by the defend- ant, and to the refusal of one instruction asked by the defendant As to the latter, its substance is sufficiently embodied in the in- structions given, and therefore no injury was done by its refusal. All the points urged against the instmctions given and the instructions modified may be summed up in one objection, — that those instructions au- thorize the jury to find whether there was a contract, express or implied, to pay for ap- pellee's services. It is claimed that no re- covery could be had by the plaintiff unless there was an express conti-aet by the appel- lant to pay her for her services, and that, if there was no express contract, none could be implied from the facts or circumstances. Where services are rendered by one admit- ted into the family as a relative, the pro- sumption of law is that such sersMces are gratuitous, and that the parties do not con- template the payment of wages therefor. This presumption, however, may be over- come by proof. The proof necessary to over- come the presumption may be either of an express contract or of a contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pe- cuniary recompense other than that which arises naturally out of the family relation. 96 OFFER AND ACCEPTANCE. Miller v. Miller, IG 111. 296. A contract is express "when it consists of words written or spoken, expressing an actual agreement of the parties." It is implied "when it is evidenced by conduct manifesting an inten- tion of agreement." 3 Am. & Eng. Enc. Law, p. 842. Anderson, in his Law Diction- aiy. says that a contract is express "when the agreement is formal, and stated either verbally or in writing, and is implied when the agreement is matter of inference and de- duction." In Ex parte Ford, 16 Q. B. Div. 307, it was said that "whenever circumstan- ces arise in the ordinary business of life in which, if two persons were ordinarily honest and careful, the one of them would make a promise to the other, it may properly be infeiTed that both of them understood that such a promise was given and accepted." In Marzetti v. Williams, 1 Bam. & Adol. 415, Lord Tenterden said: "The only difference between an express and an implied contract is in the mode of substantiating it. An ex- press contract is proved by an actual agree- ment; an implied contract, by circumstan- ces, and the general course of dealing be- tween the parties." In the same case Parke, J., said: "The only difference, however, be- tween an express and an implied contract is as to the mode of proof. An express con- tract is proved by direct evidence, an implied contract by cii'cumstantial evidence." And Patterson, J., said: "Bt.t the only distinc- tion between the two species of conti-acts is as to the mode of proof. The one is proved by the express words used by the parties; the other, by circumstances showing that the parties intended to contract." An agree- ment may be said to be implied when it is inferred from the acts or conduct of the parties, instead of their spoken words. "The engagement is signified by conduct, instead of words." Bixby v. Moor, 51 N. H. 402. This question has been before the supreme court of Wisconsin in a number of cases. In Hall v. Finch, 29 Wis. 278, where the plain- tiff presented a claim against the estate of her deceased brother for the value of her services as hoasekeeper during several years while she resided in his house, acting and ti'eated as the mistress thereof, the coxirt, after stating the general rule that the rela- tion existing between the parties, as parent and child, stepparent and stepchild, brother and sister, and the like, raises a presumption that no payment or compensation was to be made beyond that received by the claimant at the time, holds that this presumption can only be overcome by clear and unequivocal proof to the contrary; that the evidence must be clear, direct, and positive that the relation between the parties was that of debtor and creditor; that the party seeking to recover compensation for services rendered under euch circumstances must show an "agree- ment or understanding that they were to be paid for." And the court there uses the fol- lowing language: "In regard to such agree- ment or understanding, it is manifest from' the nature of the case that it can in general be arrived at only by express stipulation be- tween the parties, and accordingly we find the best considered authorities holding that an express contract must be shown." Then follows a review of quite a number of author- ities, mostly Pennsylvania decisions, two of which (Hai-tman's Appeal, 3 Grant's Gas. 271, and Lynn v. Lynn, 29 Pa. St. 3G9) hold that there can be no recoveiy for services in such cases without proof of an express conti-act In Pcllage v. Pellage, 32 Wis. 130, where the action was by a son against his father for services rendered to the latter by the former after he became of age, it was held that, where such a relation of' kindred exists, the law will imply no promise on the part of the father to pay for the services of the son, the presumption being that he rendered them gratuitously, or in consideration of having a home with his father, and being furnished with board and clothing and care and atten- tion in sickness; that the son cannot recover for his services in such a case without show- ing that a contract existed between him and his father by which the latter agreed to pay for such services; that the proof of such con- tract is not to be placed upon the same grounds as a contract between strangers, un- affected by any personal relation; that the evidence of the contract must be positive and direct; that the contract cannot bo inferred from circumstances and probabilities; and that "there should be evidence which would warrant a jury in finding that there was an express contract or agreement to that effect." In Tyler v. Burrington, 39 Wis. 376, where the plaintiff, having been received in infancy into a family not of kin to her, sought to re- cover for services rendered to such family, the doctrine of the Hall and Pellage Cases seems to be somewhat modified, it being held that "an express contract to pay, or the rela- tion of master and servant, may be as fairly and incontrovertibly established by circum- stantial evidence as by direct evidence"; that the mere fact of plaintiff's reception in her in- fancy into the family of the deceased implied no contract to pay her for any services she might render to it, "though such a contract might be implied from the surrounding cir- cumstances"; "that, if it appeared expressly or from the surrounding circumstances that she was so received in the relation of a child, the law excludes an implied contract to pay her wages for her services; but that she could recover upon an express contract to pay her, which might be established by direct and positive evidence, or by circumstantial evi- dence equivalent to direct and positive"; that, failing to prove an express contract, "it rest- ed with her to establish an implied contract by the surrounding circumstances"; that "mere expectation on his part to pay, and on her part to receive, wages, would not consti- tute an express contract, unless, by mutual expression of the expectation, it became con- CONTRACTUAL INTENTION. 97 sensual"; that "expectation looks rather to an implied tlian an express contract"; and that, "if established by competent evidence as entering into the res gestaj, such expectations of these parties might give color to circum- stances tending to show that they ripened Into a mutual understanding,— an express "con- tract." In Wells V. Perkins, 43 Wis. IGO, whore a stepson sued his stepfatlier for serv- ices rendered the latter after the plaintiff reached his majority, an instimction was con- demned because it was open to the objection "of confounding circumstances from which a contract might be implied with circumstan- tial evidence of an express cttntract"; and it was held that the law excludes an implied contract, and that the plaintiff could only re- cover upon an express contract, which "might bo established by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive," It will be noticed that the cases in Wisconsin differ from the Eng- lish cases in holding tliat an express contract may be established by circumstantial evi- dence. In Ayers r. Hull, 5 Kan. 419, It was held that where the sister resides in the family of her brother, performing the ordinary services of a housekeeper, and receiving clothing and the benefit of a house for nearly eight years, without keeping any account, and witiiout any promise or contract or understanding that she should receive wages, the law will not imply a contract for services rendered, nor hold the brothei-'s estate chargeable with a claim made for such services for the first time after the death of the brother. See, also, Williams v. Hutchinson, 3 N. Y. 319, 5 Barb. 128. In Mills v. Joiner, 20 Fla. 479, where a daughter of full age brought suit against her father for services while li>ing with him at his house and as one of his family, it was held to be a presumption of law that he was not bound to pay her, but that "tliis presump- tion may be overcome by proof of a special contract, express promise, or an implied prom- ise, and such implied promise or undersUind- ing may be inferred from the facts and cir- cumstances shown in evidence; and that "the jury should have been furtlier instructed that if, under all the eircumstiinces of tlie case, the services were of such a nature as to lead to a reasonable belief that it was the under- standing of the parties that compensation should be made for such services, then the jury should find an implied promise." In Scully V. Scully, 28 Iowa, 548, where a sis« ter filed a claim against the estate of her d» ceased brother, a bachelor, for services in do ing his housework while a member of his family, It was said: "AVhere it is shown that the person rendering the soi-vice is a member of tlie family of the person served, and receiving support therein, either as a child, a relative, or a visitor, a presumption of law arises that such services were gratuitous; and in such case, before the person rendering the service can recover, the express promise HOPK. SEL. CAS. CONT. — 7 of the! party served must be shown, or such facts or circumstances as will authorize the jury to find that the services were rendered in the expectation by one of receiving, and by the other of making, compensation there- for." In Smith v. Johnson, 4~} Iowa, 308, it was held that no recovery can be had in such cases where there is no express contract, and "it is not shown in the record that the serv- ices were i)erformed with the expectation 06 the part of either that they were to ba paid for." We are inclined to hold that an express contract may be proved, not only by an actual agreement, by direct evidence, by tha express words used by the parties, but also by circumstantial evidence; and that ao implied contract may be proved by circnim- stances showing that the parties intend- ed to contract, and by general course of deal- ing between them. In Miller v. Miller, su- pra, an instruction was approved which stated that it was "incumbent on the plain- tiff to prove an express hiring or circum- stances from which an express hiring may be reasonably inferred," etc. And in Brush V. Blanchard, 18 111. 4G, It was said: "There is no evidence of an express contract to pay for services, nor are there any facts in evidence from whiclr such contract can be implied." Similar langn.Tgo is also used in Faloon v. Mclntyre, IIS IIL 2U2, 8 N. E. 315, and in Collar v. Patterson, 137 111. 403, 27 N. E. G04. The strict rule laid down in the cases in Wisconsin and Pennsylvania has its basis in the danger of fraud and perjury by permitting any member of a family to insist on a greater share of the property of an estate than is given by the law, or by a will, upon the ground that it is due for serv- ices. The encouragement of claims for such services is to destroy the peace and harmony of families through the strife and contro- versy resulting therefrom. The rule in this state is stated in Miller y. Miller, supra, where we said: "Where one remains with a parent, or with a person standing in the relation of parent after arriving at major- ity, and remains in the same apparent rela- tion as when a minor, the presumption is that the parties do not contemplate pay- ment of wages for services. This presump- tion may be overthrown, and the reverse establisliod, by proof of an express or im- plied contract, and the implied contract may be proven by facts and circumstances which show that both parties, at the time the serv- ices were performed, contemplated or intend- ed pecuniary recompense other than such as naturally arises out of the relation of parent and child." This lan.guage was quot- ed and approved in the recent case of Switzer v. Kee, 146 111. 577, 35 N. E. 100. But. where it is said that a contract to pay for such serv- ices may bo implied. something more is meant than the more promise to pay which the law implies where one person does work for another with the knowledge and approbatioa ys OFFER AND ACCEPTANCE. of that other. The implied promise thus raised by the law is rebutted when there is shown such a relation between the pai-ties as to exclude the inference that they were deal- ing on the footii:!,' of a contract. Ayers v. Hull, supra; 3 Am. & Eng. Enc. Law, p. $61. The evidence must show that, when the services were rendered, both i)arties expected them to be paid for. Miller v. Miller, supra; Byers v. Thompson, 66 111. 421; Fruitt v. Anderson, 12 111. App. 421. The facts and circumstances must be such as to show that, at the time the services were rendered, the one expected to receive payment and the other to make payment. Fruitt v. Anderson, supra. If the expectation of each would not con- stitute a contract unless there was an ex- pression of that expectation, such criticism would not apply here, because the jury were instracted as follows: "If the jury believe from the evidence that the defendant re- quested the plaintiff to do the services in question, and, by words or acts, knowingly gave her to understand that she would be paid for doing it, and that plaintiff, in com- pliance with such request (if there was any), did the work in question for the defendant, then she is entitled to recover." "The re- lationship existing between the parties, and the fact that they and defendant's mother lived together as a single household while the work was being done for which this suit is brought, will not bar a recovery in this case if the jury believe from the evidence that the defendant requested the plaintiff to do the service in question, and promised to pay her for it, or, by words or acts, know- ingly led her to believe that she wotild be paid for doing it." The jm-y were further in- structed that, where voluntary services are rendered by those sustaining family rela- tions, the presumption of law is that the parties do not contemplate payment or re- ceipt of wages; and that where services are rendered by those near of kin, or by those sustaining family relations, the law will im- ply no contract for compensation; and that, unless a contract to pay is shown in such case, no recovery can be had. It is true that in instructions asked by the defendant, and given for him, the jury were told that the plaintiff could not recover unless she proved by the preponderance of the evidence an express contract to pay for her services; but they were told, in another instruction, that an express contract might be established by circumstances and the conduct of the par- ties, or by words in connection therewith; and we do not think that the jury could have been misled when all the instructions are considered together as one charge, and in view of the evidence heretofore and here- inafter referred to. In Morton v. Rainey, 82 111. 215, plaintiff presented a claim for serv- ices against the estate of his deceased uncle, in whose family he had lived from the time he was 11 years old until he reached his majority, and during that time had labored for the deceased, and received his board, clothing, and medical attendance; and we there said: "While appellee, during minor- ity, was provided by the deceased with cloth- ing, medical attendance, and all the neces- saries furnished by a parent to a child, after his majority he provided his own clothing, paid for his own washing, and in fact re- ceived nothing from the deceased except his board. Under such circumstances, the pre- sumption that appellee was working as he did when a minor is removed, and the facts are sufficient to establish an implied contract on the part of the deceased to pay appellee what his services were reasonably worth." Such facts as were there held sufficient to es- tablish an implied contract exist in the case at bar. In addition, appellee swore that, on three different occasions while she lived in appellant's house, she talked with his mother, in his presence, about her compen- sation, and during these conversations he said that he would pay her for her time. It is true that he contradicted her in reference to this matter, but it was for the jury to pass upon the evidence. The facts are set- tled by the judgment of the appellate com-t so far as we are concerned. We find no error in the record which, in our opinion, would justify a reversal. The judgment of the ap- pellate com't is affirmed. Affirmed. COXTHACTUAL INTENTION. 99 n MOULTON v. KERSHAW et aj. d/| J^f^ (18 W. W. 172, 59 Wis. 31G.) \Jl I? Supreme Court of Wisconsin. Jan. 8. 1SS4. \- Appeal from circuit court, Milwaukee coun- ty. Fiucbes, Lynde & Miller, for appellants. Jenkins, Winkler & Smith, for respondent. TAYLOR, J. The complaint of the respond- ent alk'Ki'S that the appellants were dealers in salt in the city of Milwaukee, including salt of the Michigan Salt Association; tliat the respondent was a dealer in salt in the city of La Crosse, and accustomed to buy salt in large quantities, which fact was known to the appellants; that on the nineteenth daj- of September, 1882, the appellants, at Milwau- kee, wrote and posted to the respondent at La Crosse a letter, of which the following is a copy: "Milwaukee, September 19, 1SS2. "J. H. Moulton, Esq., La Crosse, Wis.— Dear Sir: In consequence of a rupture in the salt trade, we are authorized to offer Michi- gan fine salt, in full car-load lots of SO to 95 bbls., delivered at your city, at S5c. per bbl., to be shipped per C. & N. W. R. R. Co. only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order. "Yours truly. C. J. Kershaw -fc Son.';. The balance of the compla*/!! reads as fol- lows: "And this plaintitT alleges, upon information and belief, that sai8, Lord Chancellor Cranworth said: "If parties have entered into an agreement, they are not the less bound by that agree- ment because they say, 'We sent it to a so- licitor to have it reduced into form;' but when the parties negotiate, and do not say so, the mere fact that they do send it to a solicitor to have the matter reduced into form affords to my mind generallj^ cogent evidence that they do not intend to bind themselves till it is reduced into form." Lord Wensleydale said: "I'hese cases often occur in courts of law, and the question then always is whether the parties mean to embody the contract made by parol in writing. If they do, noth- ing binds them till it is written. If they en- ter into a contract with a view to a written agreement nothing will bind them btit that written agreement and that quite independ- ently of the statute of fi-auds, applying to all 104 OFFER AND ACCEPTANCE. agreements. * » * If the parties agree finallv to be bound by auy terms, and then, for the sake of preserving a memorial, hav- ing agreed to the original terms, they get a document drawn up, there is no doubt they are boimd by the original terms." In Mor- rill V. Mining Co., 10 Nev., at page 135, the com-t declai-ed the genei*al rule to be tliat where the parties enter into any general agi-eement, and the undei-standing is tliat it is to be reduced to writing, or, if it is al- ready in a written form, that it is to be signed before it is to be acted on or to take effect, it is not binding until it is so written or signed. In Methudy v. Ross, 10 Mo. App. 106, the court said: "The mere fact that a written contract was to be subsequently prepared does not show that a final agree- ment between the parties was not made, but it tends to show it; and in this case we think it clear that there was to be a more explicit agi-eement, which was to be reduced to writ- ing, that this was not done, and that there was no meeting of minds." In Eads v. Ca- rondelet, 42 Mo. 113, the plaintiff made to the city of Carondelet a written proposition, con- taining the terms on which he would build gunboats in that city. The city council passed an ordinance reciting the proposition, and expressly accepting it as made, but, in the second section of the ordinance, directed and empowered the mayor to enter into a written contract with the plaintiff, and em- ploy counsel to draft the contract. The plaintiff carried out his proposition, but the city failed to perform any part. Held, that the city was not boimd, as further formality was contemplated. In. Commissioners v. Brown, 32 N. J. Law, 504, Brown made a proposition to the commissioners to do cer- tain work in laying pipe. The commission- ers accepted the proposition, and directed a written contract to be prepai*ed. This was done, but it was not signed. Held, that the commissioners were not boimd. In this case, however, the law provided that the contracts of the water commissioners should be in vsTiting. This fact showed conclusively that a written contract must have been contem- plated. In Congdon v. Darcy, 46 Vt. 478, the negotiation was for building a dwelling house by the plaintiff for the defendant Everything was agreed upon, and it was also agreed that the contract should be put in writing if the defendant desired- The de- fendant afterwards expressed such desire, and a writing was prepared, embodying the agreement, but the defendant refused to sign it Held, there was no completed contract From those expressions of courts and ju- rists, it is quite clear that, after all, the ques- tion is mainly one of intention. If the party sought to be charged intended to close a con- tract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the con- tract actually made, though the signing of the written draft be omitted. If, on the oth- er hand, such party neither had nor signified such an intention to close the contract until it was fully expressed in a written instru- ment, and attested by signatiu'cs, then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: If the written draft is viewed by the parties merely as a convenient memorial or record of their pre- vious conti'act its absence does not affect the binding force of the contract- If, however, it is viewed as the consummation of the ne- gotiation, there is no contract until the writ- ten draft is finally signed. In determining which view is entertained in any particular case, several circumstances may be helpful, as whether the contract is of that class which are usually found to be in writing, whether it is of such nature as to need a formal writing for its fuU expres- sion, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether the negotiations them- selves indicate that a written draft is con- templated as the final conclusion of tlie nego- tiations. If a written draft is proposed, sug- gested, or referred to dm-ing the negotiations, it is some evidence that the parties intended it to be the final closing of the contract Still, with the aid of all rules and sugges- tions, the solution of the question is often dif- ficiilt, doubtf;il, and sometimes unsatisfac- tory. An illustration of this is the case of Rossiter v. Miller, above quoted from- In that case. Lord Chief Justice Coleridge and Lord Justices James and Baggallay, three of England's most distingruished judges, were clear that there was no contract, for want of a formal draft Lord Chancellor Cairns and Lords Hatherly, Blackburn, and Gordon, equally able and eminent jurists, were confi- dent in the contrary opinion. We come now to the consideration of the circumstances and correspondence in this case. The attempt was to negotiate a contract for the use of space on ocean steamers, of which the shippers were to have contix)! to some extent, and in which they were to set up their appliances, and load and care for their own merchandise. This arrangement is quite different from the ordinary contract of affreightment It is like a charter party, which is almost universally reduced to for- mal written draft. The negotiations contemplated not simply a contract for one area of space on a single steamer for a single trip. The contract Mas to be for a year, and for different areas of space on three different ships. The inter- ests of the contracting parties in those spaces were so various, and, if not conflicting, yet In such close contact that a contract would need to contain many stipulations in order to sufficiently define the rights and duties of the parties- The draft prepared by the CONTRACTUAL INTENTION. 105 steamship company would, if printed in this 1 type, occupy over three pages of this volume. It contained some 21 distinct stipulations, many of them nowhere alluded to in the cor- respondence or conversations, and yet seem- ingly essential to be agreed upon in a con- tract for chai-teriug space on ocean steamers for the transportation of dressed meats. It had annexed, as a part of itself, a long, print- ed, blank biU of lading. The elder Tori-ance testified that all the details in the written draft were the well-understood custom of the trade, and understood in every similar con- tract He also testified that "the contract was carefully drawn up," and that when he drew it he had before him several other con- tracts. So far as the case shows, the draft was entirely In manuscript No printed blanks seem to have been in existence, as there probably would have been, had the nu- merous details become crystaUzed into a weU- understood custom. The defendants deny the existence of any such custom or under- standing. The claim of the plaintiff company that it would have made nearly $25,000 profits by Buch a contract shows that the negotiations were not about a trifle. The correspondence seems to Indicate that a formal draft of the contract was in the minds of the parties, or at least in the mind of the defendants, as the only authoritative evidence of a contract In the first letter,— that of November 19th,— Torrance ct Co., the plaintiff's agents, write that they are author- ized "to make a contract for dressed beef on our steamers Samia and Oregon, and we hasten to advise you that we are prepared to discuss the matter with you." In the sec- ond letter, they Invite a bid. In the letter of March 3, 1890, they name terms, and then say, "If you are inclined to do anytliing on these terms, you might further communicate with us, or our Portland house." In the let- ter of March 24th, from Portland, they say, "We would not be prepared to enter into a contract with you for the Vancouver, Sarnia, and Oregon, unless for one year, from Mon- treal during the summer, and PorUaud in winter, we reserving tlie right to withdraw Vancouver during the winter." In the letter of AprU 1st, they say, "You can arrange with our Portland house in reference to the con- tract" July 8th the defendants wired toe a copy of the contract to be sent On the same day, Torrance & Co. write, apologizing for neglect to send copy. July 10th, Torrance & Co. send the written draft which has been above described, and write, "We now inclose you copy of our proposed contract, which we trust may be found in accordance with the understanding arrived at last March." Neither party, during all the correspond- ence, seems to have made any change in his business operations by reason of anything in the corresix)ndence. No dressed meats were shipped by the defendants, or offered for shipment No space was reserved by the plaintiff, and there was no delay or hin- drance suffered in its regular business. The case is by no means free from doubt and difficulty, but due reflection and study of the evidence have at the last brought us to the conclusion that what the plaintiff claims to have become a perfected contract on April 5, 1890, by the defendants' letter of that date, was at the most only the accept- ance of the proposed basis of a contract which was yet to be perfected 'as to details, and put in writing, and that the defendants did not have, nor signify, any intention to be bound until the written draft had been made and signed. Judgment for defendants. 106 CONTRACTS UNDER SEAL. W MARTIN T. FLAHARTY et aL ^ c(j (32 Pac. 2S7, 13 Mont. 96.) )^ Supreme Court of Montana. Feb. 6, 1893. Appeal from distilct court, Gallatin county; Frank K. Armsti'ong, Judge. Ejectment by J. P. Martin, administrator, against Martha Flaharty and others. Judg- ment for defendants. From an order refus- ing a new trial, plaiutifiE appeals. Affirmed. E. P. Cadwell and J. L. Staats, for appel- lant Luce Sc Luce, for respondents. PEMBERTON, C. J. This is a suit in eject- ment instituted in the court below by appellant as administiator of Rebecca Githens, deceased. The complaint is such a one as is ordinarily employed in such actions. The answer con- tains a denial of all of the material allega- tions contained in the complaiut, and alleges affijmatively that the deceased was not the owner of the demanded premises at the time of her death, but was the tenant of the re- spondents; that, as she did not die seised of any estate in the premises, her administrator, the appellant, cannot maintain this action. Both parties in the court below having ex- pressly waived a jury, the case was tried by the court. The findings and judgment of the court below were in favor of the respondents. The appellant filed his motion for a new trial, which was overruled, and from the order of the court, overruling his motion for a new trial, this appeal is taken. The facts of the case are substantially as follows: The deceased, Rebecca Githens, was the mother of the respondents. On the 2d day of January, 1888, the deceased, who was then seised in fee of the premises in dispute, executed a deed to the demanded premises to the respondents. On the same day the re- spondents executed a lease to the same prem- ises to the deceased for the term of her nattu"al life, and delivered the same to the de- ceased. The proof is not positive that the deed was actually then delivered by the gran- tor to the grantees; that is, by manual de- livery. Some months after the execution of the said deed and lease, the deceased, in com- pany with Mrs. Flaharty, one of the grantees, took both of said instruments to the Gallatin Valley Bank, and dehvered them to the as- sistant cashier. This inscription was written on the outside of said paper: "To deliver to Mrs. Githens, and, in case of her death, to Mrs. Flaharty." Mrs. Githens died some months after the delivery of these papers to the bank, without even calling for them, and without even attempting or expressing any desire to regain the possession of them. After the death of Mrs. Githens the papers were de- livered to Mrs. Flaharty. While these papers were in the bank, Mrs. Githens spoke of them to witnesses, saying the "gii'ls' deed" (meaning the respondents) was in the bank. The evi- dence also shows that the deceased occupied the demanded premises under said lease from its execution until her death. After the death of Mrs. Githens the respondents took posses- sion of the demanded premises, and have exercised control thereof ever since. The de ceased, in her lifetime, while said papers were in tlie bank, spoke of both the deed and lease bemg in the bank, and of the deed as be- longing to the respondents. Upon this show- ing of facts appellant contends there was no delivery of said deed, that the deceased never lost control over it dm-ing her lifetime, and that the deliveiy thereof was void. Coimsel for the appellant concedes that if the deed was delivered he has no case. Respondents, of course, claim that the deed was delivered. What, then, is a deliveiy? And how can the delivery be shown? In 5 American and English Encyclopedia of Law, (page 447,) we find this doctrine asserted: "The intention always controls the determination of what constitutes a sutfi- cient delivery; and it may be manifested by acts or by words, or by both, in the most informal manner. But either acts or words manifesting the intention must be present, in order to constitute a good deliverj'. But the deed need not be actually delivered, if the grantor intends the execution to have the ef- fect of a delivery, and the parties act upon this presumption. Delivery will be presumed from the fact that the deed was executed before the witnesses, and declared to be delivered in their presence." And see cases cited in notes. In Washburn on Real Property (volume 3, 5th Ed., p. 305, par. 28) the author says: "Thus, a deed may be delivered to the gran- tee himself, or it may be delivered to a stranger unknown to the person for whose benefit it is made, if so intended by the mak- er; and this may be an effectual delivery the moment it is assented to by the grantee, even though the grantor may in the mean time have deceased." See authorities cited in note. In Devlin on Deeds (volume 1, § 202) the au- thor holds the doctrine of delivery of a deed to be one of intention: "As no particular form of delivery is reqiured, the question whether there was a delivery of a deed or not, so as to pass title, must in a great measm-e, where It is not clear that an actual delivery has been efl!ected, depend upon the peculiar circumstan- ces of each particular case. The question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed. 'The doc- trine seems to be settled beyond a reasonable doubt,' remarks Justice Atwater, 'that where a party executes and acknowledges a deed, and afterwards, eitlier by acts or words, ex- presses his will that the same is for the use of the grantee, especially where the assent of the grantee appears to the transaction, it shall be stifficient to convey the estate, though the deed remains in the hands of the grantor. * * * The main thing which the law looks at is whether the grantor indicates his will DELIVERY. 107 that the instrument should pass into the pos- session of the grantee; and, if that will is manifest, then the convoj-ance Inures as a valid grant, although, as above stated, the deed never comes into the hands of the gran- tee.' A deed does not become operative until It is delivered with the intent that it shall be- come effective as a convejance. Whether such intent actually existed is a question of fact to be determined by the circumstances of the case, and cannot, in the majority of in- stances, be declared as a matter of law. A deed was held complete and valid where it had been prepared for execution, read, signed, and aclinowledged before a proper officer, not- withstanding tlie testimony of the witnesses present at its execution that there was no formal delivery, and the fact that the deed, after the grantor's death, was found among his private papers in his desk." In Doe dem. Garnons v. Knight, 11 E. C. L. 032, Bayley, J., holds that "where a party to an instrument seals it, and declares, in the presence of a witness, that he delivers it as his deed, but Icoi^'ps it in liis own possession, and there is nothing to qualify that, or to show that the executing party did not in- tend it to operate immediately, except the keeping of the deed in his hands, it is a valid and effectual deed; and delivery to the party who is to take by the deed, or to any per- son for his use, is not essential;" and cites a gi'oat number of cases in support of this doctrine. ^^ In Wheelwright v. Wheelwright, 2 Mass. 447, in a case very similar to the one at bar, Parsons, C. J., delivering the opinion of the court, holds that "a deed signed, sealed, de- livered, and acknowledged, which is commit- ted to a third person, as the deed of the grantor, to be delivered over to the grantee on a future event, is the deed of the grantor presently; and the third person is a trustee of it for the grantee." In Woodward v. Camp, 22 Conn. 459, 460, Waite, J., speaking of what constitutes a valid delivery of a deed, says: "And, in or- der to constitute a valid delivery, it is not necessary that it should be delivered per- sonally to the grantee. It will be sufficient if delivered to some third person for the use of the grantee, although the latter was not present at the time, had no knowledge of the existence of the deed, and never gave any authority to the person receiving it to act in his behalf. Merrills v. Swift, IS Conn. 257. And if a deed be delivered to a third person, to be by him kept, during the life of the grantor, subject to his order, and at his death, if not previously recalled, to be delivered over to the grantee, and the grantor die without having recalled the deed, such delivery will become effectual, and the title of the grantee consummated. In the death of the grantor. Belden v. Carter, 4 Day, GG. According to these authorities, had the deed, in the present case, been delivered to some third person, to have been kept during the life of Mi-s. Camp, and then delivered to the grantee, such deliv- ery, upon her death, would have become per- fected, and the title would have vested in him." In Farrar v. Bridges, 5 Humph. 411, the court say: "A formal, ceremonious deliv- ery of a deed Is not essential to its validity. If no condition be annexed, if nothing remains to be performed in order to give effoct to the instrument, its signing, sealing, and attesta- tion as a valid instrument between the par- ties will make it complete and effectual, al- though the insti-ument may be left in the possession of the bargainor or grantor." See authortties cited. In Thatcher v. St. Andrew's Church, 37 Mich. 2G'J, speaking of what constitutes the delivers' of a deed, the court say: "The act of delivery is not, neccs.sarily, a transfer of the possession of the instrument to the gran- tee, and an acceptance by him; but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction, by a surrender of the instrument to the grantee, or to some third person for his use and bene- fit. The whole object of a delivery is to in- dicate an intent upon the part of the grantor to give effect to the instrument. The deed may be delivered to the grantee, or to a stranger unknown to the person for whose benefit it is made; and it has been held that such was a good delivery, when assented to by the grantee after the death of the gran- tor." See authorities cited. In McLure v. Colclough, 17 Ala. 9G, the court say, speaking of what constitutes de- livery: "Then, although there was no deliv- ery by the hand, there was enough to con- stitute a good delivery in law. This may be accomplished by mere words, or by such words and actions as indicate a clear inten- tion that the deed shall be considered as ex- ecuted, as when a party to an insfrumeni seals it, and declares in presence of a wit- ness that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or to show that the execut- ing party did not intend it to operate imme- diately, except the keeping of the deed in his hands, it is a vahd and effectual deed; and actual delivery to the party who is to take by the deed, or to any person for his use, is not essential. Doe dem. Garnons v. Knight, 5 Barn. & C. 671." In Belden v. Carter, 4 Day, GG, a Connecti- cut case, depending on this statement of facts: "Delivery of deed. When takes effect. A grantor, having signed, sealed, and acknowl- edged a deed, took it up, in the absence of the grantee, and said to another: 'Take this deed, and keep it. If I never call for it, de- liver it to B. after my death. If I call for it, deliver it to me.' The party then took the deed, and the grantor d>iug soon afterwards, and never having called for it, it was deliv- ered to the grantee." Upon these facts the court say and hold: "The grantor delivered 108 co:n'tracts under seal. the deed to Wright with a reservation of a power to countermand it, but this makes no difiference; for it was in the nature of a tes- tamentary disposition of real estate, and was revocable by the grantor during his life, with- out an express reservation of that power. The case, then, stands upon the same footing as if there had been no reservation of a pow- er to countermand the deed. It was a de- liveiT of a writing as a deed to the use of the grantee, to take effect at the death of the grantor, deposited in the hands of a third per- son to hold till that event happened, and then to deliver it to the grantee. The legal opera- tion of this delivery is that it became the deed of the grantor presently; that Wright held it as a trustee for the use of the grantee; that the title became consummate in the grantee by the death of the grantor; and that the deed took effect, by relation, from the time of the first delivery." In Newton v. Bealer, 41 Iowa, 334, in a case nearly on all fours with the case at bar, Day, J., delivering the opinion of the court, on page 339, says: "Where one who has the mental power to alter his intention, and the physical power to destroy a deed in his pos- session, dies without doing either, there is, it seems to us, but little reason for saying that his deed shall be inoperative, simply be- cause, during life, he might have done that which he did not do. It is much more con- sonant with reason to determine the effect of the deed by the intention existing up to the time of death than to refuse to give it that effect because the intention might have been changed. Applying this doctrine to the deed in question, there can be no doubt that it should be sustained. The deceased, as he frequently declared, had made all the provi- sions for his ocher children that he intended to make. When within a veiy few days of his death, and evidently, as appears, contem- plating approaching dissolution, he says that he has his property all fixed, and points to the chest in which the deed would be found, which, as he supposed, had the effect to fix his property so that there would be no 'fuss- ing' about it when he was gone. He thus manifested an unequivocal intention, within a very short time of his death, to have this deed operate as a disposition of his property; and any construction of tlie law which ig- nores this intention, and defeats this purpose, prefers shadow to substance." See cases cited. In Hathaway v. Payne, 34 N. Y. 92, a case wherein the facts are as nearly like the facts in the case at bar as usually happens, the court hold that, "where a deed is to be de- livered to the grantee on the death of the grantor, the title, by relation, passes at the time the deed was left for delivery." Pot- ter, J., delivered the opinion in this case, and after viewing at great length the facts, in stating the law and citing the authorities, says: "Looking to the language of the agree- ment itself for the purpose and intent of this conveyance, it left no condition to be per- formed before delivery. It required nothing but the lapse of time, to wit, the death of both gi-antors, when Herrendeen, the agent, trustee, or depositary of the deed, (by what- ever name he may be called,) by mutual di- rection of the parties, not alone that of the grantor, who alone could not revoke a mu- tual agreement, immediately to deliver it, as a good and valid convej-ance of all the lands therein contained. If we look at the intent of the parties to the deed, as manifested by their acts, indopondeut of the language of their agreement, — the one granting, the other accepting the grant of, this part of the same premises, — it is equally apparent that the par- ties intended the first deed as a present con- veyance. In Ruggles v. Lawson, 13 Johns. 2S5, A. executed a deed of lands, in consid- t eration of natural love and affection, to his two sons, and delivered it to C, to be deliv- ered to his sons in case A. should die with- out making a will; and, A. having died with- out a will, C. delivered the deed to the sons. It was held that this was a valid deed, and took effect from the first delivery; that this was not an escrow. In Tooley v. Dibble, 2 Hill, G41, a father signed and scaled a deed purporting to convey to his son a farm, placing the deed in the hands of B., with in- sti-uctions to deliver it after the father's death, but not before, imless both parties called for it; and after the father died B. delivered the deed accordingly. It was held that the title of the son took effect, by rela- tion, from the time the deed was left with B., and that the son's quitclaim, executed inter- mediate the leaving the deed with B., and the father's death, though importing a mere con- veyance of the son's 'right in expectancy' in the land, would pass his title. The cases of Goodell V. Pierce, Id. 659, and Himter v. Hunter, 17 Barb. 25, are but confirmations of this view of the title taking effect from the first delivery of the deed. In the case of Belden v. Carter, reported in 4 Day, G6, a deed was delivered to a third person to keep, and, if not called for, to deliver it after the death of the grantor. It was held that by legal operation it became the deed of the grantor presently, and that the depositary held it as a trustee for the use of the grantee, and that the title becarne consummate in the grantee by the death of the grantor, and the deed took effect, by relation, from the time of the first delivery. In the case of Wheelwright V. Wheelwright, 2 Mass. 447, a distinction is made which I regard as sound, and which I think has not been questioned since, that applies to this case. It was held that a deed, signed, sealed, delivered, and acknowledged, which is committed to a third person as the deed of the grantor, to be delivered over to the grantee on a future event, is the deed of the grantor presently, and the third per- son is a trustee of it for the grantee. But if it be delivered to the third person as the writing or escrow of the grantor, to be deliv- DELIVERY. orod on some future event, it is not the g:i'an- tor's deed until the second delivery. That is, its being a pivseut deed depends upon the fact whether it was dclivored as an escrow. The cases can be multiplied, each varying from every other by some nice shade of dif- ference, upon the que.'^tion whether, in the present case, the deed was an escrow in the hands of the depositary, or whether the de- positary was made the trustee of the grantor. In the former case a second delivery is gen- erally required before the title passes; in the latter, the title passes at the instant of deliv- ering the deed to the deijositai-y. This, I think, is the true distinction. In the case at bar there was no direction by the grantors that the deed was left as an escrow, and it presents no evidence of intent on the part of the grantors to make this deed an escrow. There is no condition mentioned in the agree- ment, to be performed before delivery, which In law would create it an escrow; and pre- sumptions arising from the language of the agreement, being taken ni)nt 14L The covenantee in such cases may have the ben- efit of the contract but subject to the condi- 114 CONTRACTS UNDER SEi^L. tions and provisos in the deed. These obliga- tions frequently take the form of bonds, which is only another method of forming a contract, in which a party binds himself as if he had made a contract to perform; a consid- eration being necessai-ily implied from the solemnity of the kistniment. The considera- tion of a sealed instrument may be inquired into; it may be shown not to have been paid, (Bo wen v. Bell, 20 Johns. 338,) or to be different from that expressed, — Jordan v. White, 20 Minn. 99, (Gil. 77;) McCrea v. Fur- mort, 16 Wend. 460.— or as to a mortgage that there is no doubt to secure, (Wearse v. Peirce, 24 Pick. 144,) etc.; but, except for fraud or Illegality, the consideration impUod from the seal cannot be impeached for the pui-pose of invalidating the instrument or de- stroying its character as a specialty. It is true that equity will not lend its auxiliary remedies to aid in the enforcement of a con- tract which is inequitable, or is not supported by a substantial consideration, but at the same time it will not on such grounds inter- fere to set it aside. But no reason appears why equity might not have decreed specific performance in this case, (had the land not been sold,) because the substantial and mer- itorious consideration required by the court In such cases would consist in that stipulated in the instrument as the condition of a con- veyance, performance of which by the plain- tiff would have been exacted as a prerequisite to relief, so as to secure to defendant mu- tuality in the remedy, and all his rights under the contract. The inquiry would not, in such case, be directed to the constructive consid- eration evidenced by the seal, for a mere nominal consideration would have supported defendant's offer or promise upon the pre- scribed conditions. Leake, Gont 17, 18; Rail- road V. Babcock, 6 Mete. (Mass.) 353; Yard V. Patton, 13 Pa. St 285; Candor's Appeal, 27 Pa. St. 119. If, then, defendant's promise was irrevoca- ble within the time limited, plaintiff might certainly seek his remedy for damages, upon the facts alleged in the pleadings, upon show- ing performance or tender thereof on his part. There is a growing tendency to abro- gate the distinction between sealed and un- s€?alod instruments; in some states by legis- lation, in others to a limited extent by usage or judicial recognition. State v. Young, 23 Minn. 557; 1 Pars. Cont. *429. But tlie sig- nificance of the seal as importing a considera- tion is everywhere still recognized, except as affected by legislation on the subject. It has certainly never been questioned by this court In Pennsylvania the courts allow a party, as an equitable defense in actions upon seal- ed instruments, to show a failure to receive the consideration contracted for, where an actual valuable consideration was intended to pass, and furnished the motive for enter- ing into the contract. Candor's Appeal, 27 Pa. St. 119; Yard v. Patton, supra. But whatever the rule as to equitable defenses and counter-claims under our system of prac- tice may be held to be in the case of sealed instruments, it has no application, we think, to a case like this, where fuU effect must be given to the seal. Under the civil law the rule is that a party making an offer, and granting time to another in which to accept it, is not at liberty to withdraw it within the appointed time, it being deemed inequita- ble to disappoint expectations raised by such offer, and leave the party without remedy. Xhe co mmon law, as we have^seen^ though requiring a consideration, issatisfi^d with_the v ^den c g thereof s'ignmea Dyri rsftair~Railroad V. BarGett, supra. The same principle applies to a release under seal, which is conclusive though disclosing on its face a consideration otherwise insufficient Staples v. Welling- ton, 62 Me. 9; Wing v. Chase, 35 Me. 260. These considerations are decisive of the case, and the order denying a new trial must be reversed. STATUTE OF FRAUDS. 116 THOMPSON V. BLANCHARD.i (3 N. Y. 335.) Court of Appeals of New York. April, 1850. N. HiU, Jr., for appellant S. Stevens, for respondent. GAllDINER, J. The undertaking of the appt'llaut in this case was drawn with refer- ence to, and is In precise conformity witti, the requirements of section 335 of the Code. In this we all agree. It is a necessary im- plication from the statute, that an undertak- ing thus executed shall be effectual to svis- tain an appeal and an action in beliulf of the appellee, if the judgment appealed should be alhrmed in whole or in part. The legisla- ture, however, have not left the matter to implication. They have enacted that "when an appeal shall be perfected as provided by the 335tli section, it shall stay all proceed- ings in the court below upon the judgment appealed from, or the matter embraced there- in." Section 339. It is objected, notwithstanding, that the in- strument is nudum pactum, not because there is no consideration in fact, but because none is expressed in the writing. The answer is, that the statute required an undertaking in writing with certain prescribed stipulations, and nothing else. An undertaking is a prom- ise. Bouv. Law Diet It may be made with or without consideration. If the prom- ise was in writing, the consideration need not be expressed, it might be proved in all cases by parol. The common law was sat- isfied if there was a consideration in fact to sustain the undertaking. Neither before nor since the statute of frauds, has it ever been hold that an undertalcing, or promise, ex vi termini, imports a consideration. In Wain V. Wariters, 5 East 10, luider the English statute of frauds, it was for the first time decided that the word agreement implied a consideration. But that case proceeded upon the dLstinction between an agreement and an luidortaking. Lord Ellenborough stated the question to be, whether "agreement, in the statute, was synonymous with promise or un- dertaking, or signified a mutual contract up- on consideration." And all the judges con- curred in saying, that had the statute re- quired only that the promise should be in writing, instead of the agreement in respect to which the promise was made, their opin- ion would have been different. The legislature, in the section referred to, have said that an undertaking, to the effect proscribed, shall be effectual. We have no authority to add other conditions. If It be said that such an instrument would not be obligatory by the statute of frauds, the very obvious answer is, that the legislature of 1 Dissenting opinion of Bronson, C. J., omit- ted. 1848 had the same power to restore the com- mon law, as to this class of securities, that their predecessors had to abolish it 2d. The imdertaking prescribed by the 335th sec- tion is a statute security and not a common- law agreement Agreements which derive their obligation from the common law, and no others, are enumerated in our statute, and required to be made in writing, expressing a consideration. 2 Rev. St. 13G. The oli- jection I am considering assumes that the undertaking in question falls within one of the classes of agreements there specified. It has, however, been genei-ally supposed that the assent of more than one party was es- sential to the validity of an agi-eoment at common law. Lord Ellenborough calls it a mutual contract upon consideration. The consideration being one element of the agree- ment, must, of course, be the subject of ar- rangement between the parties before it can be expressed in writing. Accordingly where a contract has been executed by both par- ties, evidence is required, in addition, of de- livery and acceptance, or something equiva- lent, in order to show their assent to It as a perfected instrument, mutually obligatory up- on them. The necessity for this, when it is executed by one of the parties only. Ls app.ar- ent. Now the undertaking Ln question was properly prepared, executed, and filed with the clerk by the appellant,without any com- munication or arrangement with the appel- lee. Sections 343,340. The assent of the lat- ter was not necessaiy to the creation of the obligation, nor would his dissent defeat or in the slightest degree modify its effect upon his own, or the rights of the otlier party. And so we have In effect decided, in a case between these parties. 2 N. Y. 562. The only consideration that can be imagined, for the imdertaking of the defendant and his sureties, is the stay of proceedings upon, and the right to review the judgment obtained by the plaintiff. But this delay and privi- lege is the act of the law, against the wish- es and in spite of the opposition of the re- spondent What possible application, there- fore, has the statute designed to prevent frauds and perjunes in reference to common- law contracts, to an undertaking, the con- tents and legal effect of which are written on the face of the statute? What fraud is to be suppn^ssed, or perjury avoided, by making this appolhint certify, under his signature, to a consideration which, if it exist at all, did not arise from the agreement of parties, but from a law which this court and all others, ai-e bound judicially to notice? At most it would be but cumulative evidence of the pro- visions of a stxitiite. We think, for the reasons assigned, the un- dertaking sufficient and the appeal well brought. 116 STATUTE OF FRAUDS. i;^V STONE T. DENNISON.i / (13 Pick. 1.) (p Lj- Supreme Judicial Court of Massachusetts. Sept Term, 1S32. At the trial, before Wilde, J., the plaintiff proved that he had been in the service of the defendant from October, ISIS, to October, 1S2S, when he became twenty-one years of age; and he introduced evidence tending to show that his services were worth more tlian the support and education f\imished him by the defendant. Evidence was offered by the defendant tending to show the contrary, and that the agreement was a reasonable one. The defendant contended that he was not liable, because at the time when the plaintiff was fourteen years of age, his father being dead, George Eels was duly appointed his guardian, and it was agreed between the plaintiff, the defendant and the guardian that the plaintiff should continue in the service of the defendant, until he should arrive at the age of twenty-one, for his board, clothing and education, and the defendant had performed the contract on his part The plaintiff objected to the admission of evidence to prove these allegations: (1) Because the supposed contract was void by the statute of frauds, it not being in writ- ing. (2) Because, the plaintiff having no prop- erty and his mother being living at the time, the appointment of the guardian was void; or, at least, if valid, it gave the guardian no power to bind the plaintiff by the contract stated; and the plaintiff could not be bound by any assent given by himself to the agree- ment, during his infancy. But the judge admitted the evidence, and instructed the jury that if the plaintiff en- tered into thir agreement as contended for by the defendant, and entered into the service of the defendant in pursuance of the same, and continued in it during all the time agreed upon, he could not waive the contract and go upon a quantum meruit, unless the contract was obtained by unfair means, and so was fraudulent on the part of the defendant; and that, if the con.Ti^ct was so unreasonable as to show that the plaintiff was overreached, that would be evidence of fraud and would I'endcr the contract null and void. The jury found a verdict for the defend- ant, and the plaintiff moved for a new trial. If the foregoing opinions and instructions were erroneous, a new trial was to be grant- ed; otherwise judgment was to be rendered on the verdict. Mr. Wells, for plaintiff. Bates & Dewey, for defendant. SHAW, C. J. Several points were left to the jury in the present case, which may be considered as settled by their verdict. 1 Irrelevant parts omitted. By the report it appoars that after the plaintiff aiTived at the age of fourteen years, having then lived several years with the de- fendant, it was agreed between the plaintiff and his guardian on the one side, and the de- fendant on the other, that the plaintiff should continue in the sei-vice of the defendant urftil he should arrive at the age of twenty-one, for his board, clothing and education. By the finding of the ju'y, under the instructions giv- en to them by the court, it must be taken to have been settled, that the contract was not obtained by any unfair means, or fraudulent, on the part of the defendant, and that it was not unequal, so as to show that the plaintiff was overreached. The case then is one of a minor over four- teen years of age, entering into an agreement with a person, for labor and service to be fur- nished on one side, and subsistence, clothing and education on the other, an agreement in which the minor was not overreached, which was not so unreasonable as to raise any sus- picion of fi-aud, and which was assented to and sanctioned by the guardian of the minor. This agreement is fully executed on both sides. The labor and services are performed by the minor, and the stipulated compensa- tion is furnished by his employer. And the- question is, whether the plaintiff, notwith- standing such agreement, can maintain a quantum meruit for his services, merely by showing that in the event which has happen- ed his services were worth more than the amount of the stipulated compensation; and we think he cannot. The first point taken by the plaintiff is that the evidence of the agreement ought not to have been admitted, because the agreement, not being to be performed within a year, and not being in writing, was void by the stat- ute of fi-auds. St 17SS, c. 16, § 1. But we think this objection is answered by the consideration that here the contract has been com^jletely performed on both sides. The defendant is not seeking to enforce this agreement as an executory contract, but sim- ply to show that the plaintiff is not entitled to recover upon a quantum meiniit as upon an implied promise. But the statute does not make such a contract void. The provision" is, tfiaf" no" 'action stall be brought, whereby to charge any person upon any agreement, which is not to be performed within the space of one year, unless the agreement shall be in writing. The statute prescribes the species of evidence necessary to enforce the execu- tion of such a contract. But where the con- tract has been in fact performed, the rights, duties, and obligations of the parties result- ing from such performance stand unaffected by the statute. In the case of Boydell v. Drummond, 11 East, 142, a case was put in the argument of goods sold and delivered at a certain price, by parol, upon a credit of thirteen months. There, as a part of the contract was the pay ment of the price, which was not to be per- EXECUTED CONTRACTS. 117 formed within the year, a quustion is made, whether by force of the statute the purchaser is exempted from the obligation of the agree- ment as to the stipulated price, so as to leave it open to the jury to give the value of the goods only, as upon an implied contract. "In that case," said Lord EUenborough, "the de- livery of the goods, which is supposed to be made within the year, would be a complete execution of the contract on the one part; and the question of consideration only would be reserved to a future period." If a performance upon one side would avoid the operation of the statute, a fortiori would the entire and complete performance on both sides have that effect. Take the common case of a laborer entering into a contract with his employer towards the close of a year, for an- other year's service, upon certain stipulated terms. Should either party. refuse to perfonn, the statute would prevent either party from bringing any action whereby to charge the other upon such contract. But It would be a very different question were the contract ful- filled upon both sides, by the performance of the services on the one part and the payment of money on account, from time to time, on the other, equal to the amount of the stipu- lat-^d wages. In case of the rise of wages within the year, and *he consequent increased value of the sen- ices, could the laborer bring a quantum meruit, and recover more; or in case of the fall of labor and the diminished value of the services, could the employer bring money had and received and recover back part of the money advanced, on the ground that by the statute of frauds the orig- iiial contract could not liave been enforced? Such, we think, is not the true corustructioa j-t the statute. ^Ve are of the opinion that it has no application to executed contracts, and that the evidence of this contracr was rigTitly ad- mitted- 118 STATUTE or FRAUDS. .< [s ' Oct., BELLOWS V. SOWLES. (57 Vt. 164.) Supreme Court of Vermont. Montpelier. 1SS4. Assumpsit. Heard on demurrer to the declaration, September Term,lSS3, Frank- lin County, RoYCE, Ch. J., presiding. De- murrer overniled. The declaration alleged in substance: That the plaintiff was a relative and heir-at-law of Hiram Bellows, deceased ; *that by the terms "IGo of said Bellows' will, presented to the Probate Court for allowance, no pro- vision was made for the plaintiff; that the plaintiff "claimed and insisted tliat he was left out of said will, and that no pro- vision ♦ ♦ ♦ was made for the plaintiff thrt'Ugh undue influence had and used jpon said Bellows by said defendant and nis wife, Maggie Sowles, and that said will was void, and should not be approved; that he had employed counsel to test the validity of said will before the Probate Court; that similar claims were made by other heirs"; "and whereas the said de- fendant being then and there the executor named in said will, and being largely in- terested pecuniarily in said estate as leg- atee and the husband of the princijial leg- atee under said will, and well knowing the claim of the plaintiff, and that he had employed counsel as aforesaid, and that otlier heirs were then and there making similar claims, and being anxious to have said will sustained, had also employed counsel for that purpose; and it was theu and there expected by the parties that a contest would be had upon the approval of said will, which would involve the ex- penditure of a large amount of money, and hinder and delay the settlement of said Bellows' estate, and the receipt by the said defendant and his said wife of their said legacies"; that the plaintiff met the defendant by appointment at defendant's house, and that the matters relating to the will were talked over; that"the plain- tiff, at the special instance and request of the said defendant, would see one Char- lotte Law, who was one of the heirs of said Bellows, and who was then and there intending to contest the validity of said will, and use his influence to have her allow said will to be approved, and that the plaintiff forbear to contest the ap- proval of Faid will of said Bellows, and allow the same to be approved by the Probate Court aforesaid, and would not appeal from the decision of said court, he, th2 said defendant, undertook, and then and there faithfully promised to pay the plaintiff the sum of $5,000, whenever, after twenty days had elapsed from the date of the approval of said will by said Probate Court, he should be thereunto requested." • * * "And the plaintiff avers, that, con- fiding in the promise and undertaking of the said defendant so made as aforesaid, afterwards, to wit, on the day and year aforesaid, he did see said Charlotte Law, and did use his influence with her to *166 allow said will to be ap*proved, and did forbear to contest the approval of said will of said Bellows, and did al- low the same to be approved by said Pro- bate Court, and did not appeal from said approval"; • • • thatsaid will was duly approved on the 7th day of December, INTO; that no appeal was taken; that the twenty days has ela[)sed; and that de- fendant, though requested, has wholly neglected and refused to pay the said $5,000, &c. There was a second count, sub- stantially like the first, alleging, that the plaintiff was heir-at-law of said Bellows; that he received nothing under the will ; that the will was made as it was, and plaintiff left out, "through undue influence and by procurement of the said defendant and his said wife, and that said will was void"; that he had arranged to contest the validity of the will; that this was known to the defendant; that it was "ex- pected by the parties that long and ex- pensive litigation would ensue, which would delay the settlement of said Bel- lows' estate, and prevent the said defend- ant and his said wife from receiving the large sums of money which they expected from said estate, as they otherwise would"; that the defendant "being pe- cuniarily interested in said estate to a large amount as legatee, as husband of the largest legatee under the will,"&c. ; that defendant promised to pay plaintiff the sum of $5,000 if he would forbear to contest the will; that he did forbear, in consideration of the promise, &c., &c. The common counts followed. Geo. A. Ballard, Fartlngton & Post, Wil- son & Hall, and Noble & Smith, for plain- tiff. Defendant pro se ( with him H, S. Royce and L. P. Poland). POWERS, J. Counsel for the defendant have demurred to the declaration in this case upon two grounds; first, that the consideration alleged is insufficient; sec- ondly, that the promise not being in writ- ing comes within, and is therefore not en- forceable under, the Statute of Frauds. It has been so often held that forbear- ance of a legal right affords a sufficient consideration upon which to found a valid contract, and that the consideration re- quired by the Statute of Frauds does not differ from that required by the common law, it does not appear to us to be neces- sary to review the authorities, or discuss the principle. As to the second point urged in behalf of the defendant, this case pre.sents greater difficulties. Although the Statute of Frauds was enacted two centuries ago, and even then was little more than a re-enactment of the pre-exist- ing common law, and though cases have continually arisen under it, both in Eng- land and America, yet so confusing and at times inconsistent are the decisions, that its considei-ation is always attended with difficulty and embarrassment. The best understanding of the statute is derived from the language itself, viewed in the light of the authorities which seem to us to interpret its meaning as best to attain its object. That clause of the stat- ute under which this case falls, reads: "No action at law or in ecjuity shall be brought * * * upon a special promise of an executor or administrator to answer damages out of his own estate." This special promise referred to is, in PROMISE BY EXECUTOR OR ADMINISTRATOR. 119 short, any actual promiso made by an ex- ecutor or administrator, in distinction from promiHes implied bj' law, which are hold not within tli«' statute. Tlie promiHe must be " to answer dam- ages out of ills o wn estate. " Tl)is pJirtise- olo^y clearly implies an obligation, duty, or liability on the part of the testator's estate, for which the executor promises to pay damages out of his own estate. The statute, then, was enacted to pre- vent executors *or administrators *170 from beinj;- fraudulently held for the debts or liabilities of the estates upon which they were called to administer. In this view of the case, this clause of the Btatnte is closely allied, if not identical in principle, with the followinp: clauKe. name- ly : "No action, etc., upon a special prom- ise to answer for the debt, default or mis- doinj^s of another." And so Jud^^eUoYCK, in delivering the opinion of the court in Harrington v. Rich, 6 Vt. GGG. dtH.'lares tlu'se two classes of uudertaUings to bo "very nearly allied," and considers them together. This seems to as to be the true idea of this clause of the statute:— that the undertaking contemplated by it, like that contemplated by the next clause, is in the nature of a guaranty; and that reasoning ap|)licable to the latteris equal- b' applicable to the former. We believe this view to be well support- ed by the authorities. Browne, in his work on the Statute of Frauds, p. loO, says: "In the ft)nrth section of the Statute of Frauds, special promises of executors and administrator to answer damages out of their own estates appear to be spoken of as on« class of that large body of contracts known as guaranties. " And soon page 184, he interprets "to answer damages" as equivalent to pay debts of the decedent. This seems to be the con- struction given to the statute by Chief Justice Redfikli), in his work on Wills. Vol. II. p. 290, et seq. The Revised Statutes of New York, Vol. II. p. 113, have improved upon the phrase- ology of the old statute as we have adopt- ed it. by adding, or to pay the debts of the testator or intestate out of his own estate. If we are correct in this view of the re- lation between these twoclauscs, the solu- tion of the question presented by this case is comparatively easy. It has been held in this State, that when the contract is founded upon a new and distinct consideration moving between the parties, the undertaking is original and independent, and not within the statute. Templeton v. Bascom, *33 Vt. 132; Cross v. Richardson. 30 nTl Vt. G41; Lampson v. Hobart. 28 Vt. 097. Whether or not it would be safe to announce this as a general rule of uni- versal application, it is a principle of law well fortified by authority, that where the principal or immediate object of the promisor is not to pay the debt of an- other, but to subserve some jturpose ot his own, the promise is original and inde- pendent, and not within the statute. Branilt Sur. 72; 3 Par. Cont. 24; Rob. Fr. 232; Fmerson V. Slater, 22 How. 28. And this seems to be the real ground of the de- cisions above cited in the 28th and 30th Vt., in which the c(jurt seems to blend the two rules just laid down. PiKuroiNT, J., in delivrring the opinion of the court in Cross v. Richardson, sujn-a, says: "The consideration must l)e not only suflicient to supjtort the promise, but of such a nature as to take the promise out of the statute; and that requisite, we think, is to be found in the fact that it ojicrates to theadvantageof the promisor, and places him under a pecuniary obliga- ticjn to the promisee, entirely independent of the original debt." Ai)ply this rule to this case. Here the main pur|)(jsej)f Jiiiis promise wasTllOtJTg^ aiiisweT'~naTiTages"7JL)r t he" tesUTlT OTrVouT of -trlS"TJWir^STUTerT5Trr^\^as^ -eerrc — Eome pill i)0.>e~of Jur^ c lefeiu lant. ~ Tt re c o nBidc' rarrrm did Iapt__aiEL(rL the es- t ^te, bjT f ^vas'a mat t er p urel^^_x^ersonaJI£Q- ^t h e jCjei tTTTl an t TTeTT^TncMv^vvasnoTTabi 1 i- ty or obligaTton on the part of the estate to be answered for in damages. It could make no difference to the executor of that estate whether it was to be divided ac- cording to the will, or by the law of de- scent. If the subject matter of this con- tract had been something entirely foreign to this estate, no one would maintain that the defendant Avas not bound by it, because he happened to be named executor in this will, ilere the subject matter of the con- tract was connected with the estate, but in such a way that it was practically im- material to the estate which way the question was decided. There exists, •172 therefore, in *this case, no sufficient, actual, primary liabilitj' to which this promise could be collateral. This seems to us to be the fairest interpretation of the law. The statute was passed for the benelit of executors and administrators; but it might be said of it, as has been said of the protection afforded to an infant by the law of contracts, that "it is a shield to protect, not a sword to destroy." If this class of contracts was allowed to be avoided under it, instead of being a pre- vention of frauds, it would become a pow- erful instrument for fraud. As in this case, the plaintiff would be deprived of his legal right to contest the will, by a party who has reaped all the l>enefit of the transac- tion, and is shielded from resi)onsibility by a technicality. We do not believe this was the result contemplated by the stat- ute. The judgment of the Connty Court over- ruling the demurrer and adjudging the declaration suflieient is aflirmed, and case remanded with leave to the defendant to replead on the usual terms. 120 A LARSON V. JENSEN. (19 N. W. 130, 53 Mich. 427.) Supreme Court of Michigan. April 23, Error to Manistee. L. W. Fowler, for plaintiff. L. G. Ruther- ford, for defendant and appellant / ISSi. CHAMPLIN, J. The plaintiff claimed that he entered into an agreement with defendant by which he was to furnish and deliver to one John Labonta an unlimited amount of mer- chandise, as he, Labont:!, might call for, or order by mail, or otherwise; and defendant was to pay plaintiff for all the goods so or- dered or called for by Labonta; that in pur- suance of that agreement plaintiff dehver- ed goods to Labonta, from time to time, at the request of defendant, and, at the time this action was brought, plaintiff claimed a balajice due him of about $400. On the trial the plaintiff gave evidence tending to prove the contract as alleged in the declaration. The plaintiff was the only witness who testified to the contract, and his statement of it was denied by the defendant, who testified that he told plaintiff that Labonta, his son-in-law, was intending to engage in trade in a small way; that he had a little money and that he would help him a little; and asked plaintiff if he could not let Labonta have some goods, and he said he would. The defendant contends that the contract, as set out in the plaintiff's declaration, is void as being against the statute of frauds, for the reason that the promise of defeudant is col- lateral, and is only to pay the debt or de- fault of Labonta. This is a mistake. The promise and undertaking of defendant, as al- leged in the declaration, is an original promise, and rests upon a sufficient consideration. The goods were to be furnished to Labonta, it is ti-ue, but upon the express agreement that defendant should pay for them. Under the declaration, the entire credit was originally given to defendant. The defendant also insists that, under the evidence, which is all returned in the record, it was the duty of the trial judge to have taken the case from the jury, and decide the case as matter of law in favor of defendant. But this the trial judge could not do, if there was any evidence tending to prove the plain- tiff's claim. The testimony of the plaintiff, however inconsistent with itself, tended, "in some parts thereof, to sustain the declaration, and the effect and weight to be given to it was solely a question for the jury, and it would have been error in the court to have taken the case from them. The court instructed the jury that the bur- den of proof was upon the plaintiff to show by a fair preponderance of evidence of the ex- istence of the contract, and that in pursuance of such contract he delivered the goods, rely- ing entirely upon the promise of Jensen to pay the debt And if the jury was satisfied by a STATUTE OF FRAUDS. jr/ fair preponderance of evidence that the bar- gain was made as plaintiff claimed, and that he relied entirely upon it and never looked to Labonta for his pay, then he was entitled to recover; otherwise he was not entitled to recover. But if the jury believed the theory 0^ defendant that no contract of this kind ■was ever made, and that he never agreed to pay any sum whatever absolutely, he is not liable and they should find no cause of action. The circuit judge placed the case very fully and fairly before the jury, and at the conclu- sion instructed them as follows: "The only question for you to determine is, 'Was this bargain made between the plaintiff and de- fendant, whereby goods were to be delivered to Labonta upon the credit of the defendant, and did the plaintiff, reljing upon it, deliver the goods solely upon the credit of this man Jensen, and looking to no one else at all for his pay?' That is the question. If you solve that question in favor of the plaintiff, then he is entitled to a verdict; if you solve it against him, then he is not entitled to a verdict. The plaintiff must have looked to the defendant Jensen, from the beginning to the end of the transaction." There is no error in the charge of the court We do not think it is open to the criticism that "the charge, as given, assumed that the evidence made out an absolute prom- ise to pay." On the contrary, it was the very question he submitted to the jury, to be de- termined by them from all the evidence in the case. The plaintiff testified: "Last August Mr. Jensen came up to me, in Manistee, and made aiTangements to furnish his son-in-law goods when he called for them. The object that Mr. Jensen wanted goods for his son-in-law was be- cause he was a roving character, and he would see them paid for. I should deliver the goods to John Labonta, and he would see them paid. He stated the object in wanting the goods: His son-in-law was a sailor by profession, and he wanted to settle him down. He wanted his daughter to run the store, and his son- in-law to work around the mills, if the store didn't require his services. And I agreed to do so." K this testimony of the plaintiff was foimd by the jury to be true, the agreement was not within the statute of frauds. The statute does not prevent a person from buying goods on his own credit, to be delivered to another, un- less in writing. In such case the important question is, to whom was the credit given? And this question the court fairly submitted to the jury. And the fact that the goods ai-e charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit Foster v. Persch, 68 N. Y. 400; Huzen v. Bearden, 4 Sneed, 48; Walker v. Richard-s, 41 N. H. 388; Swift v. Pierce, 13 AUen, 136; BaiTett V. McHugh, 128 Mass. 165; Champion V. Doty, 31 Wis. 190; Ruggles v. Gatton, 50 111. 412. The plaintiff charged the goods de- livered as follows: "John Labonta, by order piiOMisE TO a:^swer foe debt of another. 121 of Charles Jensen." The plaintiff testified that he gave credit to the defendant when he let the goods go, and, Ln response to a ques- tion put to him on cross-examination by de- fendant's attorney, "Who did you look to for pay for those goods?" replied: "Jensen;" and that he did not look to Labunta for it. The court Instructed the jury that "tlie way the goods are charged upon the books does not exclude the parties from showing the exact fact to whom the credit waa given." While there was no error in this portion of the charge, we think the charge made upon the books is quite as consistent with the view that credit was originally given to defendant as to Labonta; and the testimony received upon the subject as to whom credit was given was un- exceptionable. There are no errors In the record that call for a reversal of the judgment, and therefore it is affirmed. The other justices concurred STATUTE OF FIJAUDS. CRANE V. WHEELER. "y (51) N. W. 1033. 48 :Minn. 207.) Supreme Court of Minnesota. Jan. 25, 1S92. Appeal from district court, Mower coun- ty ; Faumrr. Judg:e. ' Petition of Henry Wheeler for allowance of a claim ap:ainst insolvents, of whom F. I. Crane was assiojnee. Judgment for petitioner. The assignee appeals. Re- versed. Kina:sley & Shepherd, for appellant. French & Wright, for respondent. GILFILLAN.C. J. In the insolvency pro- ceedings Wheeler filed his petition, verified bj' his attorney, setting forth his claim against the insolvents. The assignee dis- allowed the claim, and the claimant ap- pealed to the district court. Upon such appeal the claim is to be tried as other civil actions. Laws 1881, c. 148. § 8. When the appeal came on for trial the assignee objected to evidence being offered to prove the claim on about this proposition, as near as we can tell from the statement of the objection in the settled case and from the brief: That the court is to hear the appeal only upon such proof of the claim as was offered before the assignee, and, if none was offered before him, then none can be received by the court. There is nothing in the statute to suggest such an idea. No trial except upon an appeal is contemplated. The claim was based upon the insolvent's guaranty of a promissory note. The facts found by the court and the evidence fully sustained the findings. Stating such facts briefly, they are: That in June, 1882, Wheeler left with.Wilkins & Smith, to loan for him, a sum of money, with instructions to make no loan except upon security of first-class real estate, and paper indorsed by good indorsers. That, contrary to such instructions, they, in said June, loaned of said money $1,500 to one Gregson, taking his note therefor, payable to said Wheeler in one year. Aft- erwards, when informed they had made Bald loan to Gregson, Wheeler stated to them that he should look to them for the money they had loaned contrary to his instructions, and they agreed to be re- Bponsible for the same, as though they had borrowed the money, and to pay the note in case Gregson made default in pay- ment; and they thereupon wrote and signed this guaranty on the note: "We hereby guaranty the collection of the within note. June 2, 1885." The note seems, up to that time, to have been in the possession of Wilkins and Smith. The question mainly argned in the case is, doe.s the guaranty come within the stat- ute 'of frauds, so as to be void because it does not express the consideration? In form, at least, it is a promise to answer for the debt or default of another. The form, however, is not decisive; for where vne leading purpose of the promise is, noli to become surety for another, not for the benefit in any way of such other, but to promote the interest, to effect some pur- pose, of the promisor, as independent of the debt or contract guarantied, as where it is to enable the guarantor to transfer the debt or contract, (Nichols v. Allen, 22 Minn. 283; Wilson y. Hentgcs, 29 Minn. 102, 12 N. W. Kep. 1.51,) or to satisfy or discharge an obligation resting on him- self, (Sheldon v. Butler, 24 Minn. .51:^,) it is. notwithstanding its form, and altliough it incidentally guaranties the debt of an- other, regarded as an original, and not a collateral, undertaking, and so not with- in the statute of frauds. This case cannot be distinguished from Sheldon v. But- ter. The insolvents had misappropriate'? Wheeler's money, and they were liable to him for it. If he could be induced to ac- cept the Gregson note, and thus ratify what they had done, it would discharge their liability. To induce him to do it they guarantied the note. Under the cir- cumstances, the guaranty, while in form a promise to answer for the default of an- other, was in fact and in substance a promise to pay and discharge their own liability if Wheeler could not collect it from Gregson. The claimant must stand on the terms and nature of the guaranty. It is a guaranty of collection,—/, p., that the note is collectible. The condition of the guarantor's liability is that the cred- itor shall be unable to collect the debt, he using due diligence. Ordinarily, in such cases, due diligence requires of the creditor to promptly bring suit, and diligently pros- ecute it to the return of an execution. There may be circumstances that will ex- cuse omission to bring suit, — as, if the prin- cipal debtor be insolvent, so that a suit against him would be fruitless; or if the guarantor should waive the use of dili- gence. The only effort which the court finds the claimant made to collect the debt fromGregs()n was that September 20, 1886, he brought an action against him, in due time recovered judgment and issued execution, which was returned unsatis- fied. The note was past due when the guaranty was made, so that there was a delay of nearly 15 months before suit was brought. No fact is found to excuse this delay. The court found that since Octo- ber 8, 188G, Gregson has been insolvent, but that, of course, would not excuse the prior delay. Whether the qijestion of due diligence in such cases be one of law or of fact, or a mixed question of law and fact, an unexplained delay of nearly 15 months in bringing suit makes a case of omission to use due diligence. Moaklev v.Riggs, 19 Johns. 69; Kies v. Tifft, 1 Cow. 98; Penni- man v. Hudson, 14 Barb. 579; Craig v. Parkiss, 40 N. Y. 181. For failure of claim- ant to show^ due diligence to collect from Gregson, or to show any excuse for omit- ting it, there must be a new trial. Order reversed. PROMISE TO ANSWER FOR DEBT OF ANOTHER. 123 / WAIT V. WAIT'S EX'R. / (28 Vt. 350.) Supreme Court of Vermont. Rutland. Feb. Term. 1856. Appeal from the decision and report of com- missioners, disallowing a part of the appellant's claim against the estate of Joseph H. Wait, de- ceased. The nature of the claim, and the facts in relation thereto, sufliciently appear in the opinion of the court. The county court, Sep- tember Term, 18m,— PiKRPOiNT, J., presiding, —rendered judgment in favor of the appellant for the amount of his claim. Excei)tions by the appellee. *351 *U. A'. Xicholson and C. L. Williams for the appellant. B. Fristne. and hJ. Edrjerion for the appellee. The opinion of the court was delivered by ISilAM, J. This is an appeal from the decis- ion of the probate court, disallowing the plain- tiff's claim against the estate of Joseph II. ^VaiL The plaintiff claims the sum of .^140,00 for his expenses in erecting a barn on premises then owned by Joseph Wait. The barn was erected at the request of Joseph Wait, under his assur- ance that by some arrangement the premises should be conveyed to the plaintiff, so that he should have the benefit of his labor and ex- penses; 01 if the premises were conveyed to an- other, that person should pay the amount e.x- pended in erecting the building. In 1847, Jo- seph Wait conveyed these premises and this barn to Joseph H. Wait, and they now consti- tute a part of his estate. The fact is found by the auditor, that soon after that conveyance, Joseph H. Wait informed the plaintiff that there was an understanding between him and Joseph Wait, that he was to pay him for building the barn, and that he would do it as soon as he could. This promise the auditor finds was re- peated on several occasions down to 1851. and that intheirlast conversation, the deceased rec- ognized the debt as due from him, and prom- ised to pay it. It is now insisted that this prom- ise to pay the plaintiff his claim is void under the statute of frauds, it not being in writing, and being a promise to pay the debt of another. The payment of this claim due the plaintiff was a part "of the consideration for which those premises were conveyed to the deceased, and was made at the request of Joseph Wait, in ful- filment of those assurances which had been given to the plaintiff. That is plainly the find- ing of the auditor, and the only reasonable con- struction that can be given to his language throughout his report. Under those circum- stances, we think, the authorities are clear that this promise is founded upon a sufficient con- sideration, and that it is to be regarded as an original and binding contract. There is no doubt that a premise to pay the debt of another, though made at the same time the credit was given to the principal debtor, will be void, un- der the statute, if not in writing. The same re- sult follows, where such a promise is subse- quently made, if the consideration of that promise is the subsis*ting liability of the *352 original debtor. The promise in those cases is collateral, and therefore void; and the promise will be deemed collateral, so long as the liability of the original debtor continues. The cases of Fish v. Hutchinson. 2 Wils. 94; Chater v. Beckett, 7 Term 11. 201, and Wain v. Warlters, 5 East 10, are illustrations of that principle. But that principle has no applica- tion to cases where the original debtor places property of any kind in the hands of a third person. "and that person promises to pay the claim of a particular creditor of the debtor. The promise in such case is an original prom- ise, and the property placed in his hands is its consideration. In this class of cases, it is im- material whether the liability of the original debtor continues or not. In the case of Farley V Cleveland, 4 Cowen 432, Savagk, Cn. J. ob- served that "when there is a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the party mak- int; the promise, the subsisting liability of the original debtor, is no objection to the recov- ery " In 1 Smith's Lead, cases 32'J. this subject is examined by the American editor, and from a review of the authorities on this question, he observes that "a promise to paj' an antecedent debt, in consideration of property placed in the haniis of the promisor by the debtor, has been held not to require a writing to give it validity, and that it seems reasonably well settled, that a verbal promise to be answerable for the ante- cedent debt of another will be valid, where it is made upon a new and independent considera- tion, although the debt itself still remain in full force; but that where the consideration grows out of the original contract, the promise will be within the statute." The cases there re- ferred to on this subject are numerous, and fully sustain this principle. The case under consideration clearly falls within the applica- tion of that doctrine. The promise by the de- fendant to pay this debt of the plaintiff is fully found by the auditor; its consideration was not the subsisting liability of Joseph Wait, neither did it arise out of the original contract, but from property placed in the defendant's hands for that purpose by the original debtor. We are satisfied that the promise of the defendant in this case, is to be regarded as an original promise founded upon a new consideration, and legally binding upon him. On the trial of this case it was insisted *353 that parol evidence was *inadmissible to show that the jjaymentof this debt was a part of the consideration for which the premises were conveyed by Joseph Wait to the deceased, as it contradicted the deed and bond which is made part of this case. The consideration of the deed is expressed to be for the sum of three thousand doll-ars. The bond was given to sup- port the grantor and his wife during their lives, and to pay specified sums in money to his three daughters, amounting to the sum of five hun- dred dollars. As between Joseph Wait and the deceased, it is possible the bond would be evidence of the extent of his claim. The object of the bond was to secure the support of the grantor and his wife, and the payment of certain sums as a family settlement of his estate. It was not intended to cover all the obligations as- sumed by the grantee. The plaintiff is not a party to the deed or bond. The object of the testimony is not to show a different obligation from that expressed in the bond, nor to vary or affect the leiral operation of the deed, but to show that the payment of this debt was a part of the three thousand dollars which is expressed to be the consideration of the deed. The execution of the bond was reducing to writing only a part of the consideration of the deed, and that part onh', which was to be rendered to the grantor. In such case, it is competent to prove an addi- tional and suppletory agreement by parol, as that the remaining part of the consideration was to be paid to the plaintiff: Bowen v. Bell 20 John. 341; Greenl. Evid. § 284. a. i$ 304; Jef- fery v Walton. 1 Starkie 267; Rockwood's case, 1 Cro. Eliz. 164. We think the testimony was admissible, and that the plaintiff is entitled to recover the amount of his claim. The judgment of the county court isaflirmed, and the case is to be certified to the probate court. 124 STATUTE OF FRAUDS. 'b ^ ^ MALLORT V. GILLETT. l^\ (21 N. Y. 412.) \ \ * ■Court of Appeals of New York. June, ISGO. Henry George T. Spencer, for appellant M. Hj-de, for respondent COMSTOCK, C. J. This case ought to be one of first impression. By the statute of frauds, all promises to answer for the debt of a third person are void tmless reduced to writing. One Haines owed the plaintiff a debt for repairs on a boat, for which the lat- ter had a lien on the chattel. In considera- tion of the relinquishment of that lien, and of forbearance to sue the original debtor, the defendant promised the plaintiffs without writing, to pay the debt at a certain future time. There is no pretense that the defend- ant's promise was given or accepted as a substitute for the original demand, or that such demand was in any manner extinguish- ed. The promise was, therefore, to answer for the existing and continuing debt of an- other, or, in the language of the books, it was a collateral promise. The consideration was perfect, but as there was no writing, the case seems to fall within the very terms of the statute. Authorities need not be cited to prove that the sufficiency of the considera- tion never takes a case out of the statute. Indeed, there can be no question imder the statute of frauds in any case, tmtil it is as- certained that there is a consideration to sustain the promise. Without that element the agreement is void before we come to the statute. A naked promise is void on general principles of law, although it be in writing. The mere existence of a past debt of a third person will not sustain an agreement to pay it, unless there be forbearance to sue, or some other new consideiution. In such a case, when we find there is a new considera- tion, we then, and not till then, reach the inquiry whether the agreement must be in writing. Such is this case. It is nothing to say that here was a new consideration. If such was not the fact, there would be no question in the case. There is sometimes danger of error creep- ing into the law through a mere misunder- standing or misuse of terms. The words "original" and "collateral" are not in the statute of frauds, but they were used at an early day — the one to mark the obligation of a principal debtor, the other that of the per- son who xmdertook to answer for such debt. This was, no doubt, an accurate use of language; but it has sometimes happened that, by losing sight of the exact ideas rep- resented in these terms, the word "original" has been used to characterize any new prom- ise to pay an antecedent debt of another person. Such promises have been called original, because they are new; and then as original undertakings are agreed not to be within the statute of frauds, so these new promises, it is often argued, are not within it If the terms of the statute wei-e adhered to, or a more discnminating use were made of words not contained in it, there would be no danger of falling into errors of this de- scription. What is a promise to answer for the "deot or default" of another person? Un- der this language, perplexing questions may arise, and many have arisen, in the courts. But some propositions are extremely plain; and one of them is, that the statute points to no distinction between a debt created at the time when the collateral engagement is made, and one having a previous existence. The requirement is, that promises to answer for the debt etc., of a third person, be in writing. The original and collateral obliga- tions may come into existence at the same time, and both be the foundation of the cred- it, or the one may exist and the other be created afterward. In either case, and equal- ly in both, the inquiry under that statute is, whether there be a debtor and a surety, and not when the relation was created. The lan- guage of the enactment is so plain that there is no room for interpretation; and its policy is equally cleai'. If A. say to B.: "If you will suffer C. to incut a debt for goods which you will now or hereafter sell and deliver to him, I will see you paid," the promise is with- in the statute. This no one ever doubted. But if A. say to B.: "If you will forbear to sue C. for six months on a debt heretofore incurred by him for goods sold and delivered to him, I will see you paid"— is not the case equally plain? So, if, in such a case, instead of forbeai"ance, there is some other sufficient consideration, for example, forgiving a part of the debt or relinquishing some security for it, the difference is still one of circiuu- stance, but not of principle. In the case first put, „the consideration of the guaranty is the original sale of the goods on the faith of it; in the other, it may be forbearance or the relinquishment of some advantage, the original debt still remaining. Looking at the comparative merit of these considera- tions, it would seem to be" the highest in the first case, for the whole debt owes its origin to the collateral promise, while in the other the debt remains as before, and only some collateral advantage is lost. But the appli- cation of the statute depends on no such test. These considerations are, all of them, sufficient, and simply sufficient, to sustain the auxiliary undertaking. But if they also dispense with a wi-iting, then, so far as 1 can see, there are no cases to which this branch of the statute of frauds can be ap- plied. Such an extreme position has not been tak- en; but it is said that the promise now in question need not be in writing, because it was new and original, and was founded on the relinquishment to the debtor of a secu- rity which the creditor held. To say that it was new and original expresses no idea of PROMISE TO ANSWER FOR DEBT OF AXOTHER. 125 any Importance. Every promise Is new and original that was never made before. An undertaliiug to answer for an old debt of a third porson certainly has no more of orig- inality than one to answer for a debt now contracted. As to the relinquishment of the lien or security, this, althougli a meritorious consideration, is, in judgment of law, no more so than any other which is sufticient to sustain a contract Forbearance to sue has the same legal merit, and so has the re- lease of a part of the debt. There is nothing so remarkable or pecvdiar about this case that it may not be included in some general proposition which involves a principle of law. Now, one of these two propositions must, I think, be true: 1. The statute of frauds never applies to a promise, the subject of which is an antecedent debt of a third person to whom it is collateral; or, 2. It applies to all such promises where the consideration moves solely between the cred- itor and original debtor and the debt still remains. If the first is true, then the prom- ise in question is valid without a writing, and so would any such promise be, without regai-d to the particular nature of the consid- ei-ation; it being necessary, of course, that there should be some sufficient consideration. If the first be not true, and the second is, then the promise in this ease is void, because it falls directly within it The first proposi- tion cannot be tme, upon the plain terms and evident policy of the statute; and no such doctrine was ever asserted. The universal tnith of the second one necessarily follows, unless the law will discriminate between dif- ferc-ut promises according as the considera- tion may diffier in the particular nature or kind. But is such a discrimination possible, so long as, in anygiven case,the consideration is sufficient in the eye of the law, and moves solely between the original parties? No one, it seems to me, can hesitate to answer such a question in the negative. Yet we are told, without reason or principle, that when a creditor releases a security to the debtor, al- though without releasing the debt a promise of another person, foimded on that peculiar consideration, is not within the statute. The inevitable logic of such a proposition will in- clude a like promise founded on any other consideration equally sufficient to sustain a contract; and, therefore, we are carried back to the first general proposition above stated, which is admitted to be false. It has al- ready been observed, that, without a consid- eration, no question on the statute of frauds can arise. In this elementary view of the question, I do not understiiud that much difference of opinion exists. It is claimed, however, tliat the course of adjudication has been such, that we cannot determine the case before us according to a consistent inile of law. This argument is foundeid in a misapprehension of the authorities, some reference to which will be necessary. In this state, an early case, and one of vei7 high authority, is that of Leonard v. Vreden- burgh, 8 .lohns. 29, in which Chief Justice Kent divided the c-ases on this branch of the statute of frauds into three classes, as fol- lows: (1) Where the promise is collateral to the i)rincipal contract, but is made at the same time, and becomes an essential ground of the original credit. (2) "Cases in wliich v the collateral undertaking is subsequent to the creation of the debt, and was not the ( inducement to it, though the subsisting lia- , bility is the ground of the promise." "Hfre," the chief justice observed, "there must be some further [or new] consideration shown, having an immediate respcKit to such liabil- ity; for the consideration of the original dibt will not attach to this subsequent promise. (3) Cases where the promise to pay the debt of another arises out of some new and orig- inal cousidei-ation of benefit or harm moving between the newly contracting parties." "The two fii"st classes," he further obsen'cd, "are within the statute of frauds, but the last is not" I suppose, in the light of later decisions, that the opinion of that great jurist, delivered in the case cited, may con- tain some inaccurate remarks respecting the right to prove a consideration for a collateral agreement where none appeared in the writ- ing. It would be so considered, especially since the change we have made in the lan- guage of the statute of frauds, requiring the consideration to be expressed in the collat- eral insti-ument But the above classifica- tion of the cases, and the connected remarks respecting each class, are strictly correct, and they have been a landmark of the law for forty years. Does the present case belong to the second class, which is within the stat- ute, or to the third, which is not? Manifest- ly it belongs to the second, because that is a class where the undertaking is subsequent to the creation of the debt. It does not fall without that class in consequence of the newness of the consideration, because, the learned chief justice said, "here must be some further [new] consideration having an immediate respect to such liability." It can- not fall within the third class, because if we arrange it there, we necessarily compress the two classes into one, or. more properly speaking, we merge the second wholly into the third. In such a disposition of the pres- ent question no second class is left of collat- eral undertakings subsequent to the creation of the original debt, founded, as they must be, on some new or "further consideration." The classification referred to. on a casual reading, is perhaps open to some misappre- hension, and I think it has been occasionally misapprehended. What then, is the tme distinction between the second and third classes? They are both of them promises, in form at least to pay the antecedent debt of a third person, and in that respect they are alike. The distinction, therefore, is in the consideration of the promises which be- 126 STATUTE or FEAUDS. long to the two classes; not in respect to its particular nature or kind, but in respect to the parties between whom it moves. In the one class, the consideration is characterized as a "further one, having immediate respect to the [original] liability" of the debtor; in the other, as "new and original moving be- tween the newly contracting parties." In the second class, the new or "further" con- sideration moves to the primary debtor. It may consist of forbear-ance to sue him, of a release to him of some security, or of any sufficient bejiefit to him or harm to the cred- j itor, but in which the collateral promisor has ' no interest or concern. In the third class,> the consideration, whatever its nature, moves I to the person making the promise, and that i also, as in all other cases of contract, may| I consist of benefit to him or harm to the party! with whom he is dealing. This distinction'^ is also extremely well expressed by Chief Justice Shaw of the supreme court of Massa- chusetts. One class of cases (within the statute), he says, is "where the direct and leading object of the promise is to become the surety or guarantor of another's debt;" the other class (not within the statute) is "where, although the effect of the promise is to pay the debt of another, yet the lead- ing object of the undertaker Ja^o sub serve ..O.r promote some interestjor_imnHase]]o|Jiis_ . own." Nelson vT^^nton, 3 Mete. (Mass.) 390-^5150. Chief Justice Savage, in this state (Farley v. Cleveland, 4 Cow. 432, 439), made the same classification. "In all these eases," he observed, referring to those which fall within tlie third class, "founded on a new and original consideration of benefit to the defendant or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or original debtor, the subsisting liability of the original debtor is no objection to a recovery." In one respect, this lan- guage of Chiel Justice Savage, has greater precision than that of Chief Justice Kent. The latter speaks of the consideration as "moving between the newly contracting par- ties." The former characterizes it as mov- ing to the party making the promise. This description is more exact, as well as more comprehensive, because it includes a variety of cases found in the books, where the new consideration springs from the original debt- or and not the creditor, as, for example, where the debtor, by conveyance of property or otherwise, places a fund in the hands of a third person, the latter promising, in con- sideration thereof, to pay the debt. But the difCerence is not one of principle, because there is a sense in which, even in such cases, the new consideration moves from the cred- itor through the debtor to the person making the promise, and on that ground many cases hold that the creditor may himself sue on the promise, although it was made to the debtor. Lawrence v. Fox, 20 N. Y. 268, and the cases cited. Where the promise in this particular description of cases has been made directly to the creditor, the only question has been on the statute of fi-auds; and the rule is very properly settled that they are not within the statute. The cases of Farley v. Cleveland, supra, Gold v. Phillips, 10 Johns. 412, and Olnistead v. Greenly, 18 Johns. 12, belong to this class. Omitting, then, the first class of collateral undertakings — I mean those made at the same time with the creation of the debt — as having nothing to do with the present ques- tion, there are two kinds of promises of ex- tensive use in the dealings of community, which, in form and effect, very much re- semble each other; each being to answer for or pay a debt already due or owing from a third person, yet wholly different in respect to the motive and consideration. In the one class the promisor has no personal interest or concern, and his undertaking is made sole- ly upon some fresh consideration passing between the creditor and his debtor. This class is within the statute. In the other, the promise may be in the same form, and, when performed, may have the same effect, but it is made as the incident of some new dealing in which the promisor is himself con- cerned, and upon a consideration passing be- tween the creditor or the debtor and himself. This class, which may include a great varie- ty of particvilar examples, is not within the statute. The distinction is broad and in- telligible, although the formal resemblance in such transactions may have occasionally led to inaccuracy of expression or decision. The great body of the cases, however, will be found to illustrate this distinction, and to establish it fiiTQly as a guide in this branch of the law. If such a distinction were a questionable one, the tendency of the doubt woidd necessarily be in the direction of hold- ing both classes of oases to be within the statute, but never in the direction of placing without the statute any one of the cases be- longing to the first of these classes. With this classification before us, it wiU be proper to notice more in detail the cases cited on the argument, and others not cited. In Skelton v. Brewster, 8 Johns. 376, the promise was held not within the statute, be- cause the delator had delivered goods to tlie defendant as the consideration of the under- taking, and the plaintiff, the creditor, had discharged the debt. For two reasons, there- fore, the promise by parol was good: First, it was founded on a new consideration re- ceived by the promisor; and, second, it was accepted as a substitute for the original debt; it could not be collateral. In Gold V. Phillips. 10 Johns. 412, one Wood owed the plaintiffs. He conveyed land to the defendants, who, upon that considera- tion, bound themselves to him to pay that and other debts. Being thus bound, they so informed the plaintiffs, and agreed to pay them. The case, therefore, very distinctly falls within the third class, according to the distinctions above set forth. Bailey v. Free- PROMISE TO ANSWER FOR DEBT OF ANOTHER. 12? man, 11 Johns. 221, was on a written guax- anty made at the same time with the prin- cipal contract, and it has nothing to do with the present question. Nelson v. Dubois, 13 Johns. 175, is equally foreign to the in- quiry. The plaintiff sold a horse to one Bnmdige, taking tlierefor the note of Bruu- dige, payable to hiinsolf or beai-er, and in- dorsed by the defendant. The lejjral propo- sition in the case was, that a guaranty might be written over the defendant's name, it be- ing a condition of the sale that he should be- come securitj' for the price. In Myers v. Morse, 15 Johns. 425, the plaintiffs were lia- ble as indorsers of a note of one H- Morse, and they held a note of the same person in- dorsed by the defendant The declaration set forth that the plaintifSs had agreed not to hold the defendant liable on his indorse- ment, in consideration of which, the defend- ant agreed to indemnify them ag^iinst one- third of any loss they might sustain on their own indorsement of the same person's note. A plea of the statute of frauds was held bad. This was plainly a case where the con- sideration moved to the defendant himself, and, therefore, it was held to fall within the third class of cases, according to the distinc- tion which has been explained. The defini- tion of Chief Justice Kent, in Leonard v. Vredenburgh, was expressly adopted and ap- plied to the facts. In Olmstead v. Greenly, 18 Johns. 12, the plaintiff was an accom- modation indorser on the note of B., and B. also owed him a sum of money; B. there- upon placed money and property in the hands of the defendant to provide for pay- ing the note and the debt, and upon that con- sideration the defendant promised the plain- tiffs to make such payment. The coui't said this was an original contract on an inde- pendent consideration received by the de- fendant Farley v. Cleveland, 4 Cow. 432, and same case in error, 9 Id. G39, already mentioned, was entirely similar. The plain- tiff held the note of one Moon, which the de- fendant promised to pay in consideration of fifteen tons of hay sold to him by Moon. The promise was hold to be not within the stat- ute. The reporter's note truly expresses the principle of the decision. It is as follows: "Where a promise to pay the debt of a third I f person arises out of some new consideration! of benefit to the promisor or harm to the^ j pi'omisee, moving to the promisor, either i ' from the promisee or the original debtor,) ' such promise is not within the statute of frauds, although the original debt still sub- ' sists and remains entirely unaffected by the -t new agreement" In Chapin v. Merrill, 4 Wend. 657, the promise was not within the statute, because it was not collateral to any debt or liability of a third person to the promisee. The third person proposed to con- tract a debt with fourth parties, and the plaintiff agreed to guarantee , that debt, the defendant at the same time agreeing to in- demnify him for so doing. The plaintiff might have invoked the statute. If his guar- anty had not been in writing. But the de- fendant was his indemnitor merely. It was a contingent liability, of necessity original," because there was nothing to which It could be collateral. There \vas no debt of the third person to the plaintiff. The case there- fore, had not even the formal resemblance to the present one, which, existing in other cases, has misled the plaintiff's counsel. The eases of Gardiner v. Hopkins, 5 Wend. 23; Ell wood V. Monk, Id. 235; King v. Despard, Id. 277; and Meech v. Smith, 7 Wend. 315,— are, all of them, in principle, with differences of detail, like Parley v. Cleveland, supra. In each of them the consideration of the new promise moved to the defendant proceeding either from the original debtor or the cred- itor, and the decisions were placed distinctly on that ground. It cannot faU to be seen, that nearly all the cases which have been mentioned; in fact, all of them which exhibit a promise to pay or answer for the debt of another per- son, are essentially of one type. With great variety in the circumstances, one controlling characteristic pei-vades them all. In__every instance the consideration of Jhe promise, was. beneHcTaTliJTEe person pro mising. This was the' fSTture whicinmparted to the promise the character of originality, as that term is used with reference to the statute of frauds. In not one of them is it true that the under- taking was entered Into upon a consideration merely beneficial to the debtor, but of no con- cern to the promisor; and I can confidently say that not one of those cases cont ains even a dictum, which, being understood, coxuite- nances the doctrine contended for on the part of the plaintiff in this case. The principle involved is tlie same which loms through oth- er cases that have not been cited. For ex- ample, A., holding the note of B., transfers it to C. upon a consideration moving from C to him, and with a parol guaranty of the payment This, in a merely formal sense, is a promise to answer for the debt of the mak- er of the note, and it has been strenuously contended that such a promise is within the statute. But the rule is otherwise; it be- ing considered tliat such transactions, how- ever close to the letter, are not within the intent of the statute; because they have their root in a new dealing which concerns the promisor, and in a new consideration which moves to him. Brown v. Curtiss, 2 N. Y. 225, was such a case, in which Judge Bronson remarked: "This belongs to the third class of cases mentioned by Kexit, C. J., in Leonard v. Vredenburgh; there was a new and distinct consideration independent of the debt of the maker, and one moving between the parties to the new promise." Such are also the cases of Johnson v. Gil- bert, 4 Hill, 178, and the very recent one in this court of Cardell v. McNiel (decided at the last term) 21 N. Y. 336. I have not yet referred to the case of Slin- 128 STATUTE or FRAUDS. gerland v. Moi"se, 7 Johns. 463, which seems to be much relied on; but it does not pi'e- isent the question now before us. The pLiin- tiff had distrained the goods of his tenant for rent, but did not remove them. There- upon the defendants signed a writing in these words: "We do hereby promise to de- liver to Peter Slingerland all the goods and cliattels contained in the within inventory in six days after demand, or pay the said Peter 51450." Looking at the face of that writing, it is only siirprising that any one could ever thinli^ it was within the statute of frauds. In its very terms it was original, and not col- latei-al. It discloses no debt of any one else than the defendant who signed it Looliing outside of it, we leara there was at least a claim made for rent due from another per- son, but it is quite obvious that, as a substi- tute for that claim, the creditor accepted the original promise of the defendant to deliver the goods or pay a sum of money. This is the evident import of the agreement itseK, for it recognizes no continuing debt or lia- bility of the tenant, nor does it undertalie to pay his debt or answer for him in any way. The goods were the fund. The defendant took them under his own control (a fact which the agreement assumes), and upon that consideration made himself the primary debt- or, and not the guarantor or surety. I think the case was weU decided, although it is veiy obscurely and scantily reported. So far, then, we find no cases or dicta in point. Yet it would not be true to say that the plaintiff's position is wholly unsupported by any authority in the coui^ts of this state. In Mercein v. Andrus, 10 Wend. 461, Savage, C. J., made this remark on a motion for a new trial: "The judge correctly stated to the jury tliat where the promise of one person to pay the debt of another was founded upon the consideration of surrendering up proj)- erty levied on by an execution, the promise was an original undertaking, and need not be in writing to be valid." Of course, no such point wa.s decided, because the decision granted a new trial upon another question not material to the present inquiry. The chief justice cited no authority. If he meant to lay down the doctrine, that a new consid- eration, moving from the creditor to the debt- or, the debt still remaining, would sustain the unwritten promise of another person to pay the debt, there was no authority to be cited, for no such proposition had ever been advanced in this state. If, however, the charge at the trial and the obsei-vation of the chief justice assumed, as the law was, that the levy of an execution extinguished the debt, and that the release of the levy re- mitted the creditor to the new promise as his only remedy, then the remark was strict- ly correct, but it has no application to this case.- Such is probably the true explana- tion; and we shall presently see there are English cas<^ under the statute standing on that ground. The plaintiff's counsel has been able, however, to cite one case which is en- tirely to his purpose. In Fay v. Bell, La- lor's Supp. 251, the plaintiff had a lien on a pair of boots which he had mended, and in consideration of releasing that lien and giv- ing up the boots, the defendant promised ta pay his demand, which amoimted to fifty cents. So far as appears, the debt still re- mained. The case went up from a justice's court, through the common pleas, to the su- preme court, where the question was dis- posed of with the single observation that the promise was "a new undertaking, founded on a new and distinct consideration, the relin- quishment by the plaintiff of his lien on the boots, and which was sufficient to uphold the promise made." The remark, as made, is strictly true. The consideration was dearly sufficient to uphold the promise, but the stat- ute of fi-auds requires not only a considera- tion but a writing. The case was of very slight importance, and the principles of the question were not examined. In the same book is another case, precisely the other way> the opinion being given by another judge. In Van Slyck v. Pulver, Lalor's Supp. 47, the promise was made in consideration that the plaintiff would suspend proceedings on an execution against his debtor. This forbear- ance was admitted to be a sufficient consid- eration, and it was certainly a new one; but the promise was held void within the statute. In all the judicial history of this state, then, there is but one adjudged case which sustains the doctrine contended for, and that is one entitled to no great consideration. I wUl now refer to several of a very decisive character, which furnish a true exposition of the statute, and show that the rule is the other way. One case I have just mentioned, which is directly in point, and is of a date comparatively recent Going back to an ear- ly day, in Simpson v. Patten, 4 Johns. 422, the plaintiff forebore to sue his debtor, and upon that consideration the defendant prom- ised to pay the debt as soon as he could sell a piece of land which belonged to the debtor. The promise was held void within the stat- ute of frauds, the court observing: "A prom- ise to pay the debt of a third person must be in writing, notwithstanding it is made on a sufficient consideration." I have some hesitation in citing Jackson v. Rayner, 12 Johns. 291, because it seems to me to have gone too far. The defendant had received an assignment of the debtor's property, and upon that consideration, as well as forbear- ance, the defendant promised to pay the de- mand. The court regarded the uncondition- al promise as evidence that the fund was adequate. Upon the discrimination made in the later cases (heretofore cited), the convey- ance of the property to the defendant was a new considei-ation, moving to him from the debtor, and made the promise an original one. Nevertheless, on the ground that the original debt still remained, the promise was held void under the statute. In Smith v PROMISE TO ANSWER FOR DEBT OF ANOTHER. 129 Ives, 15 Wend. 182, the declaration was on a written guaranty of a note, the considera- tion alleged being forbearance to sue the maker. Plea, that no consideration was ex- pressed in the writing. The plea was held good, the cc^urt saying: "Forbearance has never been considered a new consideration passing between the newly contracting par- ties, so as to take the case out of the stat- ute." In Packer v. Willson, 15 Wend. 343, a guaranty of the same nature, and upon the same consideration, was again held to be void. In Watson v. Randall, 20 Wend. 201, these propositions were expressly aihriued: (1) An agreement to forbear to sue a debtor is a good consideration for the promise of a third pei-son to pay the debt, but, to render the promise obligatoi-y, it must be in writ- ing. (2) While the debt remains a subsist- ing demand against the original debtor the promise of a third person is collateral, and must be in writing. In Barker v. Bucklin, 2 Denio, 45, a new ti'ial was ordered upon a point not now material; but the present question was quite fully examined by Mr. Justice Jewett According to his views, the promise in tliis case is clearly void. If I were to criticise his opinion, I should say he goes somewhat too far, by reason of not dis- criminating so as to uphold promises where (the original debt still remaining) the new consideration moves from the creditor to the promisor as well as from the primary debt- or. In Kiugsley v. Balcome, 4 Barb. 131, the principal cases were reviewed by Mr. Jiistice Sill, and his conclusion is thus stated: "The true rule is, that the new original considera- tion spoken of must be such as to shift the actual indebtedness to the new pi-omisor, so that, as between him and tlie original debtor, he must be bound to pay the debt as his own, the latter standing to him in tlie relation of surety." I do not tliink this a perfect defi- nition of an original promise to pay a sum for which another was previously bound as the primary debtor, because, as I have shown, there are many cases which such a defini- tion does not include. The more we exam- ine the original classification of Chief Justice Kent in Leonard v. Vredenburgh, the more we shall find it the result of a profound and masterly view of the subject; it being ucc- essaiy, however, to the completeness of his definition, that the new or original consid- eration may move to the promisor as well from the debtor as the creditor, the funda- mental requisite being that such considera- tion must not be one wholly existing or moving between the debtor and the creditor. These numerous authorities are decisive. They all present examples where tlie collat- eral undertaking was founded on a consid- eration sufficient to sustain the promise, but of no personal concern to the promisor; yet the promises were void, because they fell within the precise terms and the undoubted policy of the statute of frauds. Certainly that statute was not enacted for cases where nOPK.SEL.CAS.CONT. — 9 the promise woidd be void at the common law for want of a consideration to sioistain it If it was not I'uacted for the very eases where a new consideration arises, additional to the original debt, that being insufficient according to aU authority, then why was it ever passed? Indeed, the struggle in the courts has been to withdraw from its inUu- ence. not such cases as these, but otliers having a close formal resemblance, yet dis- tinguishable, not because there is a consid- eration, but because it moves to the promis- or, and so gives to his undertaking an origi- nal character. A perM»n who receives a con- sideration may be bound by any hiwful prom- ise founded upon it, and that promise may as well lie to pay another man's debt as to do any other act. The success of this stinig- gle, in a variety of instances not within the intent of the statute, shoidd not overthrow the very object for which it was enacted. This discussion would be incomplete with- out referring to the rule elsewhere than in this state. I have already mentioned the case of Nelson v. Boynton, 3 Mete. (Mass.) 39G, which may be regarded as settling the question in Massachusetts. The creditor in that case sued his debtor, and seized his property under an attachment. The defend- ant promised to pay the debt in considera- tion of a discontinuance of the suit. The suit was discontinued accordingly, and the lien of the attachment was thereby lost, but the debt remained against the original debt- or. It was held, upon the fullest considera- tion, Chief Justice Shaw giving the opiuiou, that the promise was void because it was not in writing. I regard the decision as of great value, because the cases were exam- ined, and the discrimination between the dif- ferent classes was made with entire accu- racy. Upon the argument of the present case a passage from an English text-book was read (Add. ConL 38), to the effect that, if the creditor has a lien or security which he is Induced to part with on the faith of a promise of another person to pay the debt, the prom- ise so made is notwithin the mischief intend- ed to be provided against by the statute of frauds, and may be good by parol. This ex- tract, according to its apparent meaning, seemed to indicate that in England the stat- ute of frauds was essentially disregarded. The authorities referred to by the writer to sustain the proposition are: Barker v. Birt, 10 Mees. & W. Gl; Haigh v. Brooks, 10 AdoL & E. 309-335; Barrell v. Tnisscll, 4 Taunt 117; :Meredith v. Short, 1 Salk. 2.".; Castling V. Aubert, 2 East, 325; and Walker v. Tay- lor, 6 Car. & P. 752 I have looked at these cases, and find that none of them have the slightest connection with such a propo- sition, except the two last, which are alike, and do not sustain It In the last case, the creditor had the possession and a lien upon certain licenses as a security for his demand, and he gave them up to the defendant, who 130 STATUTE OF FRAUDS. promised tx> pay the debt The case was at nisi prius. Tindal, C. J., said: "It is a new contract, under a new state of circumstaji- ces. It is not, 'I will pay, if the debtor can- not;' but it is, 'in consideration of that which is an advantage to me, I will pay you this money.' " "There is a whole class of cases in which the matter is excepted from the statute on account of a consideration arising immediately between the parties." Here is the very distinction so well established in our own cases. It should be added, that the text-wi-iter referred to could not have in- tended what his lajiguage apparently means; for hp add5, in the same connection. "In these cases, the plaintiff must so shape his case as not to show or admit that there is a princiijal debtor liable, and that the prom- Vie of the defendant is a promise to pay that 6ebt" The early case in England, of Williams v. Leper, 3 Bm-rows, 1886, 2 Wils. 308, is cited anc relie»j on to sustain the plaintiff's posi- tion; anJ it is, perhaps, the only one in the EiiiJjsh courts capable of a misinterpretation. But the case does not, in fact, sustain any such do<±iiDe, and it has never been so un- derstood in the courts of that ctyontry. One Taylor owed the plaintif £45 for rent. He conveyed all his effects for the benefit of his creditors, who employed Leper, the de- fetdant, to sell them; aiid he advertised them ftr sale ac-coidingly. The plaintiff then came to distrain, and the defendant proui- ised tc piiy the rent if he would not dis- trahi: and be desisted accordingly. Lord Mansfieid saia the defendant was a trustee for ai tbj creaitors, and was obliged to pay the lar;dioi*d, whv had the prior lien. Jus- tice Wilmot said the defendant became the bailiff ol the landlord, and, when he had sold thd goods, the money ws.'^ the landlord's in his ovrn bailiff s hands. Therefore, he said, an action would have lain against the defendant for money had and received to the plaintiff's use. Justice Yates said, it was an original consideration to the defendant. Jus- tice Aston thought tte goods were a fund be- tween both, "and on that foot he concurred." From the reasoning of these judges, it seems to me perfectly evident that, if the tenant had not assigned his goods, and the defend- ant had no connection with them as trustee or otherwise, but the plaintiff had simply re- leased his distress, or right to distrain, for the benefit of the debtor alone, the promise to pay the debt on that consideration would have been held within the statute. But as the facts were, the law would imply an ob- ligation on the defendant's part to pay over the money to the plaintiff after selling the goods; and where the law will imply a debt or duty against any man, his express prom- ise to pay the same debt, or perform the same duty, must, in its nature, be original. The distinguishing feature of the case was, that the creditor relinquished his distress. not to the debtor, but to other creditors of the same debtor who beneficially owned the goods, and the defendant was the represent- ative of those creditors, having the fund in his possession. K this early case had not been sometimes misapprehended, it is prob- able that no doubt would ever have arisen in questions like the one before us. The cases also cited of Houlditch v. Milne, 3 Esp. 86; Casthng v. Aubert, 2 East, 325; Edwards v. Kelly, 6 Maule & S. 204; Bird v. Gammon, 3 Bing. N. C. 883; Bampton v. Paulin, 4 Bing. 204; Walker v. Taylor, 6 Car. & P. 752; and Stephens v. Pell, 2 Cromp. &, M. 710, — differing only in immaterial cir- cumstances, all involved the same general principles as Williams v. Leper. In each of them the creditor relinquished some lien or advantage incident to his debt; but in each of them whatsoever he relinquished was ac- quired by the defendant — either as a matter of personal interest and concera to himself or to other parties whom he represented— and on that considei-ation he promised to pay. In none of them was any such doc- trine asserted as the plaintiff contends for in this case. In all of them the engagement was deemed original, either because the pri- mary debt was gone or because the consider- ation moved to the promisor; and in some of them the decision was put on both these grounds. These cases not only elucidate more perfectly the principle of Williams v. Leper, but they are in themselves illustra- tions of the distinction which, as we have seen, is recognized in our own courts. Re- ferring now to Read v. Nash, 1 Wils. 305, it was the case of a promise to pay the plain- tiff a certain sum if the latter would with- draw his record in an action of assault and battery against anotl:ier person, and would not proceed to trial. This pixamise was held not to be within the statute of frauds; the decision being placed on the ground that the person sued for the assault was not a debtor at all within the meaning of the statute, and could not be so considered until after ver- dict against him. "For aught we can tell," the court said, "the verdict might have been in his favor." The pi-omise, therefore, stood as at the common law. In Goodman v. Chase, a debtor, taken on a ca. sa. at the suit of the plaintiff, was discharged with the plaintiff's consent on the defendant's prom- ise to pay the debt. This was held an origi- nal promise, because the debt itself was ex- tinct and satisfied by the ca. sa. and its dis- charge; and the principle of the decision is a veiy plain one. I have now referred to all the decisions in the English courts which can be supposed to favor in any degree the doctrine on whicli the plaintiff in this case relies; and I think it may be safely affirmed, that no case has ever been determined in those courts tend- ing to the proposition that a parol promise to pay the debt of another person is valid where the consideration is beneficial only to tJie debtor, and where there is a debt which PKOMISE TO ANSWER FOR DEBT OF ANOTHER, 131 still remains against him. I will now men- lion a I'ew cases, among many oLliei'S, which show what the hiw in England is upon the precise question now to be decided. In Fish V. Hutchinson, 2 Wils. i)4, the pliiin- tiff had commenced a suit against his debt- or, and the defendant, in cousidei-ation that he would stay that suit, promised by parol to pay the debt The whole court of king's bench were of opinion that tJie undertaking was void by the statute of frauds; observ- ing that there was a debt still subsisting against another person and a promise to pay it The consideration was manifestly good, but that, moving as it did to the debtor only, did not sustain the promise without a writ- ing. This case was decided just one hun- dred years ago, and the principle of it was never departed fix)m in succeeding times. Coming down to a recent period, in Chmcy V. Piggott, 2 Adol. & E. 473, one Moore was indebted to the plaintiff, for which tlie lat- ter held his goods in pledge. In considei-a- tion of surrendering the pledge to the debtor, the defendant promised, by a writing which did not express the considei-ation, to pay tlie plaintiff his debt Williams v. Leper, and the other cases above referred to, belonging to that class, were cited to sustain the un- dertaking; but the court held it within the statute and void. Williams v. Leper, and the kindi-cd decisions, were not overniled, or even questioned, and the case, therefore, shows how those decisions are understood in England. In Tomlmson v. Gell, 6 Adol. & E. 564, the plaintiff's client was indebted to him for costs in a pending chancery suit, and in consideration of a discontinuance of that suit, the defendant promised to pay those costs to the plaintiff. Held void within the statute. Patterson, J., observed: "It is said that a new ccnsideration arose from the dis- continuance of the suit But I do not think it is a new one. The eases on tliat point are where sometlimg has been given up by the plaintiff, and acquired by the partj- making the promise, as a secoirity of goods for a debt." Without pursuing this discussion fuilher, the general riile is, tliat all promises to an- swer for the debt or default of a third per- son must be in writing, whether Uie prom- ise be made before, at the time, or after the debt or liability is created. Such is the rule, because so is the statute of frauils. The stitute makes no exception of any promise which is of that character. The courts have made no exceptions; as clearly tlioy should not. But a considerable variety of uudertiik- ings, having points of resemblance and an- alogy to such promises, have been held not to be witliin the statute. These may be chiefly, if not wholly, arranged in the fol- lowing classes: (1) Whore there was no orig- in.T.1 debt to which the auxiliary promise could be collateral; for example where the promisee was a mere guarantor for the tiiird pei-son to some one else, and the promisor agrees to indemnify him, or where his de- mand was founded in a pure tort (2) Where the origimil debt becomes extinguished, and the creditor has only the new promise to rely upon; for example where such new un- dertaking is accepted as a substitute for the original demand, or where the original de- mand Ls deemed satislied by the arrest of the debtor's body or a levy on his goods, the arrest or levy being discharged by the cred- itor's consent (3) Where, although the debt remains, the promise is founded on a new consideration which moves to the promisor. This consideration may come from the debt- or, as where he puts a fund in the hands of the promisee, either by absolute transfer or upon a trust, to pay the debt, or it may be in his hands charged with the debt as a prior lien, as in the case of Williams v. Le- per, and many others. So the cjnsideration may originate in a new and Independent dealing between the promisor and the cred- itor, tlie undertaking to answer for the deljt of another being one of the incidents of that dealing. Thus, A., for any compensation agreed on between him and B., may under- take that C. shall pay his debt to B. So A.. himself being the creditor of C, may trans- fer the obligation to B. upon any sufficient consideration, and guarantee it by parol. If we go beyond these exceptional and peculiar cases, and withdraw from the statute all promises of this nature, where the debtor alone is benefited by the consideration of the new undertaking, and the debt still subsists, then we leave absolutely nothing for the statute to operate upon. The judgment should be affirmed. t BACON, J. (dissenting). This case preset ts "^^^ a single question, and a proposition apparent- ly so simple that the first emotion is, perhaps, one of surprise that there could be any ques- tion in regard to it, since, in the multitude of decisions with which the books are filled touching the construction of the statute of frauds, it would seem that the rule applicable to a case which, in its essential features, must so often have arisen, must be settled by authority. My own conviction is, that the nde which governs this case has been long and well established in opposition to the con- clusion of the referee and the judgment of the supreme court; but, at the same time, it may readily be admitted that reservations and doubts have been suggested, and dis- criminations attempted, from time to time, that if they have ser^-ed no other purpose, have at least involved the matter in some ob- scurity. "Every special promise to answer for the debt, default or miscarriage of another per- son," the statute declares, "shall be void, un- less such agreement, or some note or mem- orandum thereof, expressing the considera- tion, be in writing and subscribed by the party to be charged therewith," 2 Rev. St 135, § 2. This statute, as is well known. Is 132 STATUTE OF FliAUDS. an almost literal transcript of the English statute of frauds (29 Car. II. c. 3); the only noticeable change being, that in our statute the consideration is required to be expressed iu the writing. This, however, so far as the construction of the two statutes is concerned, is of no special moment, inasmuch as the courts, both in England and in this state, had held, before the words were inserted in the section as it now stands, that it was neces- sary to a valid agreement that the considera- tion should, in some terms, be incorporated therein. Whatever, then, has, by the course of adjudication in England upon this clause of the statute, been deemed or acquiesced in as the settled law, must be accepted with us as controlling authority, unless, upon due consid- eration, and by the solemn judgment of some court whose decisions are recognized, any pe- culiar and special construction has been ques- tioned or repudiated. It would probably have been better if there had been less of what may, perhaps, without irreverence, be called legal, and even judicial tampering with the words of the statute, to force, at times, a constraetion seemingly at war with its natural and more obvious Import. But all regrets on this subject are vain, since the business of construction began with the infancy of the law, and has not yet ceased, and will doubtless attend it even down to old age. One of the earliest attempts to create and define a distinction by which agreements were to be held withm or without the scope of the statute was to express them by the terms "original" and "collateral." It is true that neither of these words is to be found m the statute, but they have been so long em- ployed in connection with it as to have attach- ed to them an established and recognized meaning; and the struggle always is, in de- termining the validity of such an agreement as seems to fall within the general purview of the law, to ascertain whether it is collat- eral and ancillary to the principal contract, having no aliment whatever independently of that, or whether it can be sustained and en- forced as an independent, original undertak- ing altogether outside of, and, therefore, not needing to be evidenced by the written agree- ment required by the statute. An attempt was made as early as 1811 by Chancellor Kent, then chief justice of the su- preme court, in the well-knov\Ti case of Leon- ard V. Vredenburgh, 8 Johns. 29, to arrange into three classes the cases where a promise, to be answerable for the debt of another, was within or without the statute. They are fa- miliar to the profession, and for a long time stood their ground as a just exposition of the law. The third class, in which he held that a promise to pay the debt of another was not within the statute "when it arose out of some new and original consideration of benefit or barm moving between the newly contracting parties," has been subjected to much criticism; and it may be fairly admitted that it is not now, in the naked and unqualified terms m which it is expr-issed, to be received as the true construction of the statute. And yet this rule did obtain, and was followed in several well-considered cases in our own courts. Thus, in Farley v Cleveland, 4 Cow. 432, the classification of Kent was stated and reafiirm- ed, and the case then on argument held to fall within his third class; and the court lay down the broad proposition, that, where a promise to pay the debt of a third person arises out of some new consideration of bene- fit to the promisor, or harm to the promisee, moving to the promisor either from the prom- isee or the original debtor, such promise is not within the statute. And it is added, that this is so, although the original debt still subsists, and is entirely unaffected by the new agreement. This case was carried up to the court of errors, and was there aflinned. 9 Cow. 639. The doctrine of the supreme court Is reiterated in the precise language of the marginal note in 4 Cow., and by an entirely undivided court; the report merely stating that Jones, Ch., examined the question, and was of opinion that the judgment should be aflirmed; "whereupon, per totam curiam, the judgment was affirmed." In Meech v. Smith, 7 Wend. 315, the same rule is again repeated and the court say that it has long been settled, that, although the promise be by parol, yet, if it arises out of some new and original consideration of bene- fit or harm moving between the newly con- tracting parties, the case is not within the statute. Alluding to Leonard v. Vredenburgh. and the above cited case of Farley v. Cleve- land, the court say: "This rule has been rec- ognized by all writers upon contracts, and by the highest court In the state, and is, there- fore, as much the law of the land as the stat- ute itself." The authority of Leonard v. Vre- denburgh. and especially the third class of Chancellor Kent, has been cited approvingly and followed in the courts of several of our sister states; and in the case of De Wolf v. Rabaud, 1 Pet. 47G, the judgment of the su- preme court of the United States proceeded substantially upon an aflirmance of the au- thority of Leonard v. Vredenburgh, as a just construction of the statute of this state. If these cases are to be received as approv- ed law at the present day, tliey decide more than enough to reverse the judgment now be- fore us; and there need be no further exam- ination of authorities upon the discussion which this case has opened. But it is impor- tant to a just appreciation of the ground upon which, as I suppose, the agreement in this case, and the consequent right of the plain- tiff to recover, is to be upheld, to notice the several cases in which the dLscrimination be- tween original and collateral promises has been established, or affirmed, by the courts. This discrimiuation will be found to exist, I think, and the requirements of the statute not to apply, under four conditions, within some one of which most of the authorities upon this particular section of the statute, and which,. PEOMISE TO ANSWER FOR DEBT OF ANOTHER. 133 In some respects, have been thought to con- flict with each other, may be arranged. 1. Where tlie primary afjreement has been in effect extinguished, and the promise super- seded, bj the new agreement and promise which have talien their place, and the credit is given wholly to the new promisor. 2. Where a fund has been provided, or prop- erty has been placed in the hands of the new- ly contracting p;irty, from which the means are to be procured to pay, or the promisor derives an equivalent or advantage therefrom. 3. Where the purport and intent of the agreement Is to accomplish the payment of the promisor's own debt, although the effect is to pay the debt of another, and where that debt is used to measure the extent of the lia- bility, as where A. owes B., and C. is indebt- ed to A., and in consideration of that liability promises, at A.'s request, to pay B. the debt A. is owing him. 4. Where the creditor, in consideration of the promise, surrenders some pledge, or re- linquishes some lien actually held by him and capable of enforcement, and by means of which the original debt was rendered secure. In all these classes, excepting the first, it does not affect the liability of the newly con- tracting party that the original debt subsists and the liability of the debtor remains in full force, "Wherever the conditions exist which I have arranged under these four heads, there is not only a sufficient consideration for the promise to pay another's debt, but the prom- ise is good although by parol. Numerous illustrations might be gathered from the authorities under these several heads; and although it must be admitted that the current of decisions is not uniform, and some apparently irreconcilable cases may be found, I am persuaded that a careful sifting of the facts, and an attention to the proper discrimination which should be made, would reconcile many which stand seemingly in con- flict, and in the result make this branch of the law more homogeneous and reliable. At pres- ent, however, it only concerns us to trace the course of decisions which have established the distinction expressed under the fourth head of exceptions to the operation of the stat- ute; and if it shall be found, as I think it will, a distinction fully recognized and up- held by a long and almost unbroken series of decisions, the right of the plaintiff to recover upon the facts of this case will be put beyond question. And, first, as to the condition of the English law upon this subject One of the earliest cases to be found in the books is Tomlinson v. Gill (decided by Lord Ilardwicke, in 17.")»i) Amb. 330. That case was briefly this: Gill, the defendant, promised the widow and ad- ministratrix of tlie intestate that, if she would permit him to be joined with her in the letters of administration, he would make good any deficiency of assets to discharge the debts of the intestate; and the action was brouglit by a creditor to enforce that agreement The de- fendant Insisted that the promise was void by the statute of frauds. It was holden to be not within the statute. Here was the reliu- quishirtent by the widow of a part of her ex- clusive lien upon and interest in the goods and effects of her husband, and which were a fund in her hands for the payment of the debts of the estate, and the defendant by the agreement, acquired that interest Lord Hardwicke goes even further than tnls in his decision, wherein he says it is not witliin the statute, "for there is," he adds, "a distinction between a promise to pay the original debt and on the foot of the original contract, and where it is on a new consideration. Here is quite a new consideration." There is a short case reported in Salkeld, standing apparently upon the .same ground. It was to this effect: The sheriff took goods upon an execution, and a stranger promised the officer to pay the debt in consideration that he would restore them. The action was brought upon that promise, and on demurrer it was held to be a good consideration. No benefit so far as the case discloses, accrued to the promisor, the goods being restored to the debtor; but the consideration which up- held the promise, and which was good as an original undertaking, was the relinquishment of the lien which the sheriff had upon the property by virtue of the levy under his exe- cution. Love's Case, 1 Salk. 2S. It is true that the statute of frauds is not called in question in this decision, but the case clearly presented that objection, which would, be- yond doubt, have been urged if either the counsel or the court had deemed it tenable. The next case, and the one, perhaps, most frequently cited and commented on in con- nection with the particular question we are considering, is Williams v. Leper, 3 Burrows, 1S8G, and reported also more briefly in 2 Wils. 308. The case was tried before Lord Mansfield, at Guildhall, and a verdict taken for the plaintiff upon the following state of facts: One Taylor was indebted to the plain- tiff in the sum of £45 for rent of premises he held of him as his landlord. Taylor, becom- ing insolvent, conveyed his property to the defendant Leper, for the benefit of his cred- itors. Leper took possession, when the plain- tiff came as landlord, to distrain for the rent due him; whereupon Leper promised that, if he would desist from distraining, he would pay the debt. The plaintiff, accordingly, in consideration of this promise, refrained from enforcing his distress, and the action was brought upon that agreement. In the court of king's bench, all the judges gave brief opinions. Lord Mansfield said, emphatically: "The case has nothing to do with the statute of frauds. The landlord had a legal pledge. He enters to distrain, and has the pledge in his custody. The defendant agrees that the goods shall be sold, and the plaintiff be paid in the first place. The goods are the fund. Leper was obliged to pay the landlord, who had the prior lien." The other judges con- 131 STATUTE OF PKAUDS. cxirred in the result; but Justice Astou was inclined to put it upon the fooring that the goods were a fund and Leper the bailiff of the landlord, and when he had sold the 'goods the money was in his hands substantially as the landlord's agent. The case may, perhaps, be safely maintained upon that special groimd, and is thus an authority within what I have ventured to designate as the second class of promises not within the statute; but I think the language of Lord Mansfield pre- sents very clearly the ground of the distinc- tion to be, that the plaintiff had, in conse- quence of the promise of defendant, relin- quished a lien operative and efficient to pro- duce satisfaction of the debt, and that it is a very ample authority to support the validity of such a promise upon that consideration. The case of Houlditch v. Milne, 3 Esp. 86, presents the point more clearly, and is a very decisive authority on the proposition we are discussing. The plaintiff had repaired car- riages for one Cofey, and charged the ac- count to him. The defendant sent an order to have them packed and sent on board a ship, and promised to pay the bill. On the trial the defendant's counsel asked that the plaintiff be nonsuited, on the ground that the promise be- ing to pay a debt of Cofey, who was himself liable, and not being in writing, it was void by the statute. But Lord Eldon refused to nonsuit the plaintiff, and held that it was an original undertaking. He cited the case of Williams v. Leper, saying that it appeared to apply precisely to the case then before him. '•The plaintiff," he adds, "had, to a certain extent, a lien upon the carnages, which he parted with on the defendant's promise to pay. This took the case out of the statute, and made the defendant liable." Castling v. Aubert, 2 East, 325, presented the following facts: The plaintiff was a broker, aud had in his hands policies of in- surance upon which he had a lien for certain acceptances he had given for one Grayson. The defendant, upon the plaintiff delivering him the policies that he might collect them, promiscHi that he would provide for the ac- ceptances as they became due. The plaintiff, being prosecuted on one of his acceptances, brought this suit to recover of the defendant upon his promise. It appeared that the de- fendant had collected the policies. Tliis was held to be an original undertaking, and not within the statute. It is true that it pre- sented another ground upon which the recov- ery could be sustained, to-wit, that the de- fendant had possessed himself of the fund created for the express purpose of meeting the debt, and this would sustain a count for money had and received. Lord Ellenborough puts it in both aspects, and says, at the close of his opinion, citing Williams v. Leper, that he agrees with that decision to the full extent of it. "I agree," he says, "with those of the judges who thought the c-ase not within the statute at all, and I aLso agree with the ground on which Mr. Justice Aston proceed- ed, that the evidence sustains the count for money had and received." A distinction had crept into the books found- ed upon a remark of Buller in Matson v. Wharam, 2 Term R. 80, to the effect that if the person to whose use goods are furnished or property delivered is liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds; and upon this distinction the case of Croft v. Smallwood, 1 Esp. 121, was decided. But this distinction was repu- diated in the cases already cited, in all which it is manifest that the original debt was still subsisting and remained unaffected by the new undertaking; and in this state that pre- cise poLat has been expressly adjudged in the case of Farley v. Cleveland, heretofore refer- red to, and in Rogers v. Kneeland, 13 Wend. 114. The principle of the cases I have thus cited has been affirmed, and the doctrine fully rec- ognized in two or three modem English cases, among which are Edwards v. Kelly, 6 Maule & S. 204; Bird v. Gammon, 3 Bing. N. C. 8S3; and Wiilker v. Taylor, 6 Car. & P. 752 (which is, pyerhaps, the most recent one), aud is to the following effect: The widow of a pub- lican employed an undertaker to conduct the funeral of her deceased husband, and deposit- ed with him the licenses of the house as a security for the payment of his bill. A., one of a firm who supplied the house with liquors, took out letters of administration on the es- tate, and B., the other partner, promised the undertaker that, if he would give up the li- censes to him, he would pay the funeral ex- penses. It was held that the undertaker, hav- ing surrendered the licenses, might recover his bill against R, although the widow was his employer and he had charged the admin- istrator as his debtor. Tindal, C. J., said on the trial: "Here is a new contract, under a new state of circumstances. It has nothing whatever to do with the statute of frauds." In view of these authorities, I think it may be safely atlirmed that the rule in England is too well settled to admit of question that the promise in this case is not within the statute of frauds. No case that fairly holds the con- trary has been produced, or even referred to, on the argument; and so well established does this doctrine seem to be, that the elemen- tary writers substantially concur in the prin- ciple derived from them. Thus Chitty says: "Although the debt of another form the sub- ject-matter of the defendant's undertaking, still, if he promised to pay the debt upon some new consideration raised by himself^ and the consideration be the resignation of a charge or lien which afforded a remedy, or fund, to enforce the payment, the case does not fall within the statute." Chit. Cont. (Springfield Ed. 1851) p. 446. Thus, also, Burge, Surety. 26, expresses in substance the same proposition: "Though the debt of another may have been the original cause of the promise, yet, if the person to PROMISE TO ANSWEIl FOR DEBT OF AXOTIIEU. 135 whom it is made rcliuiiimhes some right or advantiige which lie possessed, and which might have enabled him to obtain satisfaction of his debt, the promise by a third party to pay tlie debt in consideration of ^uch relin- quishment is an original promise, and not witliin the statute." See, also, Fell, Guar, c 2, §§ 7, S, to the same effect. Tlie rule is, perhaps, still more clearly and strongly stated by Addison, In his recent treatise on Contracts, who, on a collation of the authorities, both ancient and modern, states his conclusion in the following terms: "A contract or promise, although made con- cerning the debt or default of a third party, may yet be an original promise, not within the statute. If the plaintiff has a lien upon the property of his debtor in his possession, or holds securities for the payment of his debt, and is induced to give up the lien, or part with his securities, upon the faith of the defendant's promise to pay the debt, the promise so made is not within the mischiefs provided against by the statute, although the amount promised to be paid, on the surrender of the securities, may be the subsisting debt of the third party due to the plaintiff, and the possession of the promise may have the ef- fect of discharging the debt" Add. Cont 3S, 39. To the English cases above cited and com- mented on, I add that of B.arrell v. Trussell, 4 TaunL 117, where the same point is ad- judged. It was a case where the plaintiff was about to sell the property of one Abbott, under a bill of sale executed to him by Ab- bott. Having taken the property, the de- fendant, in consideration that the plaintiff would relinquish the possession to Abbott, promised verbally to pay the plaintiff £122, being the debt of Abbott due to the plaintiff, and to collect which the plaintiff was about to make the sale. The plaintiff obtained a verdict, but, on a rule to show cause, the de- fendant insisted that tlie plaintiff was not en- titled to recover because this was an agree- ment to answer for the debt of another, and there was no signature of the party sought to be charged. The counsel for the defendant, on the argument, insisted that here was no benefit derived to the defendant, as there was no delivery of the goods to the defendant; but Heath, J., said: "There was a detriment moving to the plaintiff, which is a good con- sideration; for in consequence of his forbear- ance, the goods were afterward taken aud sold on an execution against Abbott." At a subsequent day the rule was discliaigcHl, Mansfield, C. J., saying: "Wliat is this but the case of a man, who, having the absolute power of selling goods, refrains upon the re- quest of another? It is not a promise to pay another's debt" The cases decided in this state, with per- haps an occasional exception, affirm the same rule, even if they do not carry the doctrine somewhat further. It will be sufficient for our present purpose, however, if they shaU be found to be substantially in accordance with the English cases. I will examine them very briefly: Sliiigerland v. Morse, 8 Johns. 474, is the earliest reported case whore this question was presented. The plaintiff in that case had dis- trained the goods of his tenant for rent The defendant agreed that hu would deliver the goods in six days, or pay the amount of the rent, and thereupon the distre.ss was aban- doned and the goods left with the tenant This was held to be an original, and not a collateral undeilaking, and that no writing was, therefore, necessary. It was decided, substantially, upon the authority of Williams V. Leper. It has been said in regard to this case, that it may perhaps be sustained on the ground that the goods were a fund in the hands of the defendant, from the possession of which his liability resulted. But in an- swer to this it is only necessary to say, that no such reason is given for the decision, and in the case it is expressly stated that the goods were left with the tenant The cases of Skelton v. Brewster, 8 .Tolins. 37G, and Gold v. Phillips, 10 Johns. 412, I do not cite in this connection; for, although they both recognize the doctrine of Chancellor Kent in Leonard v. Vredenburgh, and hold the promise good because it was founded upon a distinct consideration arising between the newly contracting parties, yet, as in both cases property had been delivered to the de- fendant to enable him to discharge the debt, they do not fall within that precise class to which this case belongs. The case of Chapui v. Merrill, 4 Wend. 0.17, was an agreement to indemnify another for becoming the guarantor of a third; and it was held not to be within the statute, and is in point to show that it is not necessary that tlie defendant should receive any benefit from what w^as done by the plaintiff, the consid- eration in that case being purely harm to the plaintiff. Jackson v. Rayner, 12 Jolms. 291, is some- times cited as conflicting with the prior cases of Skelton v. Brewster and Gold v. Phillips, and with the distinction I am seeking to il- lustrate. It clearly does not with the latter, for no lien was surrendered or benefit waived by the plaintiff. The case came fairly within that class where tlie agreement is valid by reason of property being placed in the hands of the promisor to pay the debt, in consid- eration of which he agrees to discharge it. The court put the decision, however, upon the express ground that the original debt was still subsisting; a distinction which is no longer recognized. There cannot be a doubt that on the precise state of facts disclosed in tbat case, the decision would now be the oth- er way. In the case of Gardiner v. Hopkins, 5 Wend. 23, the plaintiff had a lien upon the sheets of a law-book he was printing for one Wiley, and the defendant promised that, if he would deliver the sheets, he would pay the balance 136 STATUTE or FRAUDS. of his account— tlie claim against Wiley still remaining in force. The case, as stated, leaves it a little uncertain whether the de- livery was made to Wiley, or to the defend- ant, who was his assignee. The decision pro- ceeded upon ihe ground that the plaintiff gave up what was claimed to be a valid lien, and the defendant derived a benefit from the surrender by obtaining the property. It Is not a case proceeding upon the simple ground of a lien surrendered; although, if that had been the only feature presented, I think it clear the verdict would have been sustained. The case of Mercein v. Andrus, 10 Wend. 461, presented the precise point. The plain- tiff had a levy by virtue of an execution upon the property of one Reed; and one of the de- fendants agreed that, in consideration of the release of the levy, the defendants would pay the plaintiff $150 at the expiration of some eighty days, or give their note for that amount. The judge at the trial ruled that a promise founded upon the consideration of surrendering up property levied on by execu- tion is an original undertaking and need not be in writing; and on the other ground, of the partnership liability, he left it to the jury to say, upon the evidence, whether the firm was bound by what had been shown upon that point A new trial was granted for a misdirection of the court upon this branch of the case; but upon the other. Chief Justice Savage stated that the ruling was right, and that a promise made upon such a considera- tion as appeared in the case was not within the statute of frauds. In reference to this case, it is said, in the able opinion of the su- preme court given in the present case at the general term, that what was said by Judge Savage in his decision on tliis point was en- tirely obiter, and that he cited no authority to support his conclusion. I cannot agree with the learned justice who gave the opinion, on this point So far from the remark being obiter, the precise question was presented. Lf the ruling at the circuit had been wrong, that would have been an end of the case, and a new trial would have been, perhaps, unneces- sary on the other ground. If, however, it was to be sent back, it was equally necessary to determine the other question, which was vital to the maintenance of the action itself; and as to the remark that no authority was cited, the chief justice probably deemed that the doctrine had been so often and well set- tled as to have become almost elementary, and requiring no array of cases to sustain it. Indeed, so well had the rule been establish- ed, that in the case of Smith v. Weed, 20 Wend. 184, the point was not even raised by the counsel on the argument It presented the case of a naked parol promise of a third person to pay the debt to the plaintiff, in con- sideration of the release of an attachment which the plaintiff had levied on the property of his debtor; and the court held, without any hesitation, that the lien was valid, and the re- lease thereof constituted a sufficient considera- tion for the undertaking of the defendant to pay the debt. Being an original promise, it was, of course, not within the statute. The last case which has arisen in our courts where this precise question has been present- etl is Fay v. Bell, Lalor, Supp. 251. The deci- sion is brief, but emphatic, and is given by an able and eminent judge, who, until his recent lamented decease, continued, with intellectual vigor unimpaired, and "natural force" almost unabated, by his large learning and ripened experience, to enlighten the tribimal over which he once presided. The facts were briefly these: One Daharch had employed the plaintiff to mend a pair of boots. The work had been done, and the boots remained in the possession of the plaintiff, and he had, of course, a lien for the amount of his charge. Upon the promise of the defendant to pay the demand, the boots were delivered to Daharclu There was a recovery, and on appeal it was Insisted that the promise was within the stat- ute of frauds; but the coui't held otherwise. Beardsley, J., who gave the decision, enters upon no argument to vindicate it He simply says: "It was a new imdertaking, founded on a new and distinct consideration, to-wit, the relinquishment by the plaintiff of his lien on the boots, and which was sufficient to up- hold the promise made. It was not within the statute of frauds." He then adds the au- thorities, some ten or twelve in number, among which are several we have particular- ly considered. Here, then, is an opinion not obiter— not unsustained, but fortified by au- thority, and presenting a state of facts abso- lutely identical with the case now before us. The decision has never been questioned or doubted by any succeeding case; and I pro- pose to abide by it, as a clearly expressed, well-considered and authoritative exposition of the law, and which determines the present case in favor of the plaintiff. Whatever we might be disposed to say of this as an orig- inal question— (and, were I at liberty to view it as such, I confess I should find diificulty in so construing the language of the statute as to exempt these cases from its operation) — I think the current of authority has too long and steadily set in one direction to be now turned aside, and that the rule stands too firmly, not only "super antiquas," but "super novas vias," to be disturbed. I need scarcely add that the cases of Barker V. Bucklin, 2 Denio, 45, and Brewster v. Si- lence, 8 N. Y. 207, to which we have been referred by the defendant's counsel, hold no doctrine whatever inconsistent with the great "cloud of witnesses" that have been summon- ed to the stand. The former case was where property had been sold to the defendant, in consideration of which he promised to pay the debt of the party delivering the property to the plaintiff. It was not a promise to pay the debt of a third party merely, but was, in ef- fect, an agreement to pay the defendant's own debt. The case was rightly decided upon all the authoritifcs, and it was unnecessary to PKOMISE TO ANSWER FOR DEBT OF ANOTHER. 137 go beyond this simple and plain proposition to upliold the recovery. Tbe case of Brewster V. Silence Is purely that of a naked written guaranty to pay another's debt, expressing no consideration. The court hold that the con- sideration could not be supplied by parol proof. There was no preten.se that, in con- sideration of the uudiTtaliiug, any lien was Burrendered or right relinquished which the plaintiCE held, and which was operative in his hands. Some evidence was attempted to be given on the trial ttiat the property was placed In the hands of the defendant, on which fact his undertaking was founded; but the court of appeals held that this was not only outside of the issue, but that the evi- dence given did not conduce to prove the point Bought to be establis'.ied. Tliis case also fl- Dally settled the doctrine whicJ} had been floating loosely through the reports, tlxat a guaranty could not be changed into a prom- issory note so as to charge the party by some other contract than the one he had in fact entered into; but beyond Uiis, and the other proposition that a guaranty which does not express the consideration is void under the statute of frauds, the case Is not to be in- voked as authority The deci-slon Is not, tlierefore, in contlict with the rule which is to be applied to this case, which is controlling upon the question before us. My opinion Is, tliat the judgment should be reversed, and a new trial granted, with costs to abide the event DA VIES and WRIGHT, Ji^ also dissented. Judgment affirmed. 138 STATUTE OF FRAUDS. [o ^ t\ MALLORY'S ADM'K v. MALLORY'S^I/^ ADM'K et aL i " (17 S. W. 737, 92 Ky. 316.) Court of Appeals of Kentucky. Dec, 3, 1891. Appeal from circuit court, Todd county. "To be officially reported." Action by C. L. Mallory's administrator against A. W. Mallory's administrator and others to recover personal property. Judg- ment for defendants. Plaintiff appeals. Re- versed. E. W. Hines and Ben T. Perkins, Jr., for appellant. BL G. Petrie and W. B. Rives, for appellees. BENNETT, J. A. W. Mallory, the appel- lee's intestate, was a widower with children, and C. I.. Mallory, the appellant's intestate, was a widow with one child, a son. Both of these persons owned property, and married each other. The husband, the appellee's in- testate, died, and in a few days thereafter, and before the personal property that the statute gives to the widow, and which is to be set apart to her, was set apart, C. L. Mal- lory, wife of A W. Mallory, and the appel- lant's intestate, died. This suit was insti- tuted by appellant's administrator to recover of the appellee, as administrator, the value of the said personal property, the same not hav- ing been set apart, and was, or some of it, on hand at the death of A. W. Mallory, but dis- posed of by the appellee. The contention of appellee is that, as there was an antenuptial contract between C. L. and A. W. Mallory, that entitled each to retain the title of his and her property, and dispose of the same as though no marriage had taken place, C. L. Mallory was not entitled to the property that the statute directs to be set apart to the widow upon the death of her husband. It is not alleged that the antenuptial contract was in writing; and as chapter 22, § 1, requires contracts in consideration of marriage to be in writing, if the contract relied upon comes within said provision. It was necessary to al- lege that the contract was In writing; and the answer, because of not alleging that fact, is not sufiic ent. Besides, the proof fails to show that the contract was in writing. Does the alleged contract come within said provi- sion? It seems that the question has been settled and put beyond dispute by this court in the case of Potts v. Merritt, 14 B. Mon. 406. That case, like this, was a case of verbal and antenuptial contract, and the Revised Statutes, then in force, had the same provi- sion, as to requiring the antenuptial contract to be in \\Titing, as the General Statutes, su- pra; and this court held that the contract was not enforceable, in law or in equity, unless it was in writing. An antenuptial contract is one by which the parties agree to antici- pate the general law controlling the maritiil relation, and make a law in that regard to suit themselves; and consideration for the contract is the agreement to marry each other, which must be consummated, else the con- sideration fails. So the contract clearly comes within the provision, supra, requiring contracts in consideration of marriage to be in writing. If they are not in writing, no ac- tion can be maintained on them, and, in a case like this, such contract is no defense to an action by the widow or her representative to enforce her marital rights. It is a mistake to say that the property that chapter 31, S 11, Gen. St., directs to be set apart to the widow, only vests in the widow upon the set- ting the same apart to her. By said statute the right to a certain kind of property, if on hand, if not, its value, etc., vests eo instanti, by operation of law, in the widow upon the death of her husband. The setting apart of said property is merely for the purpose of designating the individual pieces of property, and valuing them, and supplying their places with other property when required. Said property vests in the widow, and must be set apart to her whether or not she has any in- fant children; the only difference being that, if there are no infant children residing in the family, there shall be nothing set apart for their support. The case of Southerland v. Southerland's Adm'r, 5 Bush, 591, is relied on as establishing the fact that a verbal ante- nuptial agreement is valid between the con- ti-acting parties and volunteers. The leadin.i,' facts of that case are that the husband before marriage verbally agreed that his intended v/ife should retain her slaves, etc., after mar- riage, as her separate estate; and after mar- riage, and until her death, he uniformly ad- hered to that agreement, and recognized said property as her separate estate, and she al- ways claimed it and controlled it, as such; and, after the husband's death, the court said that, as between volunteers claiming the prop- erty by virtue of the husband's marital rights and the wife, equity would uphold that agree- ment as consistent with the husband's pow- er, he being sui juris all the time, to let the wife retain her property as her separate es- tate; but the wife has no power to relinquish her marital rights unless she pursues the law in that regard. The fact that the agreement was called antenuptial simply had reference to the fact In that case that it was made be- fore marriage. The judgment is reversed, and cause remanded for further proceedings consistent with this opinion. ",1 AGREEMENTS RELATING TO LAND. 133 />r May riAVILAND V. SAMMIS et aL (25 Atl. 394, G2 Conn. 44.) Supreme Court of Errors of Connecticut. 28. 1892. Case reserved from court of common pleas, Fairfield county. Action by Annie C. Haviland against Wil- liam A. Samrais and others to recover money paid by plaintiff to defendants under a mis- apprehension, Ha part of the purchase price of land, and which defendants had promised orally to repay. Case reserved for advice of this court on demurrer to the complaint. Advice that the demurrer be overruled. R. Frost, for plaintiff. M. W. Seymour and H. H. Knapp. for defendants. ANDREWS, C. J. The complaint alleges, in substance, that on the 2Gth day of June, 1SS8, the defendants were the owners of a tract of land on West avenue, in the city of Norwalk, which they represented to the plaintiff to be 110 feet wide; that the plain- tiff, relying on their representation, agreed to buy the land, and made on that day a part payment of the ^purchase money, and on the 29th day of the same month paid the balance of the purchase price to the de- fendants; that thereafter the defendants tendered to the plaintiff a deed, which de- scribed the land to" be 110 feet, more or less, wide on West avfcnue, and 89 feet wide in the rear. Apparently the plaintiff refused to accept the deed, for the complaint avers "that the said defendants, by their said agent, agreed by parol with the plaintiff, through her said agent, that if she would accept said deed they would pay her the difference between the value of the tract described in the deed and the value of the tract as represented by them, and that the plaintiff, under this agreement, accepted said deed." The complaint alleges the dif- ference in the value to be .?7.50, and that the defendants have refused to pay it. The plaintiff claims damages to the amoimt of $800. The defendants demur to the com- plaint, "because it appears from the allega- tions thereof that the agreement upon which the plaintiff seeks to maintain her action, if any such was made, was for the sale of real estate, or an interest in or concern- ing it, and was bj* parol, and not in writing, as required by the statute of frauds." The proposition of law maintained by the de- fendants, "that when an entire and indivis- ible contract is partially within the statute of fraiids, the whole is avoided by the stat- ute if that part is by parol," is undoubtedly correct. But this case is not affected by that proposition. The defendants had con- tracted to convey to the plaintiff a certain piece of land, for which she had paid them. They propo.sed to convey a smaller piece. She refused to accept it. They then say to her: "If you will accept the deed of the smaller piece, we will return to you the difference in value between the piece of land we agreed to convey to you and the piece of land which in fact we do convey to you." The promise to return the excess of money is not affected by any sale of land. Analj'ze the transaction between these parties more minutely, and this becomes clear. The defendants had had negotia- tions with the plaintiff by which they had contracted to convey to her a certain piece of land, for which she had paid them. They tender her a deed of a smaller piece, which she refuses to accept. At that mo- menj all contract for the sale of th:it piece 'fi?~lnnjj js^nt nn end" "ThTTrtlle'parties be- gin to negotiate for the sale by the defend- ants to the plaintiff of a different piece of land,— a smaller piece. The plaintiff con- sents to take a smaller piece at a smaller price. This is a new contract. A deed is given and accepted. The price had been paid. All contracts respecting land or any interest in or concerning land between these parties were then concluded, — executed on both sides. But the money representing the difference in price between the piece of land agreed by the first negotiation to be con- veyed and the price of the land actually conveyed remained in the hands of the de- fendants. They had promised to return it to the plaintiff. They have not done so. This action is brought to recover it. "The statute of frauds does not apply to such an action, whether brought on an implied or upon an express agreement. The obligation to repay the money advanced by the plam- Tnr is indepeudenT of the character of__the consideration upon which the advance_was made.- And if an express promise to that effect be separable from the principal agree- ment to which it is an Incident, it may be enforced, although the principal agreement might be avoided. The fact that a certain stipulation is made at the same time, and forms a part of an arrangement for the sale of an interest in land, does not prevent an action from being maintained upon it: pro- vided—First, that the action does not tend to enforce the sale or purchase of the in- terest in land; and, second, that in other respects the stipulation is susceptible of be- ing separately enforced by action. Such stipulations, collateral to the sale, but con- tained in the same contract, have been re- peatedly enforced." Wetherbee v. Potter, 99 Mass. 354. 3G1; Wilkinson v. Scott, 17 Mass. 258; Hall v. Solomon. Gl Conn. 47G. 23 Atl. S7G. The court of common pleas is advised to overrule the demurrer. The other judges concurred. STATUTE OF FRAUDS. MUMFORD T. WHITNi.j..i (15 Wend. oSO.) Supreme Ccurt of New York. May, 1836. This was an action on tlie case tried at the Monroe circuit, in April, 1S32, before the Hon. Addison Gardiner, one of the circuit judges. The suit was brought for the recovery of damages for the flowing of lands, by the erec- tion of a dam by the defendant, in the Genesee river. The plaintiff showed title to the prem- ises, and proved the injury alleged Ln his dec- laration. The dam complained of was erected in 1S26, abutting upon the land of the plain- tiff and partly placed upon it. The defendant proved a parol licence from the plaintiff for the erection of the dam, and also insisted that the plaintiff had recognized its existence in deeds executed by him, conveyiag mill-sites suppUed with water for hydraulic purposes by means of such dam. To support this groimd of defence the defendant gave in evidence: (1) A deed from the plaintiff to one Sylvester Felt, bearing date 1st December, 1825, convey- ing a mill-site, on a canal situate on the west- erly side of the river, which was supplied with water from the westerly channel of the Gen- esee river, formed by an island near Rochester owned by the plaintiff; together with the privilege of taking such proportion of the water as the w-idth of the lot conveyed, bore to the whole length of the line of the canal; to be held and enjoyed in common with the other proprietors upon the canal, and subject to a proportion of the expense of repairs, t&c. (2) A contract dated 2d December, 1825, whereby the plaintiff agreed to convey unto one Silas Ball a lot upon the same canal, with the same rights as to the use of water, and subject to the same limitations and restrictions as c-ontaincd in the plaintiff's deed to Sylves- ter Felt And (3) a deed from the plaintiff to Sidney S. Allcott, dated 7th April, 1828, con- veying another lot on the canal, with the like privilege of water and with the like condi- tions as contained in the deed to Felt and in the contract with Ball; and then proved that those several lots were supplied with water for hydraulic purposes by means of the dam erected by the defendant. To rebut this evi- dence, it was shown on the part of the plain- tiff, that previous to 182G the canal mentioned in the plaintiff's deeds was supplied with wa- ter by means of a dam erected across the Gen- esee river in 1812, at the upper or southerly end of the island owned by the plaintiff, the half of which dam was cut away in 1824, by one Solomon Cleveland, an owner of property on the east side of the river, who then erected a dam near the lower or northerly end of the island, which, after being carried off by a freshet, rebuilt, and again swept away, was replaced in 1826 by the dam in question. The plaintiff also proved that the deed from him to Allcott was executed pursuant to the terms 1 Irrelevant parts omitted. of a contract entered into between him and Allcott in October, 1825, and that the descrip- tion of the lot with the water privileges con- nected therewith, as expressed in the deed, had been taken verbatim from the contract. Several minor questions arose on the triaL The plaintiff had examined a witness as to declarations made by the defendant at and about the time of the erection of the dam Ln 1826, and of and concerning such erection. The defendant's counsel, on the cross-exam- ination of the same witness, asked him wheth- er, in the same conversation, the defendant had said that the plaintiff had given his con- sent to the erection of the dam. The plain- tiff's counsel objected to proof of the defend- ant's declarations, except for the purpose of explaining the declarations called for by the plaintiff, and insisted that the defendant was not entitled to give proof of his own declara- tions upon a distinct subject, although made in the course of the same conversation. The judge overruled the objection, and the witness testified that the defendant did at that time say that the plaintiff had consented to the erection of the dam. Another question arose as follows: it was proved, on the part of the plaintiff, that in 1824 an agreement took place between him and Cleveland, who cut away the old dam in 1824, in respect to the build- ing of a dam on the site of the dam subse- quently erected, in 1826; that the agreement was reduced to writing, but not executed; that Cleveland took a copy of it to show to others interested in the mattei", and that short- ly afterwards he commenced the erection of the dam. After showing these facts, the plaintiff offered the agreement thus reduced to writing in evidence; but the judge refused to receive it. The witness who had given this account of the written agreement, also testi- fied that Cleveland, at the time, agreed to con- struct a stone wall along the east line of the island, to protect it from injui-y; and after giving such testimony, the plaintiff's counsel enquired of the witness whether it was under- stood between the plaintiff and Cleveland, that Cleveland should not build the dam, im- less he built a wall to secure the island. To this enquiry the defendant's counsel objected, and was sustained by the judge. The judge charged the jury, as to the ground of defence assumed by the counsel for the de- fendant, that by virtue of the plaintiff's con- tract and deed, executed previous to the year 1826, the grantee acquired the right to locate the dam in question where it had been placed, or to maintain it, that those instruments were to be construed in reference to the actual state of things and the nature of the plaintiff's rights, and could have no application to the dam erected in 1826; and also that those in- struments could not be used by the defendant as constituting an estoppel to the plaintiff's right of action against the defendant, because the defendant was not a party to them; but he charged them that a licence, by the plain- tiff to the defendant and others, to construct AGREEMENTS RELATING TO LAND. 141 the dam in question, would constitute a valid defence to the action, because the plaintiff would thus be a party to the nuisance, and he could not recover for any injury it produ- ced, and submitted the evidence on the sub- ject of the licence to the consideration of the jury. The judge also charged the jury that the conveyance by the plaintiff to Allcott of mill privileges and the right of using water on the canal, referred to and adopted the means of furnishing water to the canal as they existed at the date of the deed, and as the present dam was then erected the deed was a full confirmation and recognition of it, and that such confirmation and recognition » applied to the effects of the dam upon the property of the plaintiff. He told the jury that it had been fully proved that the plaintiff had sustained some Injury, and that as to the measure of damages, they were the exclusive judges. The jury found a verdict for the de- fendant. The plaintiff's counsel having ex- cepted to the charge of the judge and to va- rious decisions in the progress of the trial, now moved to set aside the verdict. The cause was argued by J. C. Spencer, for plaintiff. F. M. Haight and D. D. Barnard, for defendant SAVAGE, C. J. The questions are: (1) Whether the defendant was entitled to prove his own decLirations, made in the same con- versation about which the plaintiff had ex- amined the witness; (2) whether the copy of the agreement reduced to writing, but not ex- ecuted, should have been received in evidence; (3) whether the witness should have been per- mitted to testify as to the licence being con- ditional; (4) whether a parol licence in this case is valid; (5) whether the deed to Allcott was a recognition of the dam erected by the defendant 4. Suppose, however, the licence to have been properly and fully proved, was It valid and available as a defence to this action? Did it purport to convey an interest in or con- cerning the lands of the plaintiff, which re- quired an agreement in writing? The 9th sec- tion of the statute of frauds of 1S13 (1 R. L. 78, § 9) declares that all leases, estates, in- terest of freeholds or terms of years, or any uncertain interests of, in, to or out of any lands, made by parol and not in writing, shall have tlie effect of estates at will only. This clause excepts leases for three years. The 10th section declnri/>, the only rational ground, the cases of Evans v. Roberts^ 5 Bam. & C. S29; Smith V. Surman, 9 Barn. & C. 561; and. Scored V. Boxall, 1 Younge & J. 396,— have been decided. And as we think that grow- ing crops have all the consequences of chat- tels, and are like them, liable to be taken in execution, we must rule the points saved for the plaintiff.' " Various other decisions have proceeded on the same principle, although it has no where been stated and illustrated with the same clearness and force as m the opinion of Chief Baron Joy. The following cases may be cited to show that growing crops of grain and vegetables, fructus industriales, being goods and chat- tels, and not real estate, may be conveyed by a verbal contract, as they may also be sold on execution as personal chattels. Car- rington v. Roots, 2 Mees. & W. 248; Sams- bury V. Matthews, 4 Mees. & W, 343; Ran- dall V. Ramer, 2 Johns. 421, note; Mumford V. Whitney, 15 Wend. 387; Austin v. Sawyer, 9 Cow. 39; Jones v. Flint, 10 Adol. & E. 753; Warwick v. Bruce, 2 Maule & S. 205; Graves v. Weld, 5 Barn. & Adol. 105. But where the subject matter of a contract of sale, is growing trees, fruit or grass, the natural produce of the earth, and not annual productions raised by manurance and the industry of man, as they are parcel of the land itself, and not chattels, the contract, in order to be valid must be In writing. Teal V. Auty, 2 Brod. & B. 99; Putney v. Day, 6 N. H. 430, Olmstead v. NUes, 7 N. H. 522; Crosby v. Wads worth, 6 East, 602; Rodwell V. PhUlips. 9 Mees. &r. W. 501; Jones. V. Flint, 10 Adol. & K 753. The contract in this case was within the statute, and being by parol was void. The judgment, of the common pleas must be af- firmed. Judgment affirmed. .^ AGREEMENTS RELATING TO LAND. 147 V /> 0> I HIRTH V. GRAHAM.1 [7 (33 N. E. 90, 50 Ohio St. 57.) SuprenjL' Court of Ohio. Jan. 24, 1893. Error to circuit court, Morrow couuty. Action for breach of contract by one Hirth against one Graham. PlaiutifC recovered a judj;uieut before a justice of the peace of Morrow couuty, which, upon error being brouj4ht to the court of common pleas, was alhrmed. The case was then talien on error to the circuit court, where the judgments of the court of common pleas and of the justice were both reverscnl, and plaintiff brings er- ror. AfUrmed. James H. Beebe, for plaintiff in error. An- drews & Simms, for defendant in error. BRADBURY, J. The plaintiff in error brought an action before a justice of the peace to recover of tbe defendant in error damages alleged to have been sustained on account of the refusal of the latter to per- form a contract by which he had sold to the plaintiff in error certain growing timber. The defendant attempted to secure the dis- missal of the action, on the ground that the justice had no jurisdiction of an action for the breach of such a contract. Failing in this, and the action being tried to a jury, he requested the justice to instruct the jury "that if they find from the evidence that the trees at>out which this action is brought were at the time of said alleged contract then grow- ing upon the land of defendant, and that no note or contract or memorandum was made of the contract of sale was at the time made in writing, the plaintiff cannot maintain this action, and your verdict should be for tbe de- fondant," which instruction the justice re- fused to give, but on the contrary gave to them the following instructions on the sub- ject: "This is an action for damage, not on the contract, nor to enforce the same; and if you find that a contract was made verbal or otherwise and the defendant refused or fail- ed to comply with its terms, the plaintiff is entitled to any damage you may find him to liave sustained by way of such noncompli- ance." The defendant in error, who was also the defendant in the justice's court, excepted, both to the charge as given and to the re- fusal to charge as requested; the verdict and judgment being against him, he embodied tlie cliargo as given, as well as that refused, in separate bills of exceptions, and brought the cause to the court of common pleas on error, where the judgment of the justice of the peace was attirmed. He thereupon brought error to the circuit court, where the judgments of the court of common pleas and tliat of the jtistice were both reversed, and it is to reverse this judgment of the circuit court, and reinstate and affirm those of the court of common pleas and justice of the peace, that this proceeding is pending. 1 Irrelevant parts omitted. Ckiun.sel for plaintiff in error contends that the record contains nothing to show that the trees which were the subject of the contract were standing or growing, and that there- fore it does not appear that the defendant was injured by the In.structions given and re- fused. The record does not support this con- tention. During the trial three separate bills of exceptions were taken, and, when all of them are considered together. It clearly ap- pears that evidence was given tending to prove .that the trees, the subject of the con- tract, were growing on the land at the time it was made, and that the contract was not evidenced by any note or memorandum in writing. The instruction refused was, there- fore, pertinent, and if It contained a sound legal proposition the refusal to give it in charge to the jury was prejudicial to the de- fendant. The court, however, not only re- fused to give the instructions requested by the defendant, but told the jury in substance that no written memorandum was necessary. Whether a sale of growing trees Is the sale of an interest in or concerning land has long been a much controverted subject In the courts of England, as well as in the courts of the several states of the Union. The ques- tion has been differently decided in different jurisdictions, and by different courts, or at different times by the same court within the same jurisdiction. The courts of England, liarticularly, have varied widely in their lioUl- ings on the subject. Lord Mansfield held that the sale of a crop of growing turnips was within this clause of the statute. Emmereon V. Heelis, 2 Taunt. 3S, following the case of Waddington v. Bristow, 2 Bos. & P. 452, where the sale of a crop of growing hops was adjudged not to have been a sale of goods and chattels merely. And in Crosby v. Wads- worth, 6 East, 602, the sale of growing grass was held to be a contract for the sale of an interest in or concerning land. Ivord Ellen- borough saying: " Upon the first of these questions," (whether this purchase of the growing crop be a contract or sale of lands, tenements, or hereditximents, or any interest in or concerning them,) "I think that the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time and for given pur- poses, is a contract or sale of an interest in, or at least an interest conceniing. lands." Id. 010. Afterwards, in Teal v. Auty, 2 Brod. & B. 99, the erv.rt of common pleas held a con- tract for the sale of growing poles was a sale of an interest in or concerning lands. Many decisions have been announced by the Eng- lish courts since the cases above noted were decided, tlie tendency of which have been to greatly narrow the application of the fourth section of the statute of frauds to crops, or timber, growing upon land. Crops planted and raised annually by the hand of man are practically withdrawn from its operation, while t-he sale of other crops, and in some in- 148 STATUTE or FRAUDS. stances growing timber, also, are withdrawn from the statute, where, in the contemplation of the contracting parties, the subject of the contract is to be treated as a chattel. The latest declaration of the English courts upon this question is that of the common pleas di- vision of the high court of justice, in Mar- shall V. Green, 1 C. P. Div. 35, decided in 1S75. The syllabus reads: "A sale of grow- ing timber to be taken away as soon as pos- sible by the purchaser is not a contract or sale of land, or any interest therein, within the fourth section of the statute of frauds." This decision was rendered by the three jus- tices who constituted the common pleas divi- sion of the high court of justice, Coleridge, C. J., Brett and Grove, JJ., whose characters and attainments entitle it to great weight; yet, in view of the prior long period of un- settled professional and judicial opinion in England upon the question, that the court was not one of final resort, and that the de- cision has encountered adverse criticism from high authority (Benj. Sales [Ed. 1892] § 126), it cannot be considered as finally settling the law of England on this subject. The con- flict among the American cases on the sub- ject cannot be wholly reconciled. In Mas- sachusetts, Maine, Maryland, Kentucky, and Connecticut sales of growing trees, to be pres- ently cut and removed by the vendee, are held not to be within the operation of the fourth section of the statute of frauds. Claf- lin V. Carpenter, 4 Mete. (Mass.) 580; Nettle- ton V. Sikes, 8 Mete. (Mass.) 34; Bostwick v. Leach, 3 Day, 476; Erskine v. Plummer, 7 Me. 447; Cutler v. Pope, 13 Me. 377; Cain v. McGuire, 13 B. Mon. 340; Byassee v. Reese, 4 Mete. (Ky.) 372; Smith v. Bryan, 5 Md. 141. In none of these cases, except 4 Mete. (Ky.) 373, and in 13 B. Mon. 340, had the vendor attempted to repudiate the contract before the vendee had entered upon its execution, and the statement of facts in those two cases do not speak clearly upon this point. In the leading English case before cited, (Marshall v. Green, 1 C. P. Div. 35,) the vendee had also entered upon the work of felling the trees, and had sold some of their tops before the vendor countermanded the sale. These cases, therefore, cannot be regarded as directly hold- ing that a vendee, by parol, of growing tim- ber to be presently felled and removed, may not repudiate the contract before anything is done under it; and this was the situation in which the parties to the case now under con- sideration stood when the contract was re- pudiated. Indeed, a late case In Massa- chusetts, (Giles V. Simonds, 15 Gray, 441), holds that "the owner of land, who has made a verbal contract for the sale of standing wood to be cut and severed from the free- hold by the purchaser, may at any time re- voke the license which he thereby gives to the purchaser to enter his land to cut and car- ry away the wood, so far as it relates to any wood not cut at the time of the revocation." The courts of most of the American states, however, that have considered the question, hold expressly that a sale of growing or standing timber is a contract concerning an interest in lands, and within the fourth sec- tion of the statute of frauds. Green v. Arm- strong, 1 Deuio, 550; Bishop v. Bishop, 11 N. Y. 123; Westbrook v. Eager, 16 N. J. Law, 81; Buck V. PickweU, 27 Vt 157; Cool v. Lum- ber Co., 87 Ind. 531; Terrell v. Frazier, 79 Ind. 473; Owens v. Lewis, 46 Ind. 488; Ann- strong V. Lawson, 73 Ind. 498; Jackson v. Evans, 44 Mich. 510, 7 N. W. 79; Lyle v. Shin- nebarger, 17 Mo.App.66; Howe v. Batchelder, 49 N. H. 204; Putney v. Day, 6 N. H, 430; Bowers v. Bowers, 95 Pa. St. 477; Daniels v. Bailey, 43 Wis. 506; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467; Knox v. Haralson, 2 Tenn. Ch. 232. The question is now, for the first time, before this court for determination; and we are at liberty to adopt that rule on the subject most conformable to sound rea- son. In all its other relations to the affairs of men, growing timber is regarded as an « I Integral part of the land upon which it stands; / 'it is not subject to levy and sale upon execu-, tion as chattel property; it descends with the land to the heir, and passes to the vendor with the soil. Jones v. Timmons, 21 Ohio Sti 1596. Coal, petroleum, building stone, and] many other substances constituting integral parts of the land, have become articles of commerce, and easily detached and removed, and, when detached and removed, become personal property, as well as fallen timber; but no case is foimd in which it Is suggested that sales of such substances, with a 'view to their immediate removal, would not be with- in the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an Interest in or concerning lands should depend not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty. This rule has the additional merit of being clear, sim- ple, and of easy application, — qualities en- titled to substantial weight In choosing be- tween conflicting principles. Whether cir- cumstances of part performance might re- quire a modification of this rule is not be- fore the court, and has not been considered. Judgment aflirmed. 0,1 AGREEMENTS NOT TO BE PERPOliMED WITHIN A YEAR 149 7 BLAKE V. COLE.i 17 (-22 Pick. 97.) Supreme Judicial Court of Massachusetts. Mii-ch Term, 1839. This was an action brought by the plaintiff as administrator of the estate of Jabez Hatcii senior, deceased, to recover the sum of $2UO0 paid by the plaintiff as such administrator to the use of the defendant At the trial, before Sluiw, C. J., it appeared, that on the 11th of August, 1834, the plain- tiff's intestate and the defendant became sure- ties on a bond at the probate otiice, given by Jabez Hatch junior (son of the intestate) as principal, on his appointment as the adminis- ti'ator of one Gallagher; tliat the principal made default, and he and his sureties be- came liable to tlie amount of $400 contract or not If a manufacturer is to produce an article which at the time of the delivery could be the subject of sale by him, the case is within the statute of frauds. The rule excludes all cases where work is done upon the goods of another, or even mate- rials supplied or added to the goods of an- other. Thus if a carriage-maker should re- pair my carriage, both furnishing labor and supplying materials, it would be a contract for work and labor, as the whole result of his efforts would not produce a chattel which could be the subject of sale by him. If on the other hand, by the contract he lays out work or materials, or both, so as to produce a chattel which he could sell to me, the con- tract is within the statute. This conclusion has been reached only after great discussion and much fluctuation of opinion, but must now be regarded as settled. The leading case upon this point is Lee v. Griffin, 1 Best &, S. 272; Benj. Sales, 77. The action was there brought by a dentist to recover £21 sterling for two sets of artificial teeth, made for a deceased lady of whose estate the de- fendant was executor. The court held thia to be the sale of a chattel within the stat- ute of frauds. Blackburn, J., stated the principle of the decision in a clear manner: "If the contract be such that it will result in the sale of a chattel, then it constitutes a sale, but if the work and labor be bestowed in such a manner as that the result would not be any thing which could properly be said to be the subject of sale, the action is for work and labor." The Massachusetts rule, as applicable to goods manufactured or modified after the bargain for them is made, mainly regards the point whether the products can, at the time stipulated for delivery, be regarded as "goods, wares and merchandise," in the sense of being generally marketable com- modities made by the manufacturer. In that respect it agrees with the English rule. The test is not the non-existence of the commod- ity at the time of the bargain. It is rather whether the manufacturer produces the arti- cle in the general course of his business or as the result of a special order. Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112. In this very recent case, the result of their de- cisions is stated in the following terms: "A contract for the sale of articles then exist- ing, or such as the vendor in the ordinary course of his business manufactures or pro- cures for the general market, whether on hand at the time or not, is a contract for the sale of goods to which the statute ap- plies. But on the other hand, if the goods are to be manufactured especially for the purchaser and upon his special order, and not for the general market, the case is not within the statute." Under this rule it was held in Gardner v. Joy, 9 Jletc. 177, that a conti-uct to buy a certain number of boxes of candles at a fixed price per pound, which the vendor said he would manufacture and de- liver in about three months, was held to be a contract of sale. On the other hand in Goddard v. Binney, supra, the contract with a carriage manufacturer was that he should make a buggy for the person ordering it, that the color of the lining should be drab, and the outside seat of cane, and have on it the monogram and initials of the party for whom it was made. This was held not to be a contract of sale within the statute. SALE OF GOODS. 157 See, also, Mixer v. Howarth, 21 Tick. 205, 32 Am. Dec. 2l)G; Lamb v. Cral'ts, 12 Mete. 353; Speucer v. Cone, 1 Mete. 283. The New York rule is still different. It is held here by a long course of decisions that an agreement for the sale of any com- modity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufac- turer, is not a contract of sale. The New York rule lays stress on the word "sale." There must be a sale at the time the con- tract is made. The latest and most authori- tative expression of the rule is found in a recent case in this court. Parsons v. Loucks, 48 N. Y. 17, 10, 8 Am. Rep. 517. The contrast between Parsons v. Loucks, in this state, on the one hand, and Lee v. Griffin, supra, in England, on the other, is that in the former case the word sale refers to the time of en- tering into the contract, while in the latter, reference is had to the time of deliver^-, as contemplated by the parties. If at that time it is a chattel it is enough, according to the English rule. Other cases in this state agreeing with Parsons v. Loucks are Crook- shank V. Burrell, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; Robertson v. Vaughn, 5 Sandf. 1; Parker v. Schenck, 28 Barb. 38. These cases are based on certain old deci- sions in England, such as Towers v. Os- borne, 1 Strange, 50G, and Clayton v. An- drews, 4 Burrows, 2101, which have been wholly discarded in that country. The case at bar does not fall within the rule in Parsons v. Loucks. The facts of that case were that a manufacturer agreed to make for the other party to the contract, two tons of book paper. The paper was not in existence, and so far as appears, not even the rags, "except so far as such existence may be argued from the fact that matter is indestructible." So in Sewall v. Fitch, su- pra, the nails which were the subject of the contract were not then wrought out, but were to be made and delivered at a future day. Nothing of this kind is found in the pres- ent case. The lumber, with the possible ex- ception of the clapboards, was nil in exist- ence when the contract was made. It only needed to be prepared for the purchaser- dressed and put in a condition to fill his or- der. The court accordingly is not hampered in the disposition of this cause by autliority, but may proceed upon principle. Were this subject now open to full discus- sion upon principle, no more convenient and easily understood rule could be adopted than that enunciated in Lee v. Griffin. It is at once so philosophical and so readily compre- hensible, that it is a matter of surprise that it should have been first announced at so late a stage in the discussion of the stat- ute. It is too late to adopt it in full in this state. So far as authoritative decisions have gone, they must be respected, even at the expense of sound principle. The court liow- ever in view of tlie present state of the law, should plant itself, so far as it is not pre- cluded from doing so by authority, up<»n some clearly intelligible ground, and intro- duce no more nice and perplexing distinc- tions. I think that the true rule to be ap- plied in this state, is that when the chattel is in existence, so as not to be governed by Parsons v. Loucks, supra, the contract should be deemed to be one of sale, even though it may have been ordered from a seller who is to do some work upon it to adapt it to the uses of the purchaser. Such a rule makes but a single distinction, and that is between existing and non-existing chattels. There will still be border cases where it will be difficult to draw the line, and to discover whether the chattels are in existence or not. The mass of the cases will however readily be classified. If, on further discussion, the rule in Lee v. Griffiu should be found most desirable as applicable to both kinds of transactions, a proper case will be presented for the consideration of the legislature. The view that this case Is one of sale is sustained by Smith v. Central R. Co., *43 N. Y. ISO, and by Downs v. Ross, 23 Wend. 270. In the first of these cases there was a con- tract for the sale and delivery of a quantity of wood, to be cut from trees standing on the plaintiff's laud. The court held that it could not be treated as an agreement for work and labor in manufacturing fire-wood out of standing trees. The cases already cited were distinguished in the fact that no change in the thing sold and to be delivered was contemplated, and that the transaction could be regarded as a sale in perfect con- sistency with the cases which hold that where the substance of the contract consists in the act of converting materials into a new and wholly different article, it is an agree- ment for work and labor. It was further considered that the case of Towers v. Os- borne, 1 Strange, 500, where an agreement for the manufacture of a chariot was a con- tract for work and labor, was extreme in its natui'e, and was not to be carried any fur- ther. Page 200. The cases of Garbutt v. Watson, 5 B. & Aid. G13, and Smith v. Sur- man, 9 B. & C. 501, were cited with ap- proval. In Garbutt v. Watson a sale of flour by a miller was held within the statute, although not ground when the bargain was made. In Downs v. Ross there was a contract for the sale of seven hundred and fifty bush- els of wheat, two hundred and fifty of the quantity being in a granary, and the residue unthreshed, but which the vendor agreed to get ready and deliver. The court held the contract to be within the statute of frauds, notwithstanding that the act of threshing was to be done by the vendor. The rule that governed the court was that if the 158 STATUTE OF FRAUDS. thing sold exist at the time in solido, the mere fact that something remains to be done to pnt it in a marlietable condition will not talie the contract out of the operation of the statute. Page 272. This proposition is in marlied contrast to the view expressed by Cowen, J., in a dissenting opinion. His the- ory was that where the article which forms the subject of sale is understood by the par- ties to be defective in any particular which demands the linishing labor of the vendor in order to satisfy the bargain, it is a contract for worli and labor and not of sale. The two theories (where the goods exist at the time of sale) have nowhere been more terse- ly and distinctly stated than in the conflict- ing opinions of Bronson and Cowen, JJ., in this case. See also Courtright v. Stewart, 19 Barb. 455. The fallacy in the proposition of Cowen, J., is in assuming that there is any "work and labor" done for the vendee. All the work and labor is done on the vendor's prop- erty to put it in a condition to enable him to sell it. His compensation for it is found in the price of the goods sold. It is a juggle of words to call this "a mixed contract of sale and work and labor." When the goods leave the vendor's hands and pass over to the vendee they pass as chattels under an executed contract of sale. While any thing remained to be done the contract was exec- utory There is abundance of authority for maintaining that a contract in its origin ex- ecutory may, by the performance of acts un- der its terms, by one of the parties, become in the end executed. Rohde v. Thwaites, 6 B. & C. 3S8, Benj. Sales, chap. 5, and cases cited. The case of Donovan v. Willson. 2G Barb. 138, and Parke v. Scheuck, 28 Barb 38, are to be upheld as falling within the principle of Parsons v. Loucks, supra. Both of these cases concerned articles not in existence, but to be produced by the manufacturer; in the one case beer was to be manufactured, and in the other a brass pump. So in Pas- saic Mauuf. Co. V. Hoffman, 3 Daly, 405, the contract was for the manufacture and deliv- ery of tifty warps. None of these were in existence when the order was received. While the case appears to fall within the rule of Parsons v. Loucks, the eminent judge who wrote an elaborate opinion ex- pressing the views of the court would seem to rely upon the Massachusetts rule rather than our own. Whatever view might be en- tertained of the soundness of that distinc- tion it is now too late to adopt it here, and the case cannot be sustained on that ground. The only case in our reports appearing to stand in the way of the conclusion arrived at in this cause is Mead v. Case, 33 Barb. 202. The court in that case recognized the distinction herein upheld. The only doubt about the case is whether the court coiTect- ly applied the rule to the facts. These were that several pieces of marble put together in the form of a monument were standing in the yard of a marble-cutter. That person agreed with a buyer to polish, letter and fin- ish the article as a monument, and to dis- pose of it for an entire price — $200. The court held that there was no monument in existence at the time of the bargain. There were pieces of stone in the similitude of a monument, and that was all. It is unnecessary to quarrel with this case. If unsound, it is only a case of a misapplica- tion of an established rule. If sound, it is a so-called "border case," showing the refine- ments which are likely to arise in applying to various transactions the rule adopted in Sewall v. Fitch, and kindred cases. It is proper however to say that the notion that such an arrangement of marble placed in a cemetery over a grave cannot be regarded as a monument, in the absence of an inscrip- tion, seems highly strained. Then there could not be a memorial church without an inscription. Then it could not have been said of Sir Christopher Wren, in his relation to one of his great architectural productions, "Si quteris monumentum, circumspice." It would seem to be enough if the monument reminds the passer-by of him whom it is in- tended to commemorate, and this might be by tradition, inscriptions on adjoining or neighboring objects, or otherwise. In the view of these principles, the defend- ants had the right to set up the statute of frauds. I think that this was so even as to the clapboards. Although not strictly in existence as clapboards, they fall within the rule in Smith v. Central R. Co. They were no more new products than was the wood in that case. There was simply to be gone through with a process of dividing and adapting existing materials to the plaintiffs' use. It would be difficult to distinguish be- tween splitting planks into clapboards, and ti'ees into wood. No especial skill is re- quired, as all the work is done by machinery in general use, and readily managed by any producers of ordinary intelligence. The case bears no resemblance to that of Parsons v. Loucks, where the product was to be created from materials in no respect existing in the form of paper. The cases would have been more analogous had the contract in that case been to divide large sheets of paper in- to small ones, or to make packages of en- velopes from existing paper. In Oilman v. Hill, 36 N. H. 311, it was held that a con- tract for sheep pelts to be taken from sheep was a contract for things in existence, and a sale. The next inquiry is, whether there have been sufficient acts done on the part of the buyers to comply with the statute. In order to properly solve this question, it is neces- sary to look more closely into the nature of the contract As has been already suggest- ed, the contract was in its origin executory. It called for selection on the part of the sell- ers from a mass of materials. At the time SALE OF GOODS. 159 of the bargain there was no sale. There was at most only an agreement to sell. The plaintiffs however laj- much stress on the fact that after the oral bargain and after the defendants had inspected the lumber, they gave directions, also oral, to the plain- tiffs to place the lumber after it had been made ready for delivery upon the dock and to give notice to Porcival. They urge that the subsequent compliance with these direc- tions by the plaintiffs satisfy the terms of the statute. It will be observed that all of these direc- tions were given while the contract was still wholly executory, and before any act of se- lection had been performed by the plaintiffs. It will thus be necessary to consider whetli- er these directions are sufficient to turn the executory contract of sale into an executed one, independent of the statute of frauds, and afterward to inquire whether there was any sufficient evidence of "acceptance and receipt" of the goods to take the case out of the statute. These questions are quite dis- tinct in their nature and governed by differ- ent considerations: (1) If the contract had been for goods less than ?50 in value, or for more than that amount, and ordered by the defendants in writing, it would still have been executory in its nature, and would have passed no specific goods. It would have been an agreement to sell and not a sale. The case would not have fallen within such authorities as Crofoot v. Bennett, 2 N. Y. 258, and Kimberly v. Patchin, 19 N. Y. 330. Since the goods could not have been identi- fied at all, except by the act of the seller in selecting such as would comply with the or- der, nor could the purposes of the contract have been performed except by the labor of the plaintiffs in adapting the goods to the defendants' use, the case falls within a rule laid down by Mr. Blackburn in his work on Sales (pages 151, 152): "Where, by the agree- ment, the vendor is to do any thing to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or as it is some times worded, into a deliverable state, the per- formance of these things shall, in the ab- sence of circumstances indicating a conti'ary intention, be taken to be a condition preced- deut to the vesting of the property." Acra- man v. Morrice, 8 C. B. 449; Gillett v. Hill, 2 C. & M. 530; Campbell v. Mersey Docks, 14 C. B. (N. S.) 412. Proceeding on the view that this was an executory contract, it might still pass into the class of executed sales by acts "of sub- sequent appropriation." In other words, if the subsequent acts of the seller, combined with evidence of intention on the part of the buyer, show that specific articles have been set apart in performance of the contract, there may be an executed sale and the prop- erty in the goods may pass to the purchaser. Blackburn, Sales, 12S; Benj. Sales, c. 5; Fragano v. Long, 4 B. & C. 219; Kohde v. Thwaites, 6 B. & C. 3SS; Aldridge v. John- son, 7 E. & B. 885; Calcutta, etc.. Company V. De Mattos, 33 L. J. (Q. B.) 214, in Exch. Cham. This doctrine requires the assent of both parties, though it is held that it is not necessary that such assent should be given by the buyer subseciuently to the ap- propriation by the vendor. It is enough that the minds of both parties acted upon the subject and assented to the selection. The vendor may be vested with an implied authority by the vendee to make the selec- tion and thus to vest the title in him. Browne v. Hare, 3 H. & N. 484; s. c, 4 H. & N. 822. This doctrine would be applicable to existing chattels where a mere selection from a mass of the same kind was requisite. On the other hand, if the goods are to be manufactured according to an order, it would seem that the mind of the purchaser after the manu- facture was complete, should act upon the question whether the goods had complied with the contract. See Mucklow v. Mangles, 1 Taunt. 318; Bishop v. Crawshay, 3 B. & C. 415; Atkinson v. Bell, 8 B. & C. 277. This point may be illustrated by the case of a sale by sample, where the seller agrees to select from a mass of products certain items cor- responding with the sample, and forward them to a purchaser. The act of selection by the vendor will not pass the title, for the plain and satisfactory reason, that the pur- chaser has still remaining a right to deter- mine whether the selected goods correspond with the sample. Jenner v. Smith, L. R. 4 C. P. 270. In this case the plaintiff at a fair orally conti-acted to sell to the defendant two pockets of hops, and also two other pockets to correspond with a sample, which were lying in a warehouse in Loudon, and which he was to forward. On his return to Lon- don, he selected two out of three pockets which he had there, and directed them to be marked to "wait the buyer's order." The buyer did no act to show his acceptance of the goods. The court held that the appro- priation was neither originally authorized nor subsequently assented to by the buyer, and that tlie property did not pass by the contract. Brett, J., put in a strong form the objection to the view that the buyer could have impliedly assented to the appropriation by the seller. It was urged, he said, "that there was evidence that by agreement be- tween the parties, the purchaser gave author- ity to the seUer to select two pockets for him. If he did so, he gave up his power to object to the weighing and to the goods not cor- responding with the sample; for he could not give such authority and reserve his right to object, and indeed it has not been contend- ed that he gave up those rights. That seems to me to be couclusive to show that the de- fendant never gave the plaintiff authority to m:ike the selection so as to bind him. Un- der the circumstances therefore it is impos- sible to say that the property passed." Page 27S. The same general principle was main- i60 STATUTE OF FRAUDS. tained in Kein v. Tupper, 52 N. Y. 550, where U was held that the act of the vendor put- uug the goods in a state to be delivered did aot pass the title, so long as the acceptance )t the vendee, provided for under the terms of the contract, had not been obtained. The result is, that if this sale, executory as it was in its nature, had not fallen within the statute of frauds, there would have been no sutficient appropriation by the vendor to pass the title. The transaction, so far as it went, was even at common law an agree- ment to sell and not an actual saie. (2) But even if it be assumed that this would have been an executed contract of sale in its own nature, without reference to the statute of frauds, was there "an accept- ance and a receipt" of the goods, or a part of them, by tJie buyer, so as to satisfy the stat- ute? The acceptance and receipt are both neces- sai-y. The contract is not valid unless the buyer does both. These are two distinct things. There may be an actual receipt without an acceptance, and an acceptance without a receipt. The receipt of the goods is the act of taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often an evidence of an ac- ceptance, but it is not the same thing. In- deed the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. Blackb. Sales, lOG; see Brand v. Focht, 3 Keyes, 409; Stone v. Browning, 51 N. Y. 211. There are some dicta, of various judges, cited by the plaintiffs to the effect that ac- ceptance and receipt are equivalent. Per Crompton, J., and Cockburn, Ch. B., in Cas- tle V. Sworder, 6 H. & N. 832; per Erie, C. J., in Mai-vin v. Wallis, 6 E. «& B. 726. These remarks cannot be regarded as of any weight, being contrary to the decided current of au- thority. Indeed a late and approved writer says: "It may be confidently a.ssumed how- ever that the constniction which attributes distinct meanings to the two expressions, "ac- ceptance' and 'actual receipt,' is now too firmly settled to be treated as an open ques- tion, and this is plainly to be infen-ed from the opinions delivered in Smith v. Hudson." 6 B. «fe S. 43G; Benj. Sales. It cannot be conceded that there was any acceptance in the present case by reason of the acts and words occurring between the parties after the parol contract and before the goods were prepared for delivery. There could be no acceptance without the assent of the buyers to the articles in their changed condition, and as adapted to their use. If the case had been one of specific goods to be selected from a mass without any preparation to be made, and nothing to be done by the vendor but merely to select, the matter would have presented a very different aspect. This distinction ia well pointed out by Willes, J., in Bog Lead Min. Co. v. Montague, 10 C. B. (N. S.) -ISl. In this case the question turned upon the meaning of the word "acceptance," in another statute, but the court proceeded on the analogies supposed to be derived from the construction of the same word in the statute of frauds. The question was as ta what was necessary to constitute an "ac- ceptance" of shares in a mining company, un- der 19 & 20 Vict. c. 47. The court having likened the case to that of a sale of chattels, said: "It may be that in the case of a con- tract for the purchase of unascertained prop- erty to answer a particular description, no acceptance can be properly said to take place before the purchaser has had an oppoitimity of rejection. In such a case, the offer to purchase is subject not only to the assent or dissent of the seller, but also to the condition that the property to be delivered by him shall answer the stipulated description. A right of inspection to ascertain whether such con- dition has been complied with is in the con- templation of both parties to such a conti-act; and no complete and final acceptance, so as irrevocably to vest the property in the buy- er, can take place before he has exercised or waived that right. In order to constitute such a final and complete acceptance, the assent of the buyer should follow, not pre- cede, that of the seller. But where the con- tract is for a specific, ascertained chattel, the reasoning is altogether different. Equal- ly, where the offer to sell and deliver has been first made by the seller and afterwards as- sented to by the buyer, and where the offer to buy and accept has been first made by the buyer and afterwards assented to by the seller, the contract is complete by the assent of both parties, and it is a contract the expression of which testifies that the sell- er has agreed to sell and deliver, and the buyer to buy and accept the chattel." Pages 489, 490. This view is confirmed by Maberley v. Shep- pard, 10 Bing. 99. That was an action for goods sold and delivered, and it was proven that the defendant ordered a wagon to be made for him by the plaintiff, and, during the progress of the work, furnished the iron work and sent it to the plaintiff', and sent a man to help the plaintiff in fitting the iron to the wagon, and bought a tilt and sent it to the plaintiff to be put on the wagon. It was insisted, on these facts, that the defend- ant had exercised such a dominion over the goods sold as amounted to an acceptance. The court, per Tindal, C. J., held that the plaintiff had been rightly nonsuited, because the acts of the defendant had not been done after the wagon was finished and capable of delivery, but merely while it was in progress, so that it still remained in the plaintiff's yard for further work until it was finished. The court added: "If the wagon had been com- pleted and ready for delivery and the de- fendant had then sent a workman of his own to perfoiTH any additional work upon it, su'h SALE OF GOODS. 161 conduct on the ijait of the defendant mit;ht have amounted to an acceptance." See also Benj. Sales, c. 4, and cases cited. The plaintiffs, in the case at bar, rely much upon the decision in Morton v. Til:)bett, 15 Ad. & El. (N. S.) 428. Thoy maintain that this case clearly establishes that there may be an acceptance and receipt of goods by a purchaser, within the statute of frauds, al- though he has had no opportunity of exam- ining them, and although he has done noth- ing to preclude himself from objecting that they do not correspond with the contract. The expressions in :Mortou v. Tibl>ett are not to be pressed any further than the facts of the case require. The buyer of wheat by sample had sent a carrier to a phice named in a verbal contract between him and the seller on August 25. The wheat was received ou board of one of the carrier's lighters for conveyance by canal to Wi-sbeach, where it arrived ou the 2Sth. In the mean time it had been resold by the buyer, by the same sample, and was returned by the second pur- chaser because foimd to be of short weight. The defendant then wrote to the plaintiff on the 30th, also rejecting it for short weight. An action was brought for goods bargained and sold. There was a verdict for plaintiff, with leave to move for a nonsuit. The ques- tion for the appellate court was, whether there was auj' evidence that the defendant had accepted and received the goods so as to render him liable as buyer. The court held that the acceptance under the statute was not an act subsequent to the receipt of the goods, but must precede, or at least be con- tempoi'aneous with it; and that there might be an acceptance to satisfy the statute, though the purchaser might on other grounds disaffirm the contract. Morton v. Tibbett decides no more than this, viz., that there maj' be a conditional acceptance. It is as if the purchaser had said: "I take these goods on the supposi- tion that thej' comply with the contract. I am not bound to decide that point at this moment. If, on examination, they do not correspond with the sample, I shall still return them under my common-law right, growing out of the very nature of the con- tract, to declare it void, because our minds never met on its subject-matter— non in haec foedera veni." It is not necessary to decide whether this distinction is sound. It is enough to say that it is Intelligible. The case. In no respect, decides that there can be an acceptance under the statute of frauds without a clear and distinct intent, or that unfinished articles can be presumed to be accepted before they are finished. The act of acceptance was clear and unequivocal. There was a distinct case of interraoddliug with the goods in the exercise of an act of ownershii) — a fact entirely wanting in the case at bar. The proof of acceptance was the act of resale before examination. The point of the decision is, that this was such an ex- HOPK. SEL. CAS. CONT. — 1 1 ercise of dominion over the goods an Is In- consistent with a continuance of the rights of property in the vendor, and therefore evi- dence to justify a jury in finding acceptance as well as actual receipt by the buyer. Hunt V. Hecht, 8 Exch. 814. Even when interpreted in this way, Mor- ton V. Tibbett cannot be regarded as abso- lutely settled law in England. See Coombs V. Bristol 4S: Exeter Ry. Co., 3 II. & N. 510; Castle V. Sworder, 6 H. & N. 828. The court of queen's bench recognizes it, vrhile the court of exchequer has not received it with favor. Later cases distinctly hold that the acceptance must take place after an op- portunity by the vendee to exercise an op- tion, or after the doing of some act waiving it. Bramwell, B., said in Coombs v. Bristol & Exeter Ry. Co.: "The cases establish that there can be no acceptance where there can be no opportunity for rejecting." All the cases were reviewed in Smith v. Hud- son, 6 Best & Smith, 431 (A. D. 1SG5), where Hunt V. Hecht was approved. The two last cited cases disclose a principle applica- ble to the case at bar. In Hunt V. Hecht the defendant went to the plaintiff's warehouse and there inspect- ed a heap of ox bones, mixed with others inferior in quality. The defendant verbally agreed to purchase those of the better quali- ty, which were to be separated from the rest, and ordered them to be sent to his wharfinger. The bags were received on the 9th, aiid examined next day by the defend- ant, and he at once refused to accept them. There was held to be no acceptance. The case was put upon the ground that no ac- ceptance was possible till after separation, and there was no pretense of an acceptance after that time. Martin, B., said that an ac- ceptance, to satisfy the statute, must be something more than a mere I'eceipt. It means some act done after the vendee has exercised or had the means of exercising his right of rejection. In Smith v. Hudson, supra, barley was sold on November 3, 1SG3, by sample, by an oral contract. On the 7th it was taken by the seller to a railway station, where he had delivered grain to the purchaser on several prior dealings, and where it was his custom to receive it from other sellers. The barley was left at the freight-house of the railway, consigned to the order of the purchaser. It was the custom of the trade lor the buyer to compare the sample with the bulk as delivered, and if the examination was not satisfactory, to reject it. This right continued in the present case, notwithstand- ing the delivery of the grain to the railway company. On the 9th the purchaser became bankrupt, and on the 11th the seller notified the station-master not to deliver the barley to the purchaser or his assignees. The court held that there was no acceptance sulficient to satisfy the statute. The most that could be said was, that the delivery to the com- 16:: STATUTE OF FRAUDS. pany, considered as an agent of the buyer, was a receipt. It could not be claimed that it was an acceptance, the carrier having no implied authority to accept. The buyer had a right to see whether the bulk was accord- ing to the sample, and until he had exercis- ed that right there was no acceptance. Opin- ion of Cockburn, Ch. J., 440; see, also. Caul- kins V. Hellman, 47 N. Y. 449; Halterline v. Rice, 62 Barb. 593; Edwards v. Grand Trunk Ry. Co., 4S Me. 379, 54 Me. 111. The case at bar only differs from these cases in the immaterial fact that the defend- ants, after the verbal contract was made, gave verbal directions as to the disposition which should be made of the goods after they were put into a condition ready for delivery. All that subsequently passed be- tween them was mere words, and had not the slightest tendency to show a waiver of the right to examine the goods to see if they corresponded with the contract. Whatever effect these words might have had in indicat- ing an acceptance, if the goods had been spe- cific and ascertained at the time of the di- rections (see Cusack v. Robinson, 1 Best & S. 299), they were without significance under the circumstances, as the meeting of the minds of the parties upon the subject to be settled was necessary. Shepherd v. Pressey, 32 N. H. 57. In this case the effect of subbe- quent engagements by the buyer was passed upon as to their tendency to show a receipt of the goods by him. The court said: "As mere words constituting a part of the origi- nal contract do not constitute an acceptance, so we are of opinion that mere words after words used, looking to the future, to acts afterward done by the buyer toward carry- ing out the contract, do not constitute an acceptance or prove the actual receipt re- quired by the statute." The case was stron- ger than that under discussion, as the goods were specific and fully set apart for the pur- chaser at the time of the subsequent con- versations. No distinction is perceived be- tween future acts to be done by the buyer and by the seller, as both equally derive their force from the buyer's assent. I see no reason in the case at bar to hold that the defendants received the goods, in- dependent of the matter of acceptance. There was no evidence that Percival became their agent for this purpose. The most that can be said is that they promised the plain- tiffs that they would make Percival their agent. This promise being oral and connect- ed with the sale, is not binding. They did not in fact communicate with him, nor did he assume any dominion or control over the property. The promissory representations of the plaintiffs are clearly within the rule In Shepherd v. Pressey, supra. The whole case falls within the doctrine In Shindler v. Houston, 1 N. Y. 261, there being no sufficient act of the parties amount- ing to transfer of the possession of the lum- ber to the buyer and acceptance by him. The judgment of the court below should be affirmed. Ail concur. Judgment affirmed. SALE OF GOODS. 163 PRATT et al. v. MILLER et al. (18 S. W. 965, 109 Mo. 78.) Supreme Court of Missouri, Division No. L March 14, 1892. Appeal from circuit court, Johnson coun- ty; CiiAiti.KS W. Sloan, .ludRo. Action by Pratt, Warren & Co. aRoinst Miller & Hel)«,'rlinK to recover the price of a bill of goods ordered by defendants, but not accepted. From a judRinent of the Kansas f'ity court of appeals allirrainjz a judgment for plaintiffs, defendants appeal. Reversed. S. p. Sparks, for appellants. 5. T.Allen, for respondents. BR/VCE, J. This is an appeal from the Johnson circuit court to the Kansas City ' court of appeals, certilied here from the latter court (jn the ground tiiat the con- clusion reached by that court is in conllict vvitii the decision of the St. Louis court of a()peals in Burrell v. Highleyman, 83 Mo. App. 183. Plaintiffs' cause of action, set out in the petition, is that the defendants ordered and requested plaintiffs to manu- facture for and furnish to them divers goods, wares, and merchandise, being boots and shoes, of which an itemized ac- count, the price amounting to f 205. 4.5, is filed; that plaintiffs accepted said order, manufactured said goods, and shipped and tendered them to defendants, who refused to pay for them. The defendants' answer was a denial of the material alle- gations of the petition, a plea of the stat- ute of frauds, a warranty of quality and breach thereof. The evidence tended to show that the plaintiffs are wholesale dealer.^ in boots and shoes in the city of Boston, Mas^., and that they are either themselves manufacturers, or have manu- factured for them their stock in trade; that the defendants were retail merchants in llolden, Mo.; that on the 31st of May, 1N77, the defendants, at Holden, gave the commercial traveler and solicitor of plain- tiffs a verbal order for the bill of goods sued for; that the solicitor made a memo- randum of the order in writing, signed it himself, gave a copj' to the defendants, and forwarded it to the plaintiffs, who thereafter proceeded to have the goods made; that on the Sth of July the defend- ants wrote the plaintiffs, countermanding the order, and again on the 2sth to the same purport. On the 29th of July, plain- tiffs replied to defendants' letter of the Sth, refusing to accept the countermand, and advising the defendants that the goods would bo shipped at the time named in the order; and, on the 13th of August, they shipiied the goods, addressed to the defendants at Holden, Mo., where they arrived, and defendants refused to receive or pay for them. There was no evidence tending to show that the goods were not of the quality contracted for; and the de- fendants refused to receive the goods, not on account of defect in quantity or qual- ity, but for the reasons assigned in their letters, which was a dissolution of their partnership, in the first letter, and the excessive drought prevailing in the coun- tr3', curtailing trade, in their second. The court refused an instruction asked for by the defendants in the nature of a demurrer to the evidence, and submitted the case to the jury on the following instruction for the i)lMintiffs: "The court instructs tlie jury that if they believe from the evith-nce that the defendants ordered plaintiffs t,) Dwigiit, J., remarks: " Were this subject now open to full discussion on principle, no more con- venient and easily-understood rule could be adopted th'an that enunciated in Lee v. Griffin. It is at once so philosophical and so readily comprehensible that it is a mat- ter of surprise that it should have been first announced at so late a stage in the discussion of the statute. It is too late to adopt it in full in this state. So far as au- thoritativedecisions have gone, they must be respected, even at the expense of sound principles. " In Marvland, in Eichelberger v. Mc- Cauley, 5 Har. & J. 213, (decided in 1821,) the rule of the earlier English decision.s was maintained; Eahle, J., in delivering the opinion of the court, saying: " What- ever opinion may be entertained of the true meaning of the seventeenth section of the statute, the court thinks the distinc- tion between mere contracts of sale of goods and those contracts for the sale of goods where work and labor is to be be- stowed on them previous to delivery, and subjects are blended together, some of which are not in contemplation of the statute, has too Jong prevailed to be at this day questioned." Citing the English cases of Clayton v. Andrews, (decided in 17(57,) and Rondeau v. Wyatt, (in 1792,) in support of the conclusion. In the later case of Rentch v. Long, 27 Md. 188, the ruling in Eichelberger v. McCauley was affirmed; Baktol, J., speaking for the court, saying: "Whatever o[)inion we might entertain on this question if it were presented for our consideration for the first time, we are not willing to disturb the rule established by that case." It will be observed that the rule of construction established in these states is not maintained in the later case upon the ground of sound principle, nor yet upon the ground that the courts were concluded by the early English rul- ings made before the statute was enacted in those states, but upon the ground that, those rulings having received a particular construction by their own courts in their early rulings, they felt constrained to maintain them, to the ex- tent stated, on the principle of stare de- cisis. In most of the other states where the courts were not thus fettered, while the rulings cannot be said to go the length of that in Lee v. Griffin, which is now the settled rule in England, they trend in that direction. As illustrative of this fact the following cases may be cited: Mixer v. Howarth, 21 Pick. 205; Spencer V. Cone, 1 Mete. (Mass.) 28;j; Gardner v. Joy, 9 Mete. (Mf^ss.) 177; Lamb v. Crafts, 12 Mete. (Mass.) 3.'):5; Goddard v. Binney, 115 Mass. 450; Pitkin v. Noyes. 48 N. H. 294; Prescott v. Locke, 51 N. H. 94; Atwater v. Hough, 29 Conn. 508; Fin- ney v. Apgar, 31 N. J. Law, 20(5; Cason v. Cheely, Ga. 554; Edwards v. Railway Co., 48 Me. 379 ; Sawyer v. Ware, 36 Ala, 675 ; Mo.ncke v. Falk, .55 Wis. 427, 13 N. W. Rep. 545; Brown V. Sanborn, 21 Minn. 402. In many of these cases, rules are laid down for distinguishing a contract of sale from one for work and labor and materials, not always harmonious or entirelj' con- sistent with each other, but from whict? a general rule may be drawn, broadly stated as well in Brown on Frauds as elsewhere: "That if the contract is essen^ tially a contract for the article manufact- ured or to be manufactured the statu t«> SALE OF GOOD>^. 165 applies to it. If it is for tlie \vorI<, Ifibor, and skill to be htstowcd in producing tlie article, the statute does not apply; • * • the true qncstion i)einji whether the essential consideration of the j)ur- chase is the worlc and labor of the seller, to bo a[)yjlied upon his material, or the product itself, as an article of trade." Sections .30X,.'U)Sifl. And, within the f;:eneral scope of the American authorities, this ri!;8 may be formulated, determinative of the case in hand: That where tlie contract is for articles cominj; under the general de- nouiinaticin of goods, wares, and mer- chandise, the vendor being at the same time a manufacturer and a dealerin them, as a merchant, or, so dealing, lias them manufactured for his trade by others, and the vendee being also a merchant dealing in and pui'chasing the same line of goods for his trade, of which fact the vendor is aware, the quantitj' reqtiired and the price being agreed upon, and the goods contracted for being of the same general line which the vendor manufactures or has manufactured for his general trade as a merchant, requiring the bestowal of no peculiar care or personal skill, or the use of material or a plan of construction different from that obtaining in the ordi- nary production of such manufactured goods for the vendor's general stock in trade, the contract is one of sale, and within the statute of frauds, although the goods are not in solido at the time of the contract, but are to be thereafter made and delivered. This rule, predicated upcju the undisputed facts of this case, is with- in the ruling in Burrell v. Highleyman, by the St. Louis court of appeals, and in conflict with tlie conclusion reached by the Kansas City court of appeals. And, while sufficient for the disposition of this case, it is proper to add generally, this be- ing the first time tliis court has been called upon to pass upon this question directly, that while we adhere to the rulings here- tofore made in Skouton v. Woods. 57 Mo. :{S0; Skrainka v. Allen, 76 Mo. 384; and Snyder v. Railroad, 86 Mo. 6i:j, — in adopting the statute of another state te the purchase, the prop- erty was sold by the plaintiffs at public auc- tion, pursuant to the notice; and the suit was brought by them to recover the differ- ence between the net proceeds of such sale and the contract price. A verdict was tak- en, subject to the opinion of the court, on a case containing the facts above stated, and which either party was to be at liberty to turn Into a special verdict. On the argument of the case In the su- preme coui"t, Mr. Baldwin, one of the coun- sel of the defendants, among other ques- tions, raised the point, on the authority of Champion v. Plummer, 4 Bos. &. P. 252, that a memorandum signed by the seller only was not sufficient; that the plaintiffs were not bound thereby, and if they were not, neither could the defendant be bound. PLatt, J., In delivering the opinion of the court, stated that the only point was whether the memorandum made by John Townsend was a sufficient memorandum of the con- tract, within the statute of frauds, to bind the defendant; and after expressing an opinion on other questions presented by the case than that raised by Mr. Baldwin as above stated, as to which he said nothing, he came to the conclusion that the memoran- dum stated with reasonable certainty, every essential part of the agreement, and that the plaintiffs were entitled to judgment. The case was carried to the court for the correction of errors on a special verdict find- ing the facts above stated (with two other causes in which the facts, so far as affected the questions involved, were substantially the same), and is reported In 14 Johns. 484, imder the title of Executors of Clason v. Merritt; and one of the other cases is by same plaintiffs in error against Bally, and that case is the one particularly referred to in the opinion of the court. In that court the point was raised on the part of Clason's executors, that the agreement wus not sign- ed by both parties; and Chancellor Kent, in giving the opinion of the court, said: "Clason's name (that of the purchaser) was Inserted In the contract by his authorized agent; and if it were admitted that the name of the other party was not there by their direction, yet the better opinion is that Clason, the party who is sought to be char- ged, is estopped by his name from saying that the contract was not duly signed with- in the purview of the statute of frauds, and that it was sufficient if the agreement was signed by the party to be charged," adding: "It appears to me that this is the result of the weight of authority, Doth in the courts of law and equity;" and after review- ing several cases in both courts sustaining that result, he said: "There was nothing to disturb the strong and united current of au- thority of those cases, but the observations of Lord Chancellor Redesdale, In Lawreu- son V. Butler, 1 Schoales & L. 13, who thought that the contract ought to be mutu- al to be binding, and that If one party could not enforce it, the other ought not; and said that to decree performance when one party only was bound, would "make the statute really a statute of frauds, for it would enable any person who had procured another to sign an agreement to make it depend on his own will and pleiusure whether it shoiild be an agreement or not" He then after remarking that the intrinsic force of the argument, the boldness with which It was applied, and the commanding weight of the very respectable character who used it, caused the courts for a time to pause, but that they had on further consideration resumed their former track, and citing au- thorities on both sides of the question, added: "I have thought and have often intimated, that the weight of argument was in favor of the constniction that the agreement con- cerning lands, to be enforced in equity, should be mutually binding, and that the one party ought not to be at liberty to en- force at his pli'asure, an agreement which the other was not entitled to claim. It ap- pears to be settled (Hawkins v. Holmes, 1 P. Wms. 770), that though the plaintiff has signed the agreement, he never can enforce it against the party who has not signed it The remedy therefore In such case is not mutual. But notwithstanding this objec- tion, it appears from the review of the cases, that the point is too well settled to be now questioned." He then says: "There Is a slight variation in the statute respecting agreements concerning the sale of lands, and agreements concerning the sale of chattels, inasmuch as the one section (being the fourth section of the English and the eleventh section of our statute) speaks of the pai-ty, and the other section (being the seventeenth of the English and the fifteenth of ours) speaks of the 'parties' to be charged; but I do not find from the cases that this variation has produced any difference in the decisions. The construction as to the point under consideration has been uniformly the same in both cases;" and after the full dis- cussion and consideration of this question he comes to the conclusion that "Clason who signed the agreement, and is the p.arty sought to be charged, is then, according to the authorities, bound by the agreement, and he cannot set up the statute in bar;" adding, "but I do not deem It absolutely necessary to place the cause on this ground, though as the question was raised and discussed. 1 thought it would be useful to advert to the most material cases, and to trace the doc- trine through the course of authority." He then says that In his opinion "the ob- jection Itself is not well founded In point of fact;" and after a reference to the memo- randum and its contents, and the facts found by the special verdict, he concludes that the contract was. In judgment of law. reduced to writing and signed by both parties. Another objection taken by Clason in the 192 STATUTE OF FRAUDS. supreme court axid by the executors in the court for the correction of errors, to the validity of the contract (not material to the case now under review), was then consider- ed by the learned chancellor, and held to be untenable; and thereupon the judgment of the supreme court was affirmed (two sena- tors dissenting). It may be important in this connection to advert to the fact that this opinion was de- livered in 1817, nea:iy nine years after what was said by him as chief justice in Bailey V. Ogden, supra, and about three years after the intimations made by him in Parkhurst V. Van Coi-Uandi, 1 Johns. Ch. 282, and Benedict v. Lynch, Id 370, to the effect that an agreement concerning lands, to be enforced in equity, should be mutually bind- ing, and to which he probably had refer- ence in that opinion, and as to which he said therein, that it appeared from the view of the cases that the point was too well set- tled to be then questioned. Although, in view of the conclusion ar- rived at by the learned chancellor on the other point (that the contract was, in judg- ment of law, reduced to writing and signed by both parties), it was not, as he himself stated, absolutely necessary to place the cause on the groimd first discussed and con- sidered by him as above mentioned; yet as it was raised by the facts found by the special verdict, on which the supreme court had given judgment, and on the argument in the court for the correction of errors, it was material that it should be considered by him. He remarked, in the commence- ment of that opinion, that the case struck him on the argument as being plain; but as it may have appeared to other members of the court in a different, or at least in a more serious light, he deemed it proper and necessary to state the reasons for his opin- ion on both the questions subsequently ex- amined and discussed by him. It, as it appears to me, is a perversion of terms and an entire misconception of the effect and force of the able and elaborate opinion of that learned and distinguished jurist, to characterize or treat it as a mere obiter dic- tum. Gardiner, J., in James v. Patten, G N. Y. 9, in which it had been claimed by comisel that a case cited on the argument in sup- port of, and indeed decisive of, the question then under review and consideration, might have been decided on other grounds than those stated in the prevailing opinion on that point, said: "We are now gravely informed that it was possible to reverse the judgment upon other grounds. The effect of any de- cision in a court composed of more than a single judge might in this way be avoided. But when two questions are presented to the appellate court, upon which their deci- sion is asked, both of which are discussed by counsel, and each is considered and de- termined in the only opinions read in the hearing of the members, the majority must be deemed to acquiesce in the conclusions upon those questions reached in those opin- ions, unless some one dissents. With a dif- ferent rule there could be no such thing as the establishment of a principle by the court of last resort, when more than a single point was pre.sented." And Paige, J., said in the same case: "Where several questions arise in a cause and the opinions delivered agree in regard to all of them, and the other mem- bers give a silent vote of concurrence, then all the questions will be deemed to have been determined by a majority of the court, and the case will be regarded and respected as an authoritative adjudication of all such questions." In the case of Exocutoi-^ of Clason v. Baily, supra, the opinion of the chancellor was the only one delivered, and must be held to be an authority of the court of last resort on the very question now presented for our de- cision and adjudication. The question again aix>se in the supreme court in 1829, in Russell v. Nicoll, 3 Wend. 112, 20 Am. Dec. 670, which was an action by the plaintiffs claiming damage for the non-delivery of a quantity of cotton alleged to have been purchased by them of the de- fendants. The contract was substantially in all essen- tial particulars like the one in the present case. It was in these words: "Sold by Daniel Rapalye, for our account, to R. M. and J. Russell five hundred bales of cotton, at sixteen and a half cents per pound. Said cotton was purchased for our account at Huntsville, and is to be delivered, on its arrival at this port from New Orleans, at any time between the present date and the first day of June next, and the amovmt to be cash on delivery, to be reweighed, and two per cent tare allowed. "New York. Febmary 9, 1825. "Francis H. NicoU & Co." The plaintiffs were nonsuited on the trial at the circuit, on grounds other than that now under consideration. But on the re- view of the case by the supreme court, the counsel for the defendants stated that the plaintiffs, if an, action had been brought against them on the contract, might have interposed the statute of frauds as a defense, they not having signed any note or memo- randum in writing of the bargain; and, the agreement produced being signed only by the defendants, that the plaintiff could not have been holden, and the defendants were not boimd, and that, though this objection was not taken at the circuit, the court woiild not grant a new trial if they perceived that the plaintiffs mu.st be nonsuited on that ground; as to which point the court, by Marcy, J., said, in the commencement of his opinion: "It was insisted on the argu- ment that the contract declared on was within the statute of frauds, and void for THE MEMORANDUM IN WUITING. 193 not being reduced to writing and signed as the statute directs. This objection is not sustainable. If the contract be within the statute, it is very clear that the signing by the defendants is a compliance with its re- quirements. Egerton v. Mathews, G East, 307; Saunderson v. Jackson, 2 Bos. & P. 238." Tlie question was thus distinctly raisefl and d<^eided in the supreme court, and the decision is a distinct and positive authority thereon. If the objection had been well founded, it would have been decisive against the plaintiffs' right of recovery, and there would have been no necessity to consider tlie questions raised at the circuit, and which were afterward elaborately discussed in the opinion. Those questions were based on the assumption that the contract was valid Mild obligatorj' on the defendants. The cir- cumstance that the question arising on the statute of frauds was not raised at the cir- cuit does not impair, or in the least weaken, the effect of the decision thereon by the su- preme court. On the contrary, it shows that the eminent counsel for the defendants did not at that time deem it available and ef- fectual, and they proljably presented it in opposing the motion to set aside the nonsuit, on the principle that they would not then fail to present and urge any point on which the nonsuit might be sustained or supported The next case referred to by the counsel was that of Dykers v. Towusend, 24 N. Y. 57, etc. That was an action to recover dam- ages for the failure of the defendant to re- ceive any pay for one thousand one hundred shares of the capital stock of the New York and Erie Railroad Company, purchased un- der three several contracts, one of which is set forth in the ease, and is in the follow- ing foiTo: "New York, May 2d, 1854. "I have purchased of Dykers, Alstyne & Co. 500 shares of the New York and Erie Railroad Company at seventy (70) per cent, and deliverable in sixty days, buyer's option, with interest at the rate of six per cent per annum. W. S. Hoyt" The other two were in the same form, ex- cept that one of them was signed by one Brown. It was alleged and proved on the trial that Hoyt and Brown were brokers, and acted as the agents of the defendant in making the contract. When the plaintiff rested, the defendant moved to dismiss the complaint, on the grounds that the contracts were signed by Brown and Hoyt in their own names, and that the name of the defendant nowhere appeared upon them; that parol evidence could not be introduced to show that the de- fendant was the person for whose benefit the contracts were made, and that tlie plain- tiffs had not shown any valid contract be- tween themselves, and the defendant took an exception. Proof was then offered of cer- UOPK. SEL. CAS. CONT. — 13 tain facts for the purpose of showing the contract void under the stock-jobbing act, in force at the time of the sale, which was re- jected, and the defendant took an exception. The plaintiff recovered a verdict, and judg- ment thereon was rendered at general term, in the First district, which, on an appeal to this court, was affirmed without any dissent to such alhrniance. One of the judges, Sel- den, J., was absent, and another, James, J., expressed no opinion. That decision, so far as it affects the present question, gives no color for sustaining the judgment in the case now under review. It is true that Judge Hoyt, in giving las opinion for its athrmance, remarked that as an original question, he should have had no hesitation in saying, In a ease where the contract was entirely ex- ecutoiy on both sides, and no part of the consideration had been paid, that it was nec- essary that it should be in writing, under the statute, and be signed by both parties there- to, or their agents, in order to be binding upon either; or, in other words, there being no considei-ation paid, the promise of one party would be the consideration for the promise of the other, and that both must be in writing to charge either; and after re- ferring to the distinction between the sec- tion of the statute applicable to that case and section 8, relating to a contract for the- sale of land, which he concedes, on the au- thority of this court, in Worrall v. Munn, 5 N. Y. 244, Is only required to be signed by the party by whom the sale is to be made, and after adding that in the case of a con- tract for the sale of goods, he should say the party to be charged means the vendor upon his contract to seU, and the vendee upon his contract to accept and pay for the goods, he added that this question did not appear to have been directly raised on the trial; if it had been, it might, perhaps, have been obviated by the profluction of a counterpart of the contract, signed by the plaintiffs, and then said: "As there are several authorities which seemingly, at least, give a different construction to this and similar provisions in the former statute of frauds, I do not pn^x)se further to discuss the question at this time." And after a more particular reference to the requirements of the statute, he concludes with the remark: "In this case, a note or memorandum of the contract was made In writing, and signed by the lawful agent of the defendant, and we think that this was sufficient compliance with the statute, ac- cording to the settled construction that has been given to it." The only other ease referred to by the re- spondent's coimsel, on this question, was that of Brabin v. Hyde, 32 N. Y. 519, which he says decided that the memorandum must be signed by both parties. This is clearly a mis- take. The action was brought by the plaintiff to recover the possession of a mare and colt, which he claimed as owner, by purchase 194 STATUTE or FRAUDS. from one Milton Blackmer in Au^iist, lSo7; and whicli, on the tliird day of September next thereafter, the defendant took from his possession, under a claim that he owned them under a purchase from the same ven- dor in the month of July preceding. The plaintiff recovered a verdict, on which judg- ment was entered. That judgment was re- versed by the general term on appeal, and the plaintiff thereupon appealed to this court. The judge on the trial in his charge to the jury, after stating tliat the defendant had given evidence of a prior bargain, and that it was objected by the plaintiff that the contract under which he claimed ownership was void by the statute of frauds, read and explained the statute, and then cliai-ged, "that according to the defendant's nan-ative of facts, the contract rested solely in words. There was no other evidence of it; there was no deliveiy of the property or memo- randum made, as the contract was narrated by him. nor any payment, nor was the prop- erty present at any time, or any thing to save it from the statute of frauds. I advise you that the contract for the purchase of the horse by the defendant, as narrated by him- self,- is invalid." To which there was an exception. When the case was reviewed by this court. Brown, J., in giving the opinion on the reversal of the order of the general term granting a new trial, referred to the facts detailed in the narrative of the defend- ant; and from the learned judge's statement of them, it appeared that a part of the price, agreed to be paid by the defendant for the mare and colt, was to be credited on his books when he got to his house, on account of a debt owing and due to him from Black- mer; that he went home and made the en- try in his book, giving him credit on the day of the purchase for the amount that was to be so credited. It was an original entry. On his cross-examination, it further appeared that he kept a day-book and a ledger, for the purposes of his business; that the entries to Blackmer's credit were not upon those books, or in any account of his daily transactions; and that all that appeared upon any book was an entry made of the mare and colt upon a blank leaf, on which there were no other entries. It was not claimed that he gave Blackmer any receipt, or discharge for the money for the mare and colt, or that he communicated to him what he had done. There were some additional facts stated, for the purpose of showing a delivery of the mare and colt, which are immaterial to be noticed here, and the learned judge, after the conclusion of his .statement of the facts, said: "These are the facts upon which the defend- ant relied to take the case out of the statute of frauds. There was no deliveiy of the property to the purchaser, and no memoran- dum of the sale signed by the parties;" and then, after stating the charge to the jury as above set forth, and making some general re- marks on the insufficiency of words merely, and the necessity of acts as evidence of a purpose to part with, or to accept, the own- ership of personal property, he said: "There must have occiirred one of the three acts mentioned in the statute, or the sale will not bo affected. These acts are not to be performed by one party only, they are to be concurred in by both parties to the con- tract. If the memorandum in writing is re- lied upon, it must be signed by the parties, not the party, to be charged thereby." He then, after giving his views of what is nec- essary, when either a delivery of the goods, or a part of them, or the payment of some part of the purchase-money is depended up- on as the consummation of the conti-act, and after the application of his construction of the requirements of that statute to the facts of the case, closes the opinion with this re- mark: "I think the judge at the circuit, in his charge to the jury, was entirely right;" and thereupon the order of the general term granting a new trial was reversed, and the judgment on the verdict was affirmed. No other opinion appears to have been giv- en in the case. It is evident from the opinion and the con- clusion arrived at by the learned judge, that there was no question involving the construc- tion of the section of the statute now under consideration. On the contrary, he declares that the judge at the circuit, who had char- ged the jury, "that according to the defend- ant's narrative of the facts, the contract rested solely in words," was entirely right The remark, that it was necessary that a written memorandum in writing of a con- tract should be signed by both parties to it, was gratuitous; and certainly there is not the least color for saying that this court Ln that case "decided that the memorandum must be signed by both parties." I have now examined, with much and per- haps unnecessary particularity, the cases re- ferred to by the counsel to sustain his po- sition that there has been no decision in the court of last resort, and no weU-considered one in the other courts, holding it to be vm- necessary that the note or memorandum of the contract for the sale of goods should be signed by both parties. That examination shows not only that all of them, except the case of Bailey v. Ogden, 3 Johns. 399, in- volve the question, and hold that the statute is complied with when the note or memoran- dum of the contract is signed or subscribed by the party to be charged thereby, but also that the question has been decided after a careful consideration thereof; and in the case of Bailey v. Ogden, supra, tJie same principle is distinctly and f uUy recognized by Kent C. J., as appears by his statements above re- ferred to. I wiU add another case, that of Davis v. Shields, 2G Wend. 341, in the court for the correction of errors, decided in 1841, where the question was again raised and consid- ered by Chancellor Walworth and Senator THE MEMORANDUM IN WRITING. 195 Vorjil.'ink. Tho chancellor, at page 350, said that "the former statute of frauds required the note or memorandum of the agreement to be signed by the parties to be chaiged there- by, and the courts had not only decided that it was not necessary tliat it should be signed by both parties, so as to nxake it legally bind- ing on both, or upon neither, but they had in many cases held that a literal signing of the memorandum by the party who was sought to be charged tliereby was not neces- sary." Senator Verplank, at page 3G2, said: "A doubt naturally arises whether, under our Revised Statutes, the words to 'be subscrib- ed by the parties to be charged' do not re- quire that the agreement should be from the first binding, by means of an authorized sign- ing, upon all the pai-ties to the bargain;" and, after referring to the case of Clason v. j\Ierritt, which he considered as having set- tled the question in that court, and stating that the decision was Ln conformity with nu- merous prior decisions, as was shown in the opinion of Chancellor Kent in that case, he said: "It seems to me these words must be taken in their fixed and adjudicated sense, according to which it is enough that the agreement be signed, or be authorized to be signed by the party to be charged in the suit;" and adds, "nor is this interpretation without the support of reasons of equity in- dependent of authority. It is within the lit- eral sense of the words used;" and then, aft- er some remarks in support of those views, he concludes: "I adhere then to the old ad- judicated meaning of the words retained from the original statute, and consider it suf- ficient if the memorandum was authorized by the vendors who are now to be charged, al- though it might not have been originally binding on the vendee." In that case the question was also pre- sented whether the contract was "subscrib- ed" within the requirements of the Revised Statutes, witliout being actually signed be- low or at the end of the memorandum, and it was decided that it was not; and the de- cision of the supreme court holding to the contrary, as the case is reported in 24 Wend. 324, was reversed. In addition to the above cases I wUl cite, as authority sustaining the sufiiciency of the signature by the party to be charged, tlie following: West v. Newton, 1 Duer, 277-2S3; Woodward v. Harris, 3 Sandf. 272-277; Fen- ley V. Stewart, 5 Sandf. 101-105. These au- thorities are In conformity to the decisions on the English statute, which were recog- nized as authority by Chancellor Kent in Clason V. Baily. 14 .Johns. 4S4, etc. Among those were Saunderson v. .Tackson, 2 Bos. & P. 238; Champion v. riiunmer. 4 Bos. & P. 252; Egerton v. Matthews, 6 East. 307; Al- len V. Bennett. 3 Taunt. 1G9. In Egerton v. Matthews, tlie action was brought by the seller against the buyers for not accepting and paying for certain goods, which the de- fendants had contracted to purchase by the following memorandum In writing: "We agree to give Mr. Egerton nineteen cents per pound for thirty bales of Smyrna cotton, cus- tomary allowance cash, three per cent as soon as our certificate is complete." It was dau-d 2d September, 1803, and was signed by the defendauLs, the buyers, only. They had be- fore that time become bankrupts, and their certificate was waiting for the lord chancel- lor's allowance, and after it was allowed, they signed the memorandum again. On the opening of the case upon the trial it was ob- jected that the contnxct was altogether ex- ecutory, that no con.sid(;ration appeared on the face of the writing for the promise, and that there was not any mutuality in tlie en- gagement, and therefore that it was void by the statute of frauds. 20 Car. II. c 3. The objection prevailed, and the plaintiff was nonsuited; but on a motion to set aside the nonsuit, Lord Elleuborough, C. J., ob- served that the seventeenth clause of that statute required "some note or memorandum in writing of the bargain signed by the par- ties to be chiirged by the contract;" and that this memorandum above quoted was a mem- oi-andum of the bargain, or at least so much of it as was sufiicient to bind the parties to be charged tlierewith, and whose signature to it was all that the statute required. The question again arose in Allen v. Ben- nett, 3 Taunt 1G9. The action was brought by the buyer against the seller for the non- delivery of goods, and was based on ceitain entries of the sale made by defendant's agent in a book of the plaintiff. The sale was subsequently recognized in a correspond- ence by the plaintiff with the defendant, but there was no evidence that the plaintiff had signed any contract to bind himself. It was objected on the trial that there was not a sufficient note in writing within the statute of frauds for the sale of the goods, inasmuch- as It did not at all appear by the contract who was the buyer; that all that could be gathered from the entries was, that they were contracts entered into by Bennett, to seU goods to persons not named, and who the persons were could not be supplied by oitil evidence. There was a verdict for tne plaintiff. On a motion to set it aside, the correspondence was held sufficient to connect the parties. It was then objected that the party who had not signed was not bound, as to which Mansfield. C. J., said that the cases of Egerton v. Matthews, Saunderson v. Jack- son, and Champion v. Plummer, supra, "sup- pose a signature by the seller to be suifi- cient, and every one knows it is the daily practice of the court of chancery to estab- lish contracts signed by one person only; and yet a court of equity can no more dis- pense with the statute of frauds than a court of law can." and he held that the verdict should be sustained. Heath, J., was of the same opinion, and said there was a case in Strange by which it appeared that a voidable promise was sufficient to sustain a promise. 196 STATUTE OF FRAUDS. Lawrence, J., after showing that it was evi- dent that the contract was entered into by the authority of the defendants, said that the objection would quite overturn the aises of Egei-ton v. Matthews, Saunderson v. Jacli- son. and Champion v. Plummer, and the statute of frauds clearly supposes the proba- bility of there being a signature by one per- son only. "VMthout multiplying cases, I will content myself with quoting the remark of Earl, C. J., in the case of Parton v. Crofts, IG C. B. (N. S.) Ill, E. C. L. 11, where he, after dis- cussing and considering the effect of bought- and-sold notes, in reference to the require- ment of the statute of frauds, says: "To sat- isfy the seventeenth section of the statute, it is enough to produce a memorandum of the contract signed by the party to be charged thereby, or by an agent thereunto duly au- thorized." This is recognized as the rule by the ele- mentary writers. Chancellor Kent, in his Commentaries (volume 2, p. 510), says: "The signing of the agreement by one party only is sufficient, provided it be the pai-ty sought to be charged. He is estopped by his sig- nature from denying that the contract was validly executed, though the paper be not signed by the other paity, who sues for the performance." Starkif, in his work on Evidence (volume 2, p. 614), says: "It is sufficient if there be a momoi-andum signed by the defendant, the vendor, although it be not signed by the plaiutifiC, the vendee, and although it could not have been enforced by the latter." See, also, Comyn, Cont. 123. In view of the nu- merous decisions, both in this state and in England, it appears to me to be impossible now to hold a different rule by giving a dif- ferent construction to the statute of frauds. Assuming then that the memorandum, on which the present action is based, is valid and binding on both parties at common law, and that the statute only requires it to be signed by the party to be charged, it ap- pears to me to follow a;s a necessary con- sequence, that the defendants, the vendors, in this case having by their signature in writing given the written evidence to charge them, are liable thereon; and that the non- suit in the court below was improperly grant- ed. As however a majority of this court was unable to concur in a judgment on the first argument, it may be proper to refer briefly to the opinion then read in affirmance of the nonsuit, and which has been presented to us on the present argument. It concedes that it is not necessary, under the require- ments of the statute of frauds, that the con- tract should be signed by both parties; and that prior to the statute, it would have been valid and binding upon both of them with- out being reduced to writing and signed by either. But the learned justice, by whom it was delivered, adds that: "The statute makes the contract void, although reduced to writing, as to the party not subscribing it; and it follows that the void promise of the latter furnished no consideration for the agreement of the party who subscribes it." This appears to me to be a misconstruction of the statute. TTaat does not define or pre- scribe what shall be necessaiy to constitute a contract. On the contraiy, it assiimes the existence of one that is valid and binding in all respects, and on that assumption declares that it shall be "void," not unlawful but in- effectual, of no binding force to charge any 0* the parties with a liability thereon who does not subscribe a note or memorandum thereof in writing. It did not affect nor was it intended to affect an oi-al agreement, otherwise, or to a greater extent, than by the requirement of written evidence of its terms by the signature or subscription of the party who was to be charged with a legal liability thereon. It is true that the party who does not sign or subscribe it may not be liable thereon in an action, as to which I deem it unnecessary to express an opinion; but that fact does not destroy or annul the consideration and terms which form the in- ducement of the other party to make it ob- ligatory on himself by compliance with all the requirements of the law to make it so. On the contrary, the same consideration con- tinued without being impaired or annulled, and no new or further evidence of it was requisite. It is too late for him, after executing an agreement conformable in all respects with the requirements of lue law, and with the avowed intention to bind and charge him- self, for the purpose of avoiding the liability thus voluntarily assumed, to say that the other party thereto cannot be charged there- on, on the sole ground that he himself did not take the precautionary means required by the law to charge such other party, either through neglect or in reliance on his promise to fulfill his part of it without being legally bound thereto. The object of the statute is attained by protecting a vendor against a liability, found- ed on oral evidence only of his contract, without relieving him from an obligation clearly assumed and created by a written evidence thereof, the evidence of which un- der such circuDJStancos, would make the stat- ute the means of pei-petrating fraud, as well as a protection against it, and against per- jury or subornation of perjury. A construc- tion that leads to such a result is not neces- sary and is, in my opinion, unwaiTanted. The .substance of these views is tersely ex- pressed by Parsons in his work on Mercan- tile Ivaw (page 78), where he, after consider- ing the several clauses of the statute of frauds, says: "The operation of the statute in the clauses we have considered is not to avoid the contract, but only to inhibit and prevent actions from being brought upon it. In other respects it is valid." THE MEMORANDUM IX WRITING. 197 Concediug it to be true that the considera- tion for a promise, as well as the promise it- self, must be in writing to give any right of action thereon against a party who has sign- ed it, as was decided in Waine v. Wailters, 5 East, 10, and in Sears v. Bnnli, 3 Johns. 210, it does by no means follow that when those and the other requisite elements to constitute a valid contract appear, it is also necessary that there should be a mutuality of obligation to give a right of action against either party. Chancellor Kent, in Executors of Clason V. Baily, 14 Johns. 4S8, supi-a, says that al- though Lord Chancellor Redesdale, in Law- renson v. Butler, 1 Schoales & L. 13, had ex- pressed the opinion that the contract ought to be mutual to be binding, and that if one party could not enforce it the other ought not, and that he himself had thought, and had often intimated, that the remedy ought to be mutual, yet it appeared fi*om a review of the cases that it had been too well settled to the contrary to be now questioned. It was subsequently (in 1836) said by Tin- dal, J., in Laythoarp v. Bryant, 2 Bing. N. C. 735, speaking of the clause of the English statute requiring an agreement for the sale of lands or any interest therein, or a note or memorandum thereof in writing, to be signed by the party to be charged therewith, or some other person thereunto lawfully au- thorized by him, that the party who has sign- ed the agreement is the party to be charged, and he cannot be subject to any fraud; that there had been some confusion in the argu- ment of the case between the consideration of the agreement and the mutuality of claim; and although it was true that the considera- tion must appear on the face of the agi'ee- ment, yet he had found no case nor any rea- son for saying that it is the signature of both parties that makes the agreement. Vaughn,. J., in the same case, said that the argument had proceeded on a fallacy arising out of a misconception of the case of Waine v. Wailters; that the decision therein never turned on the groimd that the mutuality of the contract must appear, but only that the note or memorandum must show the consid- eration, as well as the promise. An objection of the same nature as that now under consideration was raised in Bal- lard V. Walker, 3 Johns. Cas. 60, which was an action by the vendee on a written agree- ment for the sale of land to him, which was signed by the vendor alone. In which the name of the parties and all the terms of sale were stated, as to which RadcliCf, J., said: "The first objection, so far as it rests on the want of consideration, appears to mo in- applicable to the case. If the contract would be valid, as a contract by parol merely, there would certainly be an ample consideration. The defendant agreed to convey lands to the plaintiffi for a stipulated price, and the plaintiff, in consideration of such convey- ance, agreed to pay the price to the defend- ant. Here were mutual and valid consid- erations. If the agreement was not suffi- ciently reduced to writing, or signed by the parties, agreeably to the statute of frauds, it is void by force of that statute, but not for want of consideration." He then proceeded to show that the plaintiff could not be de- prived of a recovery becau.se it was not signed by the plaintiffs. And Kent, J., said: "This contract is valid so far as a considera- tion is in question. One agrees to sell, and the other to convey. It is suflicient if the writing be signed by one party only, and ac- cepted by the other. This takes the case out of the statute of frauds." The objection based on a want of mutual- ity, was also urged in Re Hunter, 1 Edw. Ch. 1, and overruled by Vice-Chancellor Mc- Cown. That decision wns recognized and approved in McCrea v. Purmort, 10 Wend. 460; decided in the court for the correction of errors, in 1836, where Cowan, J., said, that the objection that the agreement there in question was void, as being signed by one party only, and thus wanting mutuality, and that it must therefore go for nothing, was fuUy answered by the learned vice-chancel- lor in Hunter's Case, supra, and Paige, J., in the case of Worrall v. Munn, 5 N. Y. 229 (decided in this court), said: "A contract, valid within the statute, even if not binding on the party who has not subscribed it, can nevertheless be enforced, either at law or in equity, against the party (if the contract is for the sale of land) by whom the siile is to be made, or (if for the sale of goods) who is to be charged thereby, if subscribed by him. Want of mutuality is no defense to the suit. The vendor, a party to be charged, who has subscribed tlie contract, is estopped by his signature from denying that the contract was validly executetl, although not signed by the other party who sues for the perfonn- ance;" and added, "it is the constant prac- tice of the court of chancery to compel a specific performance, by a vendor, of a con- ti-act for the sale of lands subscribed by him. although the vendee has not bound himself by subscribing the contract. These eases show a clear distinction between a consider- ation and the mutuality of obligation, and that the former is necessary while the latter is not. See, also, Fenley v. Stewart, 5 Saudf. 101, supra. The views above expressed show that the defendants had boimd themselves by the contract in question to deliver the rifies therein agreed to be delivered, and that there was a good and suflicient consideration for their obligation- It follows that the judgment of the court below should be reversed, and a new trial ordered, costs to abide the event. All concur, except INGALLS, J., dissent- INGALLS, J. (dissenting). The defendi- ants executed and delivered to the plaintiff 198 STATUTE OF FRAUDS. an insti-ument in writing, of which the fol- lowing is a copy: -New York, May 13, 1S61. -We agree to deliver P. S. Justice, one thousand Enfield pattern rifles (with bayonets, no other extras), in New York, at eighteen dollars each, cash upon such delivery; said rifles to be shipped from Liverpool not later than 1st July, and before if possible. "W. Bailey Lang & Co." The plaintiff subscribed no agreement or memorandum, paid no money, parted with nothing of value, and assumed no obligation on account of the defendants' promise. The contract remains wholly executory, no part of the rifles having been delivered. The plaintifG instituted this action to recover damages for the failure of the defendants to deliver the rifles. The only question of any importance is, whether the mere subscribing and delivery of the above instrument by the defendants created a legal obligation on their part, which entitles the plaintiff to damages for a failure to deliver the rifles. The counsel for the appellant insists that the mere subscribing and delivery of the said in- strument by the defendants constituted a valid and binding obligation on their part, within the provisions of the statute of frauds, and consequently the defendants were liable to respond in damages for a vio- lation of their agreement. The provision of the statute of frauds, which has any appli- cation to this case, is as follows: "Every contract for the sale of any goods, chattels or things in action for the price of fifty dol- lars or more, shall be void; unless: 1st. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby." The instru- ment in question was subscribed by the de- fendants; and so fa-r the statute was com- plied with. But something further was re- quired to constitute it a valid and binding contract; the agreement being wholly ex- ecutory, it was indispensable that there should be some consideration for the agree- ment of the defendants, without which it was void. K the defendants uad offered the rifles, the plaintiff was at liberty to refuse to receive them, and the defendants would have been wholly without remedy. The statute of frauds, while it declares that a contract for the sale of personal property for the price of $50 or more shall be void, unless there is a note or memorandum sub- scribed by the party to be charged, does not declare that such note or memorandum so subscribed, is all that is essential to consti- tute a valid contract. The statute may be complied with in the above particular, and yet the contract be wholly void because there is no consideration to support it. It was not the intention of the legislature, in adopt- ing that statute, to dispense with the neces- sity of having a consideration to support an agreement, but to require such note or mem- orandum in addition to such consideration. If there had been a consideration, however slight, for the defendants' promise, they would have been bound, because they com- plied with the statute so far as the writing was concerned. If the instrument in ques- tion had been subscribed by the plaintiff, and had contained a promise on his part to receive the rifles and pay for them, such promise would have been a good considera- tion for the defendants' undertaking. We are not called upon to examine the numerous cases cited by the counsel, touching the stat- ute of frauds, because most of them have little or no bearing upon the question involv- ed in the disposition of this appeal. In my judgment the case is reduced to one ques- tion; whether an executory contract can be enforced when sub.scribed by one party only, and there is no consideration whatever for such contract. I cannot bring my mind to doubt but that such agreement is. wholly void. The judgment of the general term should be affirmed, with costs. THE MEM011ANI)UM I\ WRITING. 109 WILKINSON T. HEAVENRICH et aL (26 N. W. 139, 58 Mich. 574.) Supreme Court of Michigan. Jan. 6, 18S6. Error to Saginaw. Wheeler & McKnight, for plaintiff and ap- pellant. Wisner & Draper, for detendoiits. CHAMPLIN, J. But one question 13 in- volved in this case, and that is as to plain- tiff's right to maiuLain the action. The dec- laration alleges that on or about the four- teenth day of October, 1S82, the defendants entered into a written contract with plaintiff as follows: "We promise and agree to pay Thomas Wilkinson wages or salary at the rate of $3,500 a year, for three years, from the sec- ond day of October, 1SS2, in consideration of his working for us for that length of time as cutter in our merchant tailoring department in the city of East Saginaw, Michigan. Pay- ments to be made, as earned, in such sums and at such times as he may desire. "Dated October 14, 1SS2. "[Signed] Heaveurich Bros. & Co." —That he worked for defendants under tliis contract, and in the business and employ- ment aforesaid, and was always ready and willing to so work and be employed for de- fendants for the term of three years in said contract mentioned, and so worked until on or about the fifth day of July, 1SS4, when, without cause and against the wishes and contrary to the will and against the consent of the plaintiff, the defendants wrongfully dismissed and discharged the plaintiff from their employment, and refused to allow the plaintiff to work for them in the employment mentioned in said contract, whereby plain- tiff lost the wages and profits and advantages which he would have derived from being continued in said employ, was thrown out of work, and was unable to get any employment for a long space of time, to-wit, for four months. A second count alleges that on the fourteenth day of October, 1SS2, defendants entered into another contract with plaintiff, and in consideration that plaintiff would work for them promised and agreed to em- ploy the plaintiff for three years as cutter in defendants' merchant tailoring department, and pay him, as such cutter, at the rate of $3,500 each year, as earned, in sums and at times desired by plaintiff"; that plaintiff en- tered upon such employment as cutter and worked until about the fffth day of July, 1SS4, when he was wrongfully and against his will discharged, etc. The plea was the general issue, with notice that plaintiff did not perform the contract on his part, and for that reason they discharged him. On the trial, after the introduction of the agreement in evidence. It was admitted that the defendants constituted the firm of Heav- eurich Bros. &. Co. at the time of the making of the contract that is off'ered in evidence; that plaintiff was discharged on the seventh day of July, 1881; that the defendants paid the plaintiff in full for his services up to the time of his discharge; that upon the eighth day of July the plaintiff served upon the de- fendants the following notice: "Heavenrich Bros. & Co., East Saginaw, Michigan — Gentlemen: I hereby protest against your attempt to cancel our contract. I hold your written agreement for a three- j-ears term of service, from October 2, 1882, That contract I am ready and willing to per- form on my part, and I hereby ottVjr to con- tinue, and request you to furnirih mt.- employ- ment, under the terms of that arrangement "Datfd East Saginaw, July S, 1884. "[Signed] Thomas Wilkinson." The plaintiff was sworn in his own behalf, and was cross-examined relating to his per- formance of the contract on his part; bat the scope of his evidence was unimportant, in view of the charge given by the court, which wus that there was no mutuality in the agreement, for Mr. Wilkinson was not bound to stay three years, and Heavenrich Bros. & Co. cotild not be bound to keep him three years, and, for want of such mutuality, the plaintiff could not recover; and he di- rected a verdict for the defendants. The conflict of authority upon questions of the kind raised upon this record is truly be- wildering, and the cases are incapable of being reconciled with each other; a large and respectable class holding that a contract which the statute of frauds declares shall not be valid unless in writing, and signed by the party to be charged therewith, need only be signed (by the party defendant in the suit, and thaTTTTs^o objection^ Tmrniiutaining such suit, and recovering upon such conti-act, that the other party did not also sign, and was not bound by its terms. 2 Kent, Comm. 510; 2 Stavkie, Ev. 614; Smith's Appeal, 69 Pa. St. 481; Tripp v. Bishop, 50 Pa. St. 428; Perkins v. Hadsell, 50 111. 217; Old Colony B, Coi"p. v. Evans, 72 Mass. 31; Williams v. Robinson, 73 Me. ISO. Another and equally respectable class of jurists hold that, unless the party bringing the action is bound by the contract, neither is bound, because of the want of mutuality. Lees v. Whitcomb, 14 E. G. L. 572; Sykes v. Dixon, 36 E. C. L. 300, 9 Adol. & E. 693; Krohn v. Bantz. OS Ind. 277; Stiles v. McClellan, Colo. 89. And see. also, as bearing upon the question. Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 Mich. 418; Liddle v. Needham, 39 Mich. 147; Mc- Donald V. Bewick, 51 Mich. 79, 16 N. W. 240. The cases above cited are not intended to be exhaustive on either side of the proposition. I shall not attempt a reconciliation when reconciliation Is impossible; but as the ques- tion is new in this state, the court is left to adopt such view as appears to rest upon principle. It is a general principle in the law of contracts, but not without exception, that an agreement entered into between parties competent to contract, in order to be bind- ing, must be mutual; and this is especially 200 STATUTE OF FRAUDS. so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. Hopliins v. Logan. 5 Mees. & W. 241; Dorsey v. Pack- wood, 12 How. 126; Ewins v. Gordon, 49 N. H. 444; Hoddesdon Gas Co. v. Haselwood, 6 C. B. (N. S.) 239; Souch v. Strawbridge, 2 C. B. SOS; Callis v. Bothamly, 7 Wkly. R. 87; Sylies V. Dixon, 9 Adol. & E. 693; Add. Gont, §'lS; Pars. Cont § 449; Railroad Co. v. Brinckerhoff, 21 Wend. 139; Lester v. Jewett, 12 Barb. 502. Such was the case here. The consideration consisted of mutual promises of the parties, not to be performed within a year from the making thereof. The defendants' promise was in writing, and signed by them; but the plaintiff's promise does not appear in the writing signed by the defendant, nor was any note or memorandum made and signed by him promising to labor for defendants three years or any length of time. Plaintiff was never bound by the agreement. There never was, then, any consderation to support defendants' promises. The agreement was void for _\maL.of_ mut uality . The plaintiff . was imder no legal obligation to work for de- fendants a moment longer than he chose, and • the defendants were under none to keep him i Vin their employment. The plaintiff could nei- ther revive nor make a contract with defend- ants after he was discharged by them with- out their consent and concurrence. The let- ter written after he was discharged was of no avail. The judgment is affirmed. The other justices concurred. THE MEMORANDUM IX WRITING. 201 XJLASOX V. BAILEY et al .iV TUX et al. SAME v. IS yV 11 A T«l,..„ /I SAME V. DEN- MEKIUT et al^n ij^ (14 Johns. 484.) Q^^i I Court of Errors of New York. March, x817. These causes carae before this court on writs of error, to the supi-fine court. The facts in all were, substantially, the same. See Merrit v. Clason, 12 Johns. 102. Townsend, a brolvor, was employed by Clason, a merchant, in the city of New York, . in February, 1812, to purchase a quantity of rye for him. Townsend applied to Bailey & Voorhees, to linow if they had rye for sale; and they agreed to sell him, for Clason, 3,000 bushels of rye, at one dollar per bushel, pay- able on delivery, and authorized him to make sale thereof to Clason, accordin.idy. Townsend informed Clason of the quantity of rye he could purchase of Bailey «fc Voorhees. and the terms of sale, and he was directed by Clason to purchase it. Townsend then went to Bailey & Voorhees and closed the bargain; and there- upon wrote the following memorandum in his memorandum book, in the presence of Bailey & Voorhees: "February 29th, bought for Isaac Clason, of Bailey & Voorhees, three thousand bushels of good merchantable rye, deliverable from the 5th to the loth of April next, at one dollar per bushel, and payable on delivery." The memorandum was made the 29th of Feb- ruary, 1812, and was written, as well as the other memoranda, in the same book, with a lead pencil. The day after making the bar- gain, Townsend informed Clason of it; and be gave him a copy of the memorandum, in the latter part of the month of April, but not before. On the 14th of April, 1812, Bailey & Voorhees tendered 3,000 bushels of good mer- chantable rye to Clason, requesting him to take the same away, and paj- for it, according to the terms of the bargain; but Clason re- fused to accept and pay for it. On the IGth of April, Bailey & Voorhees addressed a let- ter to Clason, giving him notice, that unless he took the rye and paid for it, in the mean time. It would be sold on the Tuesday follow- ing, at public auction, etc., and that they should hold him accountable for whatever deficiency there might be, after charging the original price, charges, &c. Clason neglecteil to receive and pay for the rye, which was sold pursuant to the notice, at the best price that could be got for it; and the deficiency, after deducting the uett proceeds from the price at w'hicU it was purchased by Clason, was $1,150.50 to recover which sum, the suit was brought by Bailey & Voorhees against Clason. There was a special verdict, on which the court below gave judgment for the plaintiffs below, on which the defendant brought a writ of error. Tlie reasons of the judgment below, were as- signed by the chief justice; being the same as delivered by the supreme coui't, in Merrit v. Clason, 12 Johns. 100. Mr. "\'an Bouren, Atty. Cen., for plaintiff in error. S. Junes, Jr., and Mr. Henry, for de- fendants in error. THE CHANCELLOR. The case struck me upon the argument as being very plain. But as it may have appeared to other members of the court in a dlfterent, or, at least, in a more serious light, I will very briefly state the rea- sons why I am of opinion, that the judg- ment of the supreme court ought to be af- firmed. The contract on which the controversy aris- es, was made in the following manner: Isaac Clason employed John Townsend to purchase a quantity of rye for him. He, in pursuance of this authority, purchased of Bailey & Voorhees 3,0U0 bushels, at one dollar per bushel, and at the time of closing the bar- gain, he wrote a memorandum in his memo- randum book, in the presence of Bailey & Voorhees, in these words: "February 29th, bought for Isaac Clason, of Bailey & Voorhees, 3,000 bushels of good merchantable rye, deliv- erable from the 5th to the 15th of April next, at one dollar per bushel, and payable on deliv- ery." Tlie terms of the sale and pm-chase had been previously communicated to Clason, and approved of by him, and yet at the time of delivery, he refused to accept and pay for the rye. The objection to the contract, on the part of Clason, is that it was not a valid contract within the statute of frauds: (1) Because the contract was not signed by Bailey «& Voorhees. (2) Because it was written with a lead pen- cil, instead of pen and ink. I will examine each of these objections. It is admitted that Clason signed this con- tract, by the insertion of his name by his authorized agent, in the body of the memo- randum. The counsel for the plaintiff in error do not contend against the position, that this was -A sufficient subscription on his part. It is a point settled, that if the name of a party appears in the memorandum, and is applicable to the whole substance of the writing, and is put there by him or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Saunderson v. Jackson, 2 Bos. & P. 238; Welford v. Beaz- ely, 3 Atk. 503; Stokes v. Moor, cited by Mr. Coxe in a note to 1 P. Wms. 771. Forms are not regarded, and the statute is satisfied if the terms of the contract are in writing, and the names of the contracting parties appear. Clasou's name was inserted in the contract, by his authorized agent, and if it were admitted that the name of the other party was not there by their direction, yet the better opinion is, that Clason, the party who is sought to be charged, is estopped, by his name, from say- ing that the contract was not duly signed within the purview of the statute of frauds; 202 STATUTE OF FEAUDS and that It is sufficient, if the agreement be signed by the party to be charged. It appeai-s to me, that this is the result of the weight of authority both in the courts of law and equity. In Ballard v. Walker, 3 Johns. Cas. GO, de- cided in the supreme court, in 1S02, it was held, that a contract to sell land, signed by the vendor only, and accepted by the other party, was binding on the vendor, who was the party there souglit to be charged. So in Eoget V. Merritt, 2 Caines, 117, an agree- ment concerning goods, signed by the seller, and accepted by the buyer, was considered a valid agreement, and binding on the party who signed it. These were decisions here, under both branch- es of the statute, and the cases in the English courts are to the same effect. In Saunderson v. Jackson, 2 Bos. & P. 23S, the suit was against the seller, for not deliv- ering goods according to a memorandum sign- ed by him only, and judgmeut was given for the plaintiff, notwithstanding the objection that this was not a sufficient note within the statute. • In Champion v. Plumer, 4 Bos. & P. 252, the suit was against the seller, who alone had signed the agreement. No objection was made that it was not signed by both parties, but the memoraudum was held defective, be- cause the name of the buyer was not men- tioned at all, and consequently there was no certainty in the writing. Again, in Egerton V. Matthews, 6 East, 307, the suit was on a memorandum for the purchase of goods, sign- ed only by the defendant, who was the buyer, and it was held a good agreement within the statute. Lastly, in Allen v. Beunet, 3 Taunt. 1C.9, the seller was sued for the non- delivery of goods, in pursuance of an agree- ment signed by him only, and judgment was rendered for the plaintiff. In that case. Chief Justice Mansfield made the observation, that "the cases of Egerton v. Matthews, Saunder- son V. Jackson, and Champion v. Plumer, sup- pose a signatm-e by the seller to be suflicicnt; and every one knows it is the daily practice of the court of chancery, to establish con- tracts signed by one person only, and yet a court of equity can no more dispense with the statute of frauds than a court of law can." So Lawrence, J., observed, that "the statute clearly supposes the probability of there being a signature by one person only." If we pass from the decisions at law to the courts of equity, we meet with the same uni- form construction. Indeed, Lord Eldon has said (18 Ves. 183) that chancery professes to follow courts of law, in the construction of the statute of frauds. In Hatton v. Gray, 2 Ch. Cas. 164, 1 Eq. Ca.s. Abr. 21, pi. 10, the purchaser of land signed the agreement, and not the other party, and yet the agreement was held by Lord Keeper North to be binding on him, and this too, on a bill for a specific performance. So in Coleman v. Upcol, 5 Vin. Abr. 527, pi. 17, the Lord Kpeper Wright held, that an agree- ment concerning lands was within the stat- ute, if signed by the party to be charged, and that there was no need of its being signed by both parties, as the plaintiff, by his bill for a specific performance, had submitted to per- form what was required on his part to be performed. Lord Hardwicke repeatedly adopted the same language. In Buckhouse v. Crosby, 2 Eq. Cas. Abr. 32, pi. 44, he said, he had often known the objection taken, that a mutual contract in writing, signed by both parties, ought to appear, but that tlie objection had as often been overruled; and in Wefford v, Beazely, 3 Atk. 503, he said, there were cases where writing a letter, setting forth the terms of an agreement, was held a signing within the statute; and in Owen v. Davies, 1 Ves. Sr. 82, an agreement to sell land, signed by the defendant only, was held binding. The modern cases are equally explicit. In Cotton V. Lee, before the lords commissioners, in 1770, which is cited in 2 Brown, Ch. 564, it was deemed sufficient, that the party to be charged had signed the agreement So in Seton V. Slade, 7 Ves. 275, Lord Eldon, on a bill for a specific performance, against the buyer of laud, said, that the agreement being signed by the defendant only, made him, within the statute, a party to be charged. The case of Fowle v. Freeman, 9 Ves. 351, was an express decision of the master of the rolls, on the veiy point, that an agreement to sell lands, signed by the vendor only, was bind- ing. There is nothing to disturb this strong and united current of authority, but the observa- tions of Lord Chancellor Redesdale, in Law- reuson v, Butler, 1 Schoales & L. 13, who thought that the contract ought to be mutual, to be binding, and that if one party could not enforce it, the other ought not. To decree performance, when one party only was bound, would "make the statute really a stat- ute of frauds, for it would enable any per- son who had procured another to sign an agreement, to make it depend on his own will and pleasure whether it should be an agreement or not." The intrinsic force of this argument, the boldness with which it was applied, and the commanding weight of the very respectable character who used it, caused the courts, for a time, to pause. Lord Eldon, in 11 Ves. 592, out of respect to this opinion, waived, in that case, the dis- cussion of the point; but the courts have, on further consideration, resumed their for- mer tract. In Western v. Russell, 3 Ves. & B. 192, the master of the rolls declared he was hardly at liberty, notwithstanding the considerable doubt thrown upon the point by Lord Redesdale, to refuse a specific per- formance of a contract to sell land, upon the ground that there was no agreement signed by the party seeking a performance: and in Ormond v. Anderson, 2 Ball & B. 370, the present lord chancellor of Ireland (and whose authority, if we may judge from the ability THE MEMORANDUM IN WRITING. 203 of his decisions, Is not far short of that of his predecessor), has not felt himself au- thorized to follow the opinion of Lord liedes- dale. "I am well aware," he observes, "that a doubt has been entertained, by a judse of this court, of very hiyh authority, whether courts of equity would specUically execute an agreement where one party only was bound; but there exists no provision in the statute of frauds to prevent the execution of such an agreement." He then cites, with ap- probation, what was said by Sir J. Manslield, in Allen v. Bonnet, I have thought, and have often intimated, that the weiglit of argmnent was in favour of the construction that the agreement concern- ing lands, to be enforced in equity, should be mutually binding, and that the one party ought not to be at liberty to enforce, at his pleasure, an agreement which the other was not entitled to claim. It appears to be set- tled (Hawkins v. Holmes, 1 P. Wms. 770), that though the plaintiff has signed the agreement, he never can enforce it against the party who has not signed it. The reme- dy, therefore, in such case, is not mutual. But, notwithstanding this objection, it ap- pears from the review of the cases, that the point is too well settled to be now questioned. There is a slight variation in the statute respecting agreements concerning the sale of lands, and agreements concerning the sale of chattels, in as much as the one section (being the fourth section of the English, and the eleventh section of our statute,) speaks of the party, and the other section (being the seventeenth of the English, and the fif- teenth of ours,) speaks of the parties to be charged. But I do not find from the cases that this variation has produced any differ- ence in the decisions. The construct;on. as to the point under consideration, has been uniformly the same in both cases. Clason, who signed the agreement, and Is the party sought to be charged, is then, ac- cording to the authorities, bound by the agreement, and he cannot set up the statute In bar. But I do not deem it absolutely nec- essary to place the cause on this ground, though as the question was raised and dis- cussed, I thought it would be useful to ad- vert to the most material cases, and to trace the doctrine through the course of authoritj'. In my opinion, the objection itself is not well founded in point of fact. The names of Bailey & Yoorhecs are as much in the memorandum as that of Clason. The words are, "Bought for Isaac Clason, of Bailey & Voorhees, 3,000 bushels," &c.; and how came their names to be inserted? Most undoubtedly they were inserted by their di- rection and consent, and so it appears bj' the special verdict. The jury find, that when the bargain was closed, Towusend, the agent of Clason, did, at the time, and In their pres- ence, write the memorandum; and if so, were not their names inserted by their con- sent? Was not Townsend their agent for that purpose? If they had not assented to the memorandum, they should have spoken. But they did assent, for the memorandum was made to reduce the bargain to writing In their presence, at the time it was closed. It was, therefore, as much their memoran- dum as if they had written it themselves. Townsend was, so far, the acknowledged agent of both parties. The auctioneer wlio takes down tlie name of the buyer, when he bids, is quoad hoc his agent. Emmerson v. Heells, 2 Taunt. 38. The contract was, then, in judgment of law, reduced to writing, and signed by both parties, and it appears to me to be as unjust as it is illegal, for Clason, or his representatives, to get rid of so fair a bargain, on so groundless a pretext. 2. The remaining objection Is, that the memorandum was made with a lead pencil. The statute requires a writing. It does not undertake to define with what instrument, or with what material the contract shall be written. It only requires it to be in writing, and signed, &c.; the verdict here finds that the memorandum was written, but it pro- ceeds further, and tells us with what instru- ment it was written, viz. with a lead pencil. But what have we to do with the kind of in- strument which the parties employed, when we find all that the statute required, viz. a memorandum of the contract in writing, to- gether with the names of the parties? To write is to express our ideas by letters visible to the eye. The mode or manner of impressing those letters is no part of the substance or definition of writing. A pencil is an instrument with which we write with- out ink. The ancients understood alpha- betic writing as well as we do, but it is cer- tain that the use of paper, pen, and ink, was, for a long time, unknown to them. In the days of Job they wrote upon lead with an iron pen. The ancients used to write upon hard substances, as stones, metals, ivory, wood, &c. with a style or iron instrument. The next improvement was writing upon waxed tables; until, at last, paper and parch- ment were adopted; when the use of the calamus or reed was introduced. The com- mon law has gone so far to regulate writ- ings, as to make it necessary that a deed should be written on paper or parchment, and not on wood or stone. This was for the sake of durability and safety; and this is all the regulation that the law has prescrib- ed. The instrument, or the material by which letters were to be impressed on paper or parchment, has never yet been defined. This has been left to be governed by public convenience and usage; and as far as ques- tions have arisen on this subject, the courts have, with great latitude and liberality, left the parties to their own discretion. It has, accordingly, been admitted (2 Bl. Comm. 297; 2 Bos. & P. 23S: 3 Esp. ISO), that printing was writing, within the statute, and (2 Brown, Ch. 5So) that stamping was equivalent to signing, and (S Yes. 175) that making a mark 204 STATUTE OF FRAUDS. was subscribing within the act. I do not find any case in the courts of common law in which the very point now before us has been decided, viz. whether writing with a lead pencil was sufficient; but there are sev- eral cases in which such writings were pro- duced, and no objection taken. The courts have impliedly admitted that writing with such an instrument, without the use of any liquid, was valid. Thus in a case in Comyn (page 451), the counsel cited the case of Loveday v. Claridge, in 1730, where Love- day, intending to make his will, pulled a pa- per out of his pocket, wrote some things down with ink, and some with a peucil, and it was held a good will. But we have a more full and authentic authority in a late case decided at doctors commons (Rymes v. Clark- son, 1 Phillim. Ecc. Judgm. 22), where the very question arose on the validity of a codi- cil written with a pencil. It was a point over which the prerogative court had com- plete jurisdiction, and one objection taken to the codicil was the material with which it was written, but it was contended, on the other side, that a man might write his will with any material he pleased, quocuuque modo velit, quocunque modo possit, and it was ruled by Sir John NichoU, that a will or codicil written in pencil was valid in law. The statute of frauds, in respect to such contracts as the one before us, did not re- quire any formal and solemn instrument. It only required a note or memorandum, which imports an informal writing done on the spot, in the moment ahd hurry and tu- mult of commercial business. A lead pencil is generally the most accessible and conven- ient instrument of writing, on such occasions, and I see no good reason why we should wish to put an interdict on all memoranda written with a pencil. I am persuaded it would be attended with much inconvenience, and af- ford more opportunities and temptation to parties to break faith with each other, than by allowing the writing with a pencil to stand. It is no doubt very much in use. The courts have frequently seen such papers be- fore them, and have always assumed them to be valid. This is a sanction not to be dis- regarded. I am, accordingly, of opinion that the judg- ment of the supreme court ought to be af- firmed. This was the opinion of the court, BLMEN- DORF and LIVINGSTON, Senators, dissent- ing. It was thereupon ordered, adjudged, and decreed, that the judgment of the supreme court be, in all things, affirmed, and that the defendants recover from the plaintiffs their double costs, to be taxed, and that the rec- ord be remitted, etc. Judgment affirmed. EFFECT OF NON-COMPLIANCE WITH STATUTE. :u5 TOWNSEND V. HARGRA (U8 Mass. 325.) Supreme Judicial Court of MassachusettaT* Suffolk. Sept. 17, 1875. M. Storey, for plaintiff, defendant. F. A. Brooks, for COLT, J. The plaintiff relied on an oral contract of sale to the defendant of a quantity of wool in bales then in Boston, and held in store by one Williams. The sale was by sample at the invoice weight for a given price per pound, and the bales were specifically designated and appropriated by the terms of the contract At the time of the great fire of November 9, 1872, a part of the wool had been sent to the railroad station in Boston, and was either there or at the defendant's mill in Maine, or in transit to the mill, and a part remained and was burned in the storehouse of Williams. The defendant denies his liability for the wool burned. He contends, first, that the contract was not a completed contract of sale, because some- thing connected .with^tlie shipment or dcliv- _ory of tho wool remained to bcnlbne by the j3l;iin tirr. r.ut the instructions upon this point" were sufliciently favorable to the defendant, and upon evidence which, though conflicting, was sufficient to warmnt the finding. The jury must have found that nothing remained to be done on the part of the seller in the way of ascertaining, appropriating or delivering the property. It is well settled that by such a conti-act, independently of the statute of frauds, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Morse v. Sherman, lOG Mass. 430; Foster v. Ropes, 111 Mass. 10; Haskins v. Warren, 115 Mass. 514; Goddard V. Binney, Id. 4.j0. The defendant next relies upon the statute of frauds set up in his answer, and contends that there was. ,n^ acceptance or receipt p£_. by railroad at the defendant's expense. art of the_ wool sufficient tQ_taJ^ thp, ont Q f , iti^ ^ provisions as t o t he pa rt any case b urned. mere was, however, evidence which justi- fied the jury in finding that the storekeeper, Williams, after Wing uotilicd of the sale by both parties, and of the fact that the property belonged to the defendant, undertook at his request to deal with and hold it for him. Such an arrangement the jury may have found constituted a sufficient accopt;ince and receipt to make the contract "good and valid." It is well settled that the warehouseman in such case becomes the agent of the buyer and holds possession for his principal. Gushing v. Brood, 14 Allen, 376; Boardman v. Spooner, 13 Allen, 353; Hatch v. Bayley, 12 Cush. 27; Browne, St. Frauds. § 31S. But the evidence upon this point was conflicting, and some of it tended to prove that there was no accept- ance of the vool or any part of it through the agency of Williams, or until after the fire. It cannot be certainly known that the verdict was not founded upon an acceptance by the defendant at his mill in Maine, after the fire, of a part of the wool which had been sent on by railroad. The instructiqns given by the court appli- cable to this aspect of the case were not ex- cei)ted to, and are not reported. It is to be presumed that they were apt and sufficient, unless the specific instructions requested by the defendant should have been given in whole or in part; and that is the remaining question. The first two instructions requested were designed to support the statute defence, by avoiding the legal effect of the alleged ac- ceptance, at the mill, of part of the wool. The acceptance referred to is that which the stat- ute requires to give validity to the contract. It must be with intention to perform the whole contract and assert the buyer's owner- ship under it, but it is sufficient if it be of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass the title, which is not to be confoimded with that actual transfer of pos- session necessary to defeat the vendor's lien or his right of stoppage in transitu, or to show an actual receipt under the statute. Morse v. Sherman, supra; Browne, St. Frauds, § 317. The first request In all its parts is to be taken together and treated as one; the prop- osition that delivery of part to the Eastern Railroad Company would not satisfy the stat- ute of frauds, even as to that part, being preliminary only, and for the purpose of lead- ing up to the main proposition in regard to the subsequent acceptance of such part. The judge properly declined to rule that an acceptance, as thus defined, of part of the wool would not operate to take the contract out of the statute, as to the part which the plainiff had 'not sent, although by the terms of the contract the seller was to ship it all In the second request the judge was asked distinctly to rule that an acceptance of part of the wool would not operate upon the con- tract to render it valid retrospectively, or malce the defendant liable to pay for that which had been destroyed by fire. This pre- sents the question whether the date of the ac- ceptance or tlie date of the agreement will be treated, as between the parties, as the time when the contract was made, and the risk of loss of the goods was cast on the buyer. No di- rect adjudication of tliis precise point is cited, if we accept a New York case in which it seems to bo held, in a per curiam opinion, that a loss which happens after the original agreement and before the acceptance required by the statute, must fall on the purchaser. Vincent v. Germond, 11 .Johns. 2S3. The decision of it depends upon the con- struction to be given to that part of the stat- ute applicable to sales of personal prooerty, 206 STATUTE OF FilAUDS. which Is Incorporated in Gen. St. c. 105, § 5, and follows, with slight variation, the words of the seventeenth section of the Eng- lish statute. The pm-pose of this celebrated enactment, as declared in the preamble and gathered from all its provisions, is to prevent fraud and falsehood, by requiring a party, who seelis to enforce an oral contract in court, to produce, as additional evidence, some written memo- randum signed by the party sought to be char- ged, or proof of some act confirmatory of the contract relied on. It does not prohibit sucli contract. It does not declare that it shall be void or illegal, unless certain formalities are observed. If executed, the effect of its per- formance on the rights of the parties is not changed, and the consideration may be recov- ered. Stone V. Dennison, 13 Pick. 1; Bas- ford V. Pearson, 9 Allen, 3S7; Nutting v. Dickinson, S Allen, 540. The memorandum re- quired is the memorandum of only one of the parties. The alternative acts of the seven- teenth section proceed from one only. They presuppose a contract, and are in affirmance or partial execution of it They are not es- sential to its existence, need not be contem- poraneous, and are not prescribed elements in its formation. It is declared in the fourth section that no action shall be brought upon the promises therein named, unless some niemorandum of the agreement shaU be in writing; and in the seventeenth that no cou- ti-act for the sale of goods "shall be allowc»d to be good," or, as m oiu- statute, "shall De good and valid," unless the buyer accepts and receives part or gives earnest or there is some memorandum signed by the parties to be char- ged, or, as in om- statute, by the party to be charged. It is true there is difference in phraseology in these sections; but in view of the policy of the enactment and the necessity of giving consistency to all its parts, this difference cannot be held to change the force and effect of the two sections. "Allowed to be good" means good for the purpose of a recov- ery under it; and the clause in the last part of the latter section, which requires the mem- orandum to be signed by the party or parties to be charged, implies that the vahdity in- tended is that which will support an action on the contract. We find no case in which it is distinctly and authoritatively held other- wise. See Leroux v. Brown, 12 C. B. 801; Carrington v. Roots, 2 Mees. & W. 248; Reade V. Lamb, 6 Exch. 130; Browne, St. Frauds. §§ 115, 136. With reference to the change in our statute by the use of the words "good and valid," which first appears in Rev. St c. 74, § 4, it is enough to say that the provin- cial statute of 1692, c. 15, § 7, and St. 1788, c. 16, § 2, foUow the precise words of the English statute; and the commissioners on the Revised Statutes, in their report (page 107) declare that they intend to retam the well-known and familiar phraseology of the old statute, which has received judicial con- struction. Tisdide v. Harris, 20 Pick. 9, 12. It is apparent that the legislature of this state did not intend to change the meaning of the original provision. In carrying out its puriJose, the statute only affects the modes of proof as to all contracts within it. If a memorandum or proof of any of the alternative requirements peculiar to the seventeenth section be furnished, if acceptance and actual receipt of part be shown, then the oral contract, as proved by the other evi- dence, is established with all the consequen- ces which the common law attaches to it If it be a completed contract according to com- mon-law rules, then, as between the parties at least, the property vests in the purchaser, and a right to the price in tlie seller, as soon as it is made, subject only to the seller's lien and right of stoppage in transitu. Many points decided in the modern cases support by the strongest implication the con- stniction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other,— showing that the promise of the other is not wholly void, because it affords a good and valid consideration to support the promise which by reason of the memorandum may be enforced. Reuss v. Picksley, L. R. 1 Exch. 342. The memorandum is sufficient if it be only a letter written by the party to his own agent, or an entry or record in his own books, or even if it contain an express repudiation of the contract. And this because it is evidence of, but does not go to make, the contract. Gibson v. Holland, L. R. 1 C. P. 1; Buxton V. Rust, L. R. 7 Exch. 1, 279; Allen v. Ben- net, 3 Taunt. 169; Tufts v. Mining Co., 14 Allen, 407; Argus Co. v. Albany, 55 N. Y. 495. A creditor, receiving payment from his debt- or, without any direction as to its application, may apply it to a debt upon which no action can be maintained under the statute. Haynes v. Nice, 100 Mass. 327. The contract is treated as a subsisting valid contract when it comes in question between other parties for purposes other than a re- covery upon it Hence the statute cannot be used to charge a trustee, who may set up against his debt to the principal defendant a verbal promise within the statute to pay the defendant's debt to another for a greater amount. Cahill v. Bigelow, 18 Pick. 369. And a guarantor may recover of his principal a debt paid upon an unwritten guaranty. Beal v. Brown, 13 Allen, 114. On the ground that the statute affects the remedy and not the validity of the contract, it has been held that an oral contract, good by the law of the place where made, will not be enforced in the com-ts of a country where the statute prevails. Leroux v. Brown, 12 C. B. 801. The defendant may always waive its protection, and the court will not interpose the defence. Middlesex Co. v. Osgood, 4 Gray, 447. And, except that the statute provides that no action sliaU be brought, there would EFFECT OF NON-COMPLIANCE WITH STATUTE. 207 be no good reason to hold that a memorandum signed, or an act of acceptance proved, at any time before the trial would not be sufficient. Bill V. Bameut, 9 Mees. & W. 3G; Tisdale v. Harris, 20 Pick. 9. In a recent case In the queen's bench, a memorandum in writing made by the defend- ant, after the goods had been delivered to a carrier and been totally lost at sea while In his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were not in existence when the memorandum was furnished. Cloth Co. V. Hieronimus, L. R. 10 Q. B. 140. In the case of Marsh v. Hyde, 3 Gray, 331, relied on by the defendant, although there are some inconsistent expressions in the opinion, the general course of reasoning supports this result The facts in that case showed a com- pleted sale by oral agreement, with an ac- ceptance and receipt of part, which was held, although subsequent In point of time to the original contract, to tike the case out of the statute. The point decided Is not in conflict with tlie law here stated. The case of Stockdale t. Dunlop, 6 Mees. & W. 224, also fails to sustain the defendant's case. That was a sale of goods "to arrive," and it was expressly found tliat by the use of this mercantile term, if the property or the vessel named did not arrive, the buyer would have no right to the goods, and so no present insurable interest in them. It follows that it would have been erroneous to have given the instructions requested. Up- on the point closely allied, namely, what ef- fect, if any, the defendant's mistake or ig- norance of a material fact, such as the destruc- tion ofthe rest of the wool, would have on the alleged act of acceptance, we are not required by the terms of the request to pass. The third and last request was also properly refused for the reasons above given. /If the property in the wool passed by the terms of the original agreement, and the contract was taken out of the statute by the subsequent acceptance and receipt, then, as we have seen, as between the parties, the risk of loss was on the defendant at the tim'^ of the fire, and the plaintiff may recover the agreed price 5I the whole. Exceptions overruled. :03 STATUTE OF FRAUDS. ^^ WHEELER V. REYNOLDS. (66 N. Y. 227.) 3' Court of Appeals of New York- May 23, 1876. Action for specific performaDce of a parol agreement in reference to lands. The facts appear in the opinion. Judgment for plain- tiff. John Van Voorhis, for appellant The agreement claimed by plaintiflf was void by the statute of frauds. 2 Rev. St. (Edm. Ed.) 139, § G; Lathrop v. Hoyt, 7 Barb. 59; Levy v. Brush, 45 N. Y. 5S9; Sturtevant V. 'sturtevant, 20 N. Y. 39; 2 Story Eq. Jur. 61, § 1201; Getman v. Getman, 1 Barb. Ch. 499. Geo. H. Humphrey, for respondent Equity will not allow defendant to retain the property obtained on the faith of the oral con- tract without performing the same on his part. Ryan v. Dox, 34 N. Y. 307; Church v. Kidd, 3 Hun, 254. This case was not within the statute of frauds. 2 Rev. SL (Edm. Ed.) 139; 2 Story, Eq. § 759; 34 N. Y. 311; Stod- dard V. Whiting. 46 N. Y. 627; Dodge v. WeU- man, 43 How. Prac. 427. EARL, J. In 1S55 the plaintiff was the owner in fee of the lands described in the complaint, and then executed to the defend- ant a mortgage upon the lands, which is also described in the complaint. In April, 1SP.5, the plaintiff had become insolvent, and the mortgage remained unpaid, and he was una- ble to pay it. At that time the plaintiff claims a parol agreement was made as to the fore- closure of the mortgage, which he seeks to enforce in this action. No one was present when the agieement was made except the parties, and they are the only witnesses thereto. The defendant, as a witness, denied the agreement The plaintiff, as a witness, stated the agreement as follows: That he went to the defendant and stated to him that he would like to have him foreclose the mort- gage and bid m the land at the sale, and then sell the land or hold it to such time until they could sell it for what it was worth; that he would do what he could toward soiling the land and that defendant should do the same; and that when the land was sold he should take out the amount due upon his mortgage, and his costs and expenses, and pay the bal- ance to the plaintiff. This was the whole agreement as proved by the plaintiff. It was not agreed that plaintiff should not attend the sale, or that he should prevent others from attending. The judge who tried the cause found that this agreement was made, and also found that it was made by the de- fendant upon the consideration that the plain- tiff would not attend the sale or procure others to bid against the defendant at the sale. There was no proof whatever of such a consideratioiL The learned judge probably inferred it from all the facts of the case. It would doubtless have defeated the agreement if plaintiff had attended at the sale and bid, or if he had procured others to bid; and yet it could not be said that in either event he would have violated his agreement The al- leged agreement was wholly for his benefit, and if he had before the day of sale obtained the money to bid 'in the land, and thus ena- bled the defendant to realize all that w:\3 due him, there would have been no ground of complaint on the part of the defendant, and no breach of faith on the part of the plaintiff; so if the plaintiff had procured other parties to bid sufficiently, the substantial purpose of the agreement would have been accomplish- ed. The plaintiff therefore gave up no right which he possessed, and the defendant, by virtue of the agreement, could receive no more than his due, and obtained no right which he did not before have. The judge found that in pursuance of this agreement the defendant proceeded to foreclose his mort- gage. There was however no proof that he foreclosed it in pursuance of the agreement The defendant testified that he did not. Nothing was said at the sale about the agree- ment; and there was no act of either party in- dicating that the foreclosinre was in pursuance of the agreement. Nothing was done at the sale by the defendant to prevent competition; and one or more other parties did bid. There was no proof or finding that plaintiff omit- ted to attend the sale, or to procure others to attend, in reliance upon the agreement, or that the plaintiff, but for the agreement could or would have bid off the property, or procured some one else to do so for him. The defendant bid off the property for $S00, but the amount due him upon his judgment in foreclosure, including costs and expenses of sale, was about $1,800, which was substan- tially all the land was worth. There was no allegation in the complaint, nor proof upon the trial of any fraud practiced by the de- fendant upon the plaintiff in making the agreement, or in the foreclosure of the mort- gage and the sale of the land. The defend- ant, after the sale, took possession of the land under his deed, and retained it, and paid the taxes and received the rents, and this suit was not commenced until nearly nine years after the sale, when the land had great- ly increased in value. If under such circum- stances this alleged parol agreement can be enforced, our statute in reference to fraudu- lent conveyances and contracts, relative to lands will, in large part, be nullified. It must be conceded that the parol Hgree- ment was of itself absolutely void and con- ferred no rights and imposed no obligations upon any one. But one ground upon which it is sought to maintain this action is that the agreement was partly performed so as to take it out of the statute of frauds. 2 Rev. St 135, §§ 6, 10. To have such effect the part per- formance must be substantial, and nothing will be considered as part performance which EFFECT OF XOX-COMPLIANCE Willi STATUTE. 2uy does not put the party into a situation which is a fraud upou him unless the agreement be fullj' perforniod; and the acts of part per- forniauce should clearly appear to be done solely with a view to the agreement being performed. Generally if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement The acts should be so clear, certain and defi- nite in their object and design as to refer ex- clusively to a complete and perfect agree- ment, of which they are a part execution. 2 Story, Eq. Jur. §§ TGI, 7t;2; Phillips v. Thomp- son, 1 Johns. Ch. lol; Byrne v. Romaine, 2 Edw. Ch. 445; Jervis v. Smith, Iloff. Ch. 470; Wolfe V. Frost, 4 Sandf. Ch. 77. The object of the statute is to prevent frauds and per- juries, and hence courts of equity will take uo notice of agreements dopcndiiig upon parol evidence and otherwise within the statute, unless there are acts of part performance which go along with, relate to, and confirm the agreement, and which were clearly done in part execution thereof, and thus with the parol evidence established the existence of the a.grcement. Now, what have we in this case? Every act done by the defendant was such as he had a perfect right to do by virtue of his mortgage and his deed upon the foreclosure sale, and apparentlj' had no reference what- ever to any agreement with the plaintiff. There was no act of the plaintiff which could be re- ferred exclusively to the agreement. The only act of part performance pretended is that the plaintiff did not attend the sale and bid. But his absence from the sale was just as con- sistent with other circumstances. He was in- solvent and luiable to pay the mortgage; and the amount due thereon, with the costs and ex- penses of sale, was equal to the value of the land. Hence he could have had little motive to attend the sale, of which public notice was given, as required by the statute. To hold that his mere omission to attend the sale un- der such circumstances was a part perform- ance would be an application of the equity rule upon the subject wholly unauthorized by the best authorities. The court at general term atfinued the judgment upon the authority of the case of Kyan v. Dox, 34 N. Y. 307. That case *ls quite unlike this in its essential fesitures. There there was a sale under a foreclosure judgment, and the plaintiffs, the owners of the land, procured the defendant to bid off the same under a parol agreement that he would attend the sale and bid off the land for their benefit and advantage, and take the deed as his security for the amount paid by him, they agreeing that they would not find any other person to attend the sale and bid for them. He was to hold the deed as his se- curity, and whenever the plaintiffs repaid him the amount paid at the sale, together with in- terest and a reasonable compensation for his services, he was to convey the land to them. nOPE.SEL.CAS.COXT. — 14 In pursuance of the agreement he attended the sale and bid off the laud for $100, which was then worth ?4,0. 32 Law .1. C. P. 152. was contrary to our decision. It seems to me that that ca.se contains two things, — one a decision, and the other a dictum. The decision is not against our judgment; for it was that, although the parties spoke to each other on a Sunday, there was evidence upon which the jury might find that the contract was made on the Monday, and that that contract was for sei-vice for a year from that Monday, and that the service was to be performed within a year from that time. That decision was in accorda.^e with all the other cases. If the contract w«is made on the Monday, and If the service was to com- mence on the Monday, it is obvious tnat the sei-vice was to be performed within oae year from the making of the contract. There was, however, a dictum of Willes, J., which seems to be supported by the opinion of Byles, J. These are great authorities, and that dictum seems to have been that if a contract is made on a day, say Monday, for a .service for a year, to commence on the following day, say a Tuesday, the service is to be performed within 365 daj-s from the making of the contract, but that inasmuch as the law takes no notice of part of a day, and the contract was made in the middle of the Monday, the service to be perf(jrmed within 305 days after tliat, the law did not count that half day of the Monday, and therefore the contract was to Ix; perform- ed within 3G5 days after it was made, and that was within a year. This view was found- ed upon a fiction, namely, that the law does not take notice of part of a day. I am not prepared to say that under like circumstances one might not follow that dictum and carry it to the length of a decision. It is not neces- sary to say so here, becaase the case has not arisen. This conti-act was made on the Sat- urday, and the service was not to begin until the Mondaj-; that is, not the next day to Sat- urday, but the day save one after. The dic- tum does not apply. To say that the Simday is not to be counted in the year's sei'vice would not do, because if one Sunday is not to be counted, no Sunday is to be coimted. As to Cawthorne v. Cordrey, 13 C. B. (N. S.) 403. 32 Law J. C. P. 152, the decision is not differ- ent from other cases. As to the dictum, we can say nothing about it in this case, because the point does not arise. Therefore we have not to overrule Cawtliorne v. Cordrey, 13 C. B. (N. S.) 406, 32 Law J. C. P. 152. either aa to its decision or its dictum. I think that the contract falls clearly within the statute and within the principle of Bracegirdle v. Heald, 1 Barn. & Aid. 722. Therefore no rule will be gitinted as to the point whether the contract is within the statute; but the plaintiff may take a rule upon the questions whether the operation of the statute of frauds (section 4) may be defeated by part performance. ;iud also whether the plaintiff was entitled to any notice of dismissal, a verbal contract being in existence. COTTON and THESIGER, L. JJ., concur- red. 1879, March 4. J. C. Lawrence, Q. C. and P. B. Hutcliins, shewed cause. The plaintiff cannot recover in this action. Snelling v. Lord Huntingfield, 1 Cromp., M. & R. 20, shews that the express verbal contract of Satur- day, the 21st of April, was still in existence, and that no fresh contract can be implied from acts done in pursuance of it That con- tract was for a year's service to commence at a future day, and was therefore a contract not to be performed within a year. Bracegirdle 214 STATUTE OF FRAUDS. V. Heald, 1 Bam. & Aid. 722; Banks v. Cross- land. L. R. 10 Q. B. 97. Nevertheless, whilst it remained uurescinded no other contract be- tween the pai'ties can be implied. The words of the statute of frauds (section 4) are ex- press, and no action can be brought upon a contract falling within its prohibition. Lerous V. Brown, 12 C. B. SOI. The fact that the con- tract has been partly performed, does not af- fect the position of the parties. Giraud v. Richmond, 2 C. B. 835. The eq uitabl e doc- ■ tiine of part performance, whereby the oper a- tion of the statute of frauds has been defeat - f>d, han always been^onfined to contracts fo r the sale and p u rchase of lands, and has no t bee n extended to contracts of o ther kinds. Mr. Firth, in support of the rule. A con- tract falling within the prohibition of the stat- ute of frauds (section 4) is void to all intents and purposes. Carrington v. Roots, 2 Mees. & W, 248; Reade v. Lamb, 6 Exch. 130; In- man v. Stamp, 1 Starkie, 12. A contract that is void in part is void altogether. Thomas v. Williams, 10 Barn. & C. 6G4. Therefore the conti-act of Saturday, the 21st of April, may be treated as no contract, and a fresh contract of service may be implied from the acts of the parties. As to the doctrine of part performance it is true that the court of chancery formerly applied it only to contracts for the sale of land, and there may have been a difficulty in decreeing specific performance of a contract for personal serv- ices. Pickering v. Bishop of Ely, 2 Younge & C. 249; Johnson v. Railway Co., 3 De Gex, M. & G. 914. But the court of chancery would not allow the provisions of a statute to defeat a claim which good conscience re- quired to be carried out. Bond v, Hopkins, 1 Schoales & L. 413; Morphett v. Jones, 1 Swanst. 172. The defence set up by the de- fendant is wholly against good conscience. Ajid now by Judicature Act 1873 (36 & 37 Vict. c. 6G) § 2.5, subsec. 7, the doctrines of equity may be applied to cases decided in the f'ommon law divisions. BRETT, L. J. Upon the best considera- tion which I can give to this case, it seems to me that this rule should be discharged. I think that Hawkins, J., was right, and that the exchequer division was also right. It was clearly established that on Saturday, the 21st of April, a contract of service was in express terms entered into between the plaintiff and the defendant that the plaintiff should serve the defendant for one year, the contract to commence the Monday following. It cannot be disputed that a contract of that kind is within the 4th section of the statute of frauds, — that is to say, it is a promise founded upon a sufficient consideration,— but, it being only verbal, neither party can bring an action upon it so as to charge the other. It is, however, contended that as the plaintiff did on Monday, the 23d of April, enter into the defendant's service and continue in it for some months, another contract to serve for a year ought to be Implied, attended with the same consequences as the original contract, but outside the statute of frauds. It is al- leged that this contract can be implied, be- cause the conti"act originally entered into is voia. But, according to the true construction of the statute, it is not correct to say that the contract is void; and, in my opinion, no dis- tinction exists between the 4th and the 17th sections of the statute. At all events, the contract is not void under the 4th section. The contract exists, but no one is liable upon it. It seems to me impossible that a new contract can be implied from the doing of acts which were clearly done in performance of the first contract only, and to infer from them a fresh contract would be to draw an inference contrary to the fact. It is a prop- osition which cannot be disputed that no new conti"act can be implied from acts done un- der an express contract, which is still sub- sisting. All that can be said is that no one can be charged upon the original contract be- cause it is not in writing. At the bar re- liance was placed upon Carrington v. Roots, 2 Mees. & W. 248, and Reade v. Lamb, 6 Exch. 130. In the former case Parke, B., said: "I think the right interpretation of" the 4th section of the statute of frauds "is this: that an agreement which cannot be enforced on either side is as a contract void altogether." In the latter, Pollock, C. B., said: "Carring- ton v. Roots, 2 Mees. & W. 248, is in effect a decision that, for the pui-poses of the present question, there is no distinction between the 4th and 17th sections of the statute of frauds, and that not only no action can be brought upon an agreement within the 4th section of that statute if it be not reduced into writ- ing, but that the contract is also void." With regard to these dicta it is enough to say that the doctrine thereby laid down was unnec- essary for the decisions in those cases; for it being clear that no action can be brought on the verbal contract itself, it is also clear that neither party can be held liable upon it in- directly in any action which necessitates the admission of the existence of the contract. The two cases which I have mentioned were considered in Leroux v. Brown, 12 C. B. 801; and Jervis, C. J., undoubtedly took the same view of them as I do, and gave the inteii:)re- tation necessary for that case, namely, that the contract is not void, but only incapable of being enforced, and that any claim which depends upon the contract as such cannot be maintained. If the contrai-y view had pre- vailed, it would have been decided in that case that the statute of frauds (section 4), had a territorial operation; whereas if it ap- plies merely to the enforcement of the con- tract, then it is a statute with respect to the procedure of the English courts, and it is ap- plicable to contracts made abroad as well as in England. Moreover, the case of SnoUing V. Lord Huntingfiold, 1 Cromp., M. & R. 20, has not been overiniled by subsequent cases, but the doctrine there laid down has been EFFECT OF NON-COMPLIANCE WITH STATUTE. 215 fftrongly supported by subsuqueut cases, and in my opiuion it certainly ought uot to be overruled now. In my view the contract entered into on the 21.st of April Nvas not void, but existing, and from a part perform- ance of it a fresh contract ought uot to bo implied. The plaintiff, therefore, is driven to rely upon the ori;;inal contract, but he can- not maintain an action upon that, inasmuch as it is not in wi'itiug. It has been further contended that, as the contract of the 21st of April has been partly performed, it may be enforced, notwithstand- ing the statute of frauds, and that the equi- table doctrine as to part performance may be applied to it. It is well laiown that where a contract for the sale of laud had been part- ly performed, courts of equity did in certain cases recognize and enforce it; but this doc - t rine was exercised only as to cases concern - in^^lnnd, nnrl Tjyas ^iever_PYtp nded to c.nn - tra cts like that before us. because they coid d not be brought \vithin__jyic_JiiiiadicUon_-«f cCTTrts of equity. . Those courts could not en- tertam siITTS^ibr specific performance of con- tracts of service, and therefore a case iike the present could not come before them. As to the application of the doctrine of part per- formance to suits concerning land, I will merely say that the cases in the com-t of chanceiy were bold decisions on the words of the statute. The doctrine was not ex- tended to any other kind of contract before the judicature acts. Can we so extend it now? I think ttiat the true construction of the judicature acts is that they confer no new rights; they only confirm the rights which previously were to be found existing in the courts either of law or of equity. If they did more, they would alter the rights of parties, whereas in tinith they only change the procedure. Before the passing of the judicature acts no one could be charged on this contract either at law or in equity; and if the plaintiff could now enforce this con- tract, it would be an alteration of the law. I am of opinion that the law remains as it was, and that the plaintiff cannot maintiiin this action for breach of contract COTTON, L. J. We refused to grant a nile on the ground that the contract entered into on Saturday, the 21st of April, was to be performed within a year, and therefore not within the operation of the 4th section of the statute of frauds. The contract clearly was within that enactment. On the otlier points we granted a rule, but after having heard the arguments on behalf of the plain- tiff, I tliink that the rule for a new trial must be discharged. It has been contended that although the express contract cannot be en- forced, nevertheless a contract which can l>e enforced may be implied from conduct of the parties, and it has been argiied that tlie rule does not apply which forbids a contract to be implied where an express contract has been concluded, because the contract was void under the provisions of the statute of frauds (.section 4); but in my opinion that is not the true construction of the enact- ment, which provides that no action shall be brought to charge any person upon the ver- bal contract. In the lirst place, I may observe that to hold that this enactment makes void verbal contracts falling within its provisions, would be inconsistent with the doctrine of the courts of equity with regard to part per- formance in suits concerning land. If such contracts had been rendered void by the leg- islature, courts of equity would not have enforced them, but their doctrine was that the statute did not render the contracts void, but required written evidence to be given of them; and courts of equity were accustomed to dispense with that evidence in certain in- stances. During the argument some deci- sions were relied upon as shewing that the contract in the present case was void. In Carrington v. Roots, 2 Mees. & W. 248, cer- tain expressions were used by the judges which indicated that in their opinion a ver- bal contract falling within section 4 was void; but I think that their language, when care- fully analyzed, merely means that the con- tract was uot enforceable, either directly or indirectly by action at law. I think it un- necessary to go into the case of Reade v. Lamb, 6 Exch. 130. It was a case decided upon special demurrer, and the question to which the attention of the judges was direct- ed, was whether the pleadings were correct in point of form. It has been further argued that the con- tract may be enforced, because it has been in part performed. Let me consider what is the nature of the doctrine as to part per- formance. Tt has been said that the prin- ciple of that doctrine is that the court will not allow one party to a contract to take ad- vantage of part performance of the contract, and to permit the other party to change his position or incur expense or risk under the contract, and then to allege that the con- tract does not exist; for this would be con- trary to conscience. It is true that some dicta of judges may be found to support this view, but it is not the real explanation of the doctrine, for if it were, part payment of the purchase money would defeat the opera- tion of the statute. But it is well estab- lished and cannot be denied that the receipt of any sum, however large, by one party un- der the contract, will not entitle the other to enforce a contract which comes within the 4th section. What can be more contrary to conscience than that after a man has re- ceived a large sum of money in pursuance of a contract, he should allege that it was nev- er entered into? The true ground of the doc- trine in equity is that if the court foimd a man in occupation of land, or doing such acts with regard to it as would, prima facie, make him liable at law to an action of trespass, the court would hold that there was strong 216 STATUTE or FRAUDS. evidence from the nature of the user of the land that a contract existed, and would there- fore allow verbal evidence to be given to show the real circumstances under which possession was taken. Does this doctrine, when so explained, apply to the present case? I will first mention the provisions of Judica- ture Act 1S73, § 24, subsecs. 4, 7. These provisions enable the courts of common law to deal with equitable rights and to give relief upon equitable grounds; but they do not confer new rights. The different divi- sions of the high com! may dispose of mat- ters within tlie jurisdiction of the chancery and the common law courts; but they can- not proceed upon novel principles. Coiild the present plaintiff have obtained any relief in equity before the passing of the judicature acts? I think that he could not. The doc- ti-ine as to part performance has always been confined to questions relating to land; it has never been applied to contracts of service, and it ought not now to be extended to eases in which the court of chancery never inter- fered. THESIGER, L. J. Two questions must be considered in this case: First, whether the plaintiff could maintain an action at law; secondly, whether, if he could not maintain an action at law, he could maintain a suit in equity. I am compelled to subscribe to the opinion that the plaintiff had no remedy either at law or in equity. I have been un- willing to come to this conclusion, because it is manifestly unjust that where a contract of hiring has been acted on for a certain time, one party who has had the advantage of it should be able to put an end to it; and I should have been glad to decide that the plaintiff was entitled to a reasonable notice of dismissal. First, has the plaintiff a right of action at law? It is clear that a con- tract was made on Saturday, the 21st of April, and it cannot be contended that a con- tract made at that date to commence from the 2.3d of April is not within the 4th sec- tion of the statute of frauds. It is neces- sary to consider what is the effect of the statute upon such a contract. Is it that the contract is wholly null so that it does not prevent the proof of any other contract, or is it that the contract exists but cannot be en- forced? Certain dicta are to be found in the books from which it might appear that some of the judges have considered the verbal con- tract as absolutely void. But if those dicta are carefully examined, it will be found that they are not necessary for the decision of the cases in which they appear, and upon re- ferring to subsequent cases it will be found that it has been decided in clear terms that the verbal contract is not actually void. It is im.possible to say that the words of the statute make the verbal contract void. That a verbal contract is not void, is proved by the circumstance that where one party has signed the contract and the other has not. the party who has signed may be charged upon it, but that the party who has not sign- ed cannot be charged. It may also be urged with some show of reason that though there is a difference in language between the 4th and 17th sections of the statute of frauds, they are substantially identical in construc- tion, and Carrington v. Roots, 2 Mees. & W. 248, and Reade v. Lamb, 6 Exch. 130, may perhaps be cited in support of that argument. And it is plain that verbal contracts under the 17th section are not absolutely void for all pui-poses, for the section provides that part performance by payment or acceptance and receipt of goods stiall authorize the court to look at the terms of the contract, although it is not in writing. But I need not discuss this question further, for in Snelling v. Hunt- Ingfield, 1 Cromp., M. & R. 20, which has never been overruled, but, on the contrary, has been often followed, it was held that a contract not enforceable by reason of the statute of frauds (section 4) nevertheless ex- isted, and no contract can be implied where an express contract exists. I thinlc that we are bound by the authori-ty of that case. There was, therefore, in existence a contract made in express terms on Saturday, the 21st of April, and the plaintiff cannot sue upon it, as it is not in writing. It appears to have been held that, though there may be no right to recover on an executory contract, never- theless, if it has been executed to the extent of the oontractee entering upon the service, that is euougb to entitle him to be paid^r his servicers , and if we were not bound by authority it would be difficult to understand why, if the plaintiff can sue for services ren- dered, he should not equall y be en titled to allege tliat he shall not be^dismissed with- out notice or without such notice as was stipulated for in the contract But in Snell- ing V. Huntingfield, 1 Cromp., M. & R. 20, the court of exchequer appears to have thought that the contractoe can recover for services rendered but not for dismissal with- out notice. This seems to have been the con- struction at common law. If we turn to equity, we find that it has been held, as re- gards a sale of land, that when there has been an entry by one party to the contract, that is an overt act apparently done under a contract which entitles the court to look at the contract to see to what contract the overt act is really referable. I confess that on principle I do not see why a similar doc- trine should not be applied to the case of a contract of service, and as the doctrine of equity is based upon the theory that the court will not allow a fraud on the part of one party to a contract on faith of which the other party has altered his position, I do not see why a similar doctrine should not com- prehend a contract of service. At the same time I feel that doctrines of this nature are not to be unwarrantably extended, and that we ought not to go further than the decisions of courts of equity as to the principles of re- EFFECT OF NON-COMPLIANCE WITH STATUTE. 217 lief, and as to the Instances to which the doctrine of part porformance is to be ap- plied. Therefore, as we cannot clearly see that the equitable doctrine of part perform- ance ought to be extonded to contracts of service, I think that we ought to keep with- in the limits observed by the court of chan- cery before the passing of the judicature acts of 1873 and 1875. Rule discharged. 218 STATUTE OF FRAUDS. .'^ V J} BAKER et aL v. LAUTERBAC \0 (11 Atl. 703. 68 Md. 64.) Coart of Appeals of Maryland. Dec. 13,^8S7. Appeal from circuit court, Howard coun- ty. Catherine Lauterback, administratrix of John Lauterback, plaintiff, sued Baker Bros. & Co., defendants, to recover balance due for services of deceased. Judgment was rendered for plaintiff for $160, and defend- ants appealed. John T. Mason, W. A Hammond, and E. C. Williams, for appellants. T. C. Weeks, R. D. Johnson, and W. Reynolds, for ap- pellee, BRYAN, J. John Lauterback entered the service of Baker Bros. & Co. on the first day of March, ISSO, and remained in their em- ployment until August, 1S83, when he was killed by an accident. He was 20 years of age on the twenty-ninth of March, ISSO. His father died some years previously to his entering this service. But it_ appears that his mother signed a written contract with Baker Bros. & Co., by which she un- dertook to bind him to them as an appren- tice for five years to learn the art and trade of glass-blowing. The contract stipulated t^aTT^if the Hboy was considered competent to learn and be instructed, he was to re- ceive for his services one-half of the rate of wages paid journeymen for similar work for the first four ye^rs, and two-thirds of such wages for the fifth year; and it was further stipulated that $200 should be held by the employers out of his wages as se- curity, to be paid at the expiration of the term of the apprenticeship, or forfeited if he should leave their employment for any cause whatev- er before the expiration of the term of Sv,e ^ears._ All the wages were paid with the exception of $200, and the present suit was brought by the administratrix of the deceased apprentice against Baker Bros. & Co. to re- cover this amoimt. The verdict was for $1G0. The contract was not signed by the employ- ers, but only by the mother of the boy. In the view which we have taken of the case, this circumstance is immaterial. A father may bind out his son as an apprentice until he reaches the age of 21 years, provided he pursues the mode authorized by the twentietli section of article 6 of the Code; Ijut a- con- tract of apprenticeship executed by the moth- er Ls simply void. The boy would not be obhged to serve according to the terms of such an instrument; nor would the employer, by force of it, acquire any control over him. He did, however, serve for three years and five months, with a full knowledge of the terms of this contract He knew, therefore, the rate of compensation which his employers expected to pay for his work; it would not then be just that he should receive more. The law would Imply a contract on the part of his employ- ers to pay him what his services were rea- sonably worth. It would not, however, imply a contract on the part of the boy to serve for five years, nor to pay a forfeiture in case he should leave the service before the expiration of that time. A contract of this kind is re- quired, by the fourth section of the statute of frauds, to be in writing. The terms of the statute are that no action shall be brought "upon any agreement that is not to be per- formed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writ- ing, and signed by the party to be charged therewith, or by sonTe person tlu'idu nEo bv him lawfully authorized." If, therefore, the boy "had in express terms made a verbal contract to serve for five years, it could not have been enforced against him by the other party. And if, after serving a portion of the time, he should refuse to caiTy out his contract, and bring suit to recover the value of the serv- ices rendered, the verbal contract would not avail the employer as a defense. It could not be set up as a contract at all; the breadi of it would impose no liability which the law could enforce; the obligation to perform it could not be maintained in an action at law. In Browne on the Statute of Frauds the law is thus stated: "As a general proposition, how- ever, we shall hereafter see that a verbal con- tract within the statute cannot be enforced in any way, directly or indirectly, whether by action or in defense." Section 122. "The su- preme court of Connecticut, in a case where the plaintiff, by oral agreement, bound him- self to serve the defendant for a term longer than one year, for a consideration to be paid at the end of that time, and having repudiated' the contract, and quitted his employer at the end of six months, brought his action to re- cover the value of the services so rendered, held that he could recover, and that the de- fendant could not set up the existing ver- bal agreement to defeat his claim." Section 122a. "The clear rule of law is that such a contract cannot be made the ground of de- fense any more than of a demand. The obli- gation of the plaintiff to perform it is no more available to the defendant in the former case than the obligation of the defendant to per- form it would be to the plaintiff in the latter case." Section 131. It appears to us, there- fore, upon the uncontested facts in the case, that the plaintiff is entitled to recover the full value of the boy's services, less such sums as have been paid. It seems to be unneces- sary to notice in detail the rulings of the court below. It is suflicient to say that they accord with the views which we have expressed. It must be observed that, although contracts within the statute of frauds are void unless they are in writing, yet the voluntary per- formance of them is in no respect unlawful. If services be rendered in pursuance -of a, contract of this kind by one party, and be. ac- cepted by the other, they must be compen- sated. EUicott v. Peterson's Ex'rs, 4 Md. 491. EFFECT OF NON-COMPLIANCE WITU STATUTE. 219 And if an action be brought against a defend- ant for acts done, which were in performance of such a contract, or authorized by its terms, no recovery can be had against him. Cane v. Gough, 4 Md. 333; Browne, St. Frauds, § 133. It is said that the contract operates as a li- cense to do these acts, although it cannot be set up as conferring any right of action. As said by Lord Ablnger in Carrington v. Roots, 2 Mees. & W. 248, in speaiving of a case with- in the statute: "I tliink the contract cannot be available as a contract at all, unless an ac- tion can be brought upon it. What is done undgr the contract may admit of apologj' or ex- cuse, diver.so intuitu, if I may so speak; as where, under a contract by parol, the party is put in possession, that possession may be set up as an excuse for a trespass alleged to have been committed by him. * • •" The agree- ment might have been available in answer to a trespass by setting up a license; not setting up the contract itself as a contract, but only showing matter of excuse for the trespass. Judgment affirmed. 220 CONSIDERATION. *\ HAMER V. SIDWAY. (27 N. E. 256, 124 N. Y. 538.) Court of Appeals of New York, Second Divi- sion. April 14, 1891. Appeal from an order of the greneral term of the supreme court in the fourth judicial department, reversing a judgment entered on the decision of the court at spe- cial term in the county clerk's office of Chemuns county on the 1st day of Octo- ber, 18S9. The plaintiff presented a claim to the executor of William E. Story, 8r., for |.5,000 and interest from the 6th day of February, 1S75. She acquired it through several mesne assignments from \A'illiam E. Story, 2d. The claim being rejected by the executor, this action v^-as brought. It appears that William E. Story, Sr., was the uncle of William E. Story, 2d; that at the celebration of the golden wedding of Samuel Storv and wnfe, fatherand mother of William E. Story, Sr., on the 20th day of March, 1869. in the presence of the fami- ly and invited guests, he promised his nephew that if he would refrain from drinking, using tobacco, swearing, and plaving cards or billiards for money until he became 21 years of age, he would pay him the sum of §5,000. The nephew assent- ed thereto, and fully performed the condi- tions inducing the promise. When the nephew arrived at the age of 21 years, and on the :51st day of January, 1875, he wrote to his uncle, informing him that he had performed his part of the agreement, and had thereby become entitled to the sum of $5,000. The uncle received the letter, and a few days later, and on the 6th day of February, he wrote and tnailed to his nephew the following letter: "Buffalo, Feb. 6, 1S75. W. E. Story, .7r.— Dear Nephew: Your letter of the ;51st ult. came to hand all right, saying that you had lived up to theprtmiise made to me several years ago. I have no doubt but you have, for which you shall have five thou- sand dollars, as I promised you. I had the money in the bank the day you was twenty-one years old that I intend for you, and you shall have the money cer- tain. Now, Willie, I do not intend to in- terfere with this money in any way till I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some ad- venture that you thought all right and lo.se this money in one year. The first live thousand dollars that I got together cost me a heap of hard work. You would hardl3' believe me when I tell you that to obtain this I shoved a jack-plane many a day, butchered three or four years, then came to this city, and, after three months' perseverance, I obtained a situation in a grocery store. I opened this store early, closed late, slept in the fourth story of the building in a room 80 by 40 feet, and not a human being in the building but my- self. All this I done to live as cheap as I could to save something. I don't want you to take up with this kind of fare. 1 was here in the cholera season of '49 and '52, and the deaths averaged 80 to 125 daily, and plenty of small-pox. I wanted to go home, but Mr. Fisk, the gentleman I was working for, told me, if 1 left them, after it got healthy he probably would not want me. I stayed. All the money 1 have saved I know just how I got it. It did not come to me in any mysterious way, and the reason I speak of this is that money got in this way stops longer with a fellow that gets it with hard knocks than it does when he finds it. Willie, you are twenty-one, and you have many a thing to learn yet. This money you have earned much easier than I did, besides ac- quiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. 1 was ten long years getting this together after T was your age. Now, hoping thi^ will be satisfactory, I stop. One thing more. Twenty-one years ago I bought you 15 sheep. These sheep were put out to double every four years. I kept track of them the first eight years. I have not heard much about them since. Your father and grandfather promised me that they would look after them till you were of age. Ha ve they done so? I hope they have. By this time you have between five and six hun- dred sheep, worth a nice little income this spring. Willie, I have said much more than I expected to. Hope you can make out what I have written. To-day is the seventeenth day that I have not been out of my room, and have had the doctor as many days. Am a little better to day. Think I will get out next week. You need not mention to father, as he always wor- ries about small matters. Truly yours, W'. E. Stoky. p. S. You can consider this money oninterest." The nephew received the letter, and thereafter consented that the money should remain with his uncle in accordance with the terms and conditions of the letter. The uncle died on the 29th day of January, 1887, without having paid over to his nephew any portion of the said $5,000 and interest. H. J. Swift, for appellaut. Adelbert Moot, for resi)ondent. PARKER, J., (after stating the facts as above.) The question which provttkfd the most discui-sion l»y counsel on this ap- peal, and which lies at the foundation of plaintiff's asserted right of recovery, is whether bv virtue of a contract defend- ant's testator, William E. Story, became indebted to his nephew, William E. Story, 2d, on his twenty-first birthday in the sum of $5,000. The trial court found as a fact that "on the 20th day of March, 1869, * * * William E. Story agreed to and rtMth William E. Story, 2d, that if he would refrain from drinking liquor using tobacco, swearing, and playing cards or billiards for money until should become twenty-one years of age, then he, the said William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of .$5,000 for such refraining, to which the said William E. Story, 2d, agreed, and that he " in all things fully performed his part of said agreement." The defend- ant contends that the contract was with- out consideration to support it. and there- fore invalid. He asserts that the prom- DEFINED. 221 isee, by refraining from the use of liquor find tohacco, wuh not luirnied, l)ut bene- fited; that tiiat whicli he did was best for him to do, independently of his uncle's promise, — and insists that it follows that, unless the promisor was benefited, the contract was without consideration, — a contention whicli, if well founded, would seem to leave open for controversy' in many cases whether that which the I)romisee did or omitted to do was in fact of such benefit to him as to leave no con- sideration to 8uj)port the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The exchequer chamber in 1S75 defined "consideration" as follows: "A valuable consideration, in the sense of the law, may consist either in some riffht, interest, profit, or l)cnefit ac- cruin{2: to the one tnirty, or some forbear- ance, detriment, loss, or responsibility given, Buffered, or undertaken l)y the oth- er. " Courts "will not asic whether the thing which form.s the consideration does in fact benefit the promisee or a third par- tj', or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is mad(! as consideration for the promise made to liim." Anson, Cont. (')8. "In general a waiver of any legal right at the request of another party is a sufficient cojisidera- tion for a promise." Pars. Cont. *444. "Any damage, oi" suspension, or forbear- ance of a right will be suHlcient to sustain a promise." 2 Kent, Comm. (12th Ed.) *4(')'y. Pollock in his work on Contracts, ([•age 1()G,) after citing the definition giv- en by the exchequer chamber, already quoted, says: "The second branch of this judicial description is really the most im- portant one. 'Consideration ' means not so much that one party is profiting as that the other abandons some legal right in the present, or limitshis legal free- dom of action in the future, as an induce- ment for the promise of the first. " Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a pe- riod of years upon the strength of the promise of the testator that for such for- bearance he would give him .f.".,OU(i. We need not speculate on the effort wiiich may have been required to give up the use of those stimulants. It is suHicient that he restricted his lawful freedom of action within certain prescribed limits upoTi the faith of liis uncle's agreement, and now. having fuU^- performed the conditions im- I»osed, it is of no moment whether such I)erformance actually proved a benefit to the promisor, and the court will not in- quire into it; but, were it a proper sub- ject of iiHjuiry, we see nothing in this rec- ord that would pertnit a determination that the uncle was not benefited in a legal sense. Few cases liave been found wliiili may be said to be precisely in point, but such as l)ave been, su|)port the position we have taken. In Sliadwell v. Shad well, 9 C. B. (N. S. ) 159, an uncle wrote to his nephew as follows: "ily dear Lancey : I am so glad to hear of your intended marriage with Ellen Nicholl, and, as I promised to assist you at starting, I am happy to tell you that I will pay you 150 [lounds yearly during my life and until your annual income derived from y(Hir pr(jfessi(;n of a chancery barrister shai! amount to fJOiJ guineas, of which your own admission will be the only evidence that I shall receive or require. Your affectionate uncle, CuA HI, Es Suauwei.i.. " It was held that the promise was binding, and made upon good C(insideration. In Lakota v. Newton, (an unrei)orted case in the supe- ricjr court of Worcester, Mass..) the com- plaint averrefl defendant's i)romise that "if you [meaning the plaintiff] will leave off drinking for a year I will give you $100, " plaintiff's assent thereto, perform- ance of the condition by him, and demand- ed judgment therefor. Defendant de- murred, on the ground, among others, that the plaintiff's declaration did not al lege a valid and su/licient consideration for the agreement of the defendant. The demurrer was overruled. In Talbott v. Stemmons, 12 S. \V. Rep. 297, (a Ken- tucky case, not yet officially reported.) the step-grandmother of the plaintiff made with him the following agreement: "I do i)romise and bind myself to give mv grandson Albert 11. Talbott fioOO at my death if he will never take another cliew of tobacco or smoke another cigar during my life, from this date up to my death ; and if he breaks this pledge he is to refund double the amount to his mother." The executor of Mrs. Stemmons demurred to the complaint on the ground that the agreement was not based on a sufficient consideration. The demurrer was sus- tained, and an apjjcal taken therefrom to the court of appeals, where the de- cision of the court below was reversed. In the opinion of the court it is said that "the right to use and enjoy the use of to- bacco was a right that belonged to the plaintiff, and not forbidden by law. The abandonment of its use maj- have saved him money, or contributed to his iiealth ; nevertheless, the surrender of that right caused the promise, and, having the riglit to contract with reference to the subje.-t- matter, the abandonment of the use was a sulficient consideration to uphold the promise." Abstinence from the use of in- toxicating liquors was held to furnish a good consideration for a promissorv note in Lindell v. Hokes, ()0 Mo. 249. The cases cited by the defendant on chis question are not in point. In Malloi-v v. Uiilett, 21 N. Y. 412; Belknap v. liender, 75 N. Y. 44(5; and Berry v Brown, 107 N. Y. 059, 14 N. E. Rep. 2^9, — the promise was in contra- vention of that provision of the statute of frauds which declares void all i)romises to answer for the debts of third persons unless reduced to writing. In Beaumont v. Reeve, Shir. Lead. Cas. 7, and Porter- field V. Butler, 47 .Miss. I(i5, the question was whether a moral obligation furnishes sufficient consideration to uphold a subse- (juent expr(>ss promise. In Uuvoll v. Wil- son, 9 Barb. 4S7, and Wilbur v. Warren, 104 N. Y. 192, 10 N. E. Rep. 203, the propo sition involved was whether an executory covenant against incumbrances in a deed given in consideration of natural love and 222 CONSIDERATION. affecHon coukl be enforced. In Vandei-bilt V. Schreyer. 91 N Y. 392, the plaintiff con- tracted Witli defendant to build a house, ajri'eeing to accept in part payment there- for a specific bond and mortgage. After- wards he refused to finish his contract un- less the defendant would guaranty its payment, which was done. It was held that the guaranty could not be enforced for want of ccmsideration ; for in building the house the plaintiff only did that which he had contracted to do. And in Robinson v. Jewett, 11(5 N. Y. 40, 22 N. E. Rep. 224, the court simply held that "the performance of an act which the party is under a legal obligation to perform can- not constitute a consideration for a new contract." It will be observed that the agreement which we have been consider- ing was within the condemnation of the statute of frauds, because not to be per- formed within a year, and not in writing. But this defense the promisorcould waive, and his letter and oral statements subse- quent to the date of final performance on the part of the promisee must be held to amount to a waiver. Were it otherwise, the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the stat- ute of frauds, and therefore such defense could not be made available unle^ss set up in the answer. Porter v. Wormser, 94 N. Y. 431, 450. This was not done. In further consideration of the questions presented, then, it must be deemed estab- lislied for the purposes of this appeal that on the 31st day of January, 1875, defend- ant's testator was indebted to William E. Story, 2d, in the sura of |5,000; and, if this action were founded on that contract, it would be barred by the statute of limita- tions, which has been pleaded, but on that date the nephew wrote to his uncle as follows: "Dear Uncle: I am 21 years old to-day, and I am now my own boss; and I believe, according to agreement, that there is due me $5()00. I have lived up to the contract to the letter in every sense of the word. " A few days later, and on February 6th, the uncle replied, and, so far as it is material to this controversy, the reply is as follows: "Dear Nephew; Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have $5,000, as I promised you. I had the money in the bank the day you was 21 years old that I intend for you, and you shall have the money certain. Now, Willie, I don't intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me. 1 would hate very much to have you start out in some adventure that you'thought all right, and lose this money in one year. * * * This money you have earned much easier than I did, besides acquiring good habits at the same time; and you are quite welcome to the money. Hope you will make good use of it. * • » W. E. Stouy. p. S. You can consider this money on interest." The trial court found as a fact that "said letter was received by said William E. Story, 2d, who thereafter consented that said money should remain with the said William E. Story in accordance with the terms and conditions of said letter." And further, "that afterwards, on the 1st day of March, 1S77, with the knowledge and consent of his said uncle, he duly sold, transferred, and assigned all his right, title, and intei'- est in and to said sum of $5,000 to his wife, Libbie H.Story, who thereafter duly sold, transferred, and assigned the same to the plaintiff in this action." We must now consider the effect of the letter and the nephew's assent thereto. W^ere the rela- tions of the parties thereafter that of debtor and creditor simply, or that of trustee and cestui que trust? If the for- mer, then this action is not maintainable, because barred by lapse of time. If the latter, the result must be otherwise. No particular expressions are necessary to create a trust. Any language clearly showing the settler's intention is sufficient if the property and disposition of it are definitely stated. Lewin, Trusts, 55. A person in the legal possession of money or property acknowledging a trust with the as.sentof the cestui que trust becomes from thattime a trustee if the acknowledgment be founded on a valuable consideration. His antecedent relation to the subject, whatever it may have been, no longer con- trols. 2 Story, Eq. Jur., § 972. If before a declaration of trust a party be a mere debtor, a subsequent agreement recogniz- ing the fund as already in his hands, and stipulating for its investment on the cred- itor's account, will have the effect to cre- ate a trust. Day v. Roth, 18 N. Y. 448. It is essential that the letter, interpreted in the light of surrounding circumstances, must show an intention on the part of the uncle to become a trustee before he will be held to have become such; but in an effort to ascertain the construction which should be given to it we are also to ob- serve the rule that the language of the promisor is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. White v. Hoyt, 73 N. Y. 505, 511. At the time the uncle wrote the letter he was indebted to ills nephew in the sum of $5,000, and pay- ment had been requested. The uncle, rec- ognizing the indebtedness, wrote the neph- ew that he would keep the money until he deemed him capal)le of taking care of it. He did not say, "I wiU pay you at some other time," or use language that would indicate that the relation of debtor and creditor would continue. On the con- trary, his language indicated that he had set apart the money the nephew had "earned, " for him, so that when he should be capable of taking care of it he should receive it with interest. He said: "I had the money in the bank the day you were 21 years old that I intend for you, and you shaU have the money certain." That he had set apart the money is further evi- denced by the next sentence: "Now, Wil- lie, I don't intend to interfere with this money in any way until I think you are capable of taking care of it." Certainly the uncle must have intended that his nephew should understand that the prom- DEFINED. 223 iwe not "to iiitcifere with this mone^'" re- ferred to tlie money in tlie bank, which he declared was not only there when the nephew became 21 years old. but was in- tended for him. True, he did not use the word "trust, "or state that the money was deposited in the name of William E. .Story, L'd, or in his own name in trust for liim, but the lanjifuage used must have been intended to assure the nephew that his money had been set apart for him, to be kept without interference until he should be capable of taking care of it, for the uncle said in substance and in effect: "This money you have earned much easier than I did. • • • You are quite wel- come to. I had it in the bank the day vou were 21 years old, and don't intend to in- terfere with it in any way until I think you are capable of taking care of It; and the sooner that time comes the better it will please me." In this dechiration there is not lacking a single element necessary for the creation of a valid trust, and to that declaration the nephew assented. The learned judge who wrote the opinion of the general term seems to have taken the view tliat the trust was executed dur- ing the life-time of deferid;int's testator by payment to the ne[)hevv, but, as it does not appear from the order that the judg- ment waft reversed on the facts, we must assume the facts to be as found by the trial court, and those facts support its judgment. The order appealed from Khoiild be reversed, and the judgment of the special term affirmed, with co.sts pay- able out of the estate. All concur. Is 224 / CONSIDERATION. y A RANN et al. v. HUGHES. \A 'n ' rk (7 Term R. 350, note.) I \ H The declai-ation stated that on the 11th of June, 1764. divers disputes had arisen be- tween the plaintiffs' testator and the defend- ant's intestate, which they referred to arbi- tration; that the arbitrator awarded that the defendant's intestate should pay to the plaintiffs' testator £983. That the defend- ant's intestate afterwards died possessed of effects sufficient to pay that sum; that ad- ministi-ation was granted to the defendant; that Mary Hughes died, having appointed the plaintiffs her executors; that at the time of her death the said sum of £983 was un- paid, "by reason of which premises the de- fendant as administratrix became liable to pay to the plaintiffs as executors the said sum, and being so liable she in consideration thereof undertook and promised to pay &c." The defendant pleaded non assumpsit; plene administravit; and plene administravit, ex- cept as to certain goods &c. which were not sufficient to pay an outstanding bond debt of the intestate's therein set forth &c. The replication took issue on all these pleas. Verdict for the plaintiff on the first issue, and for the defendant on the two last; and on the first a general judgment was entered in B. R. against the defendant de bonis pro- priis. This judgment was reversed in the exchequer-chamber; and a writ of error was afterwards brought in the house of lords, where after argument the following question was proposed to the judges by the lord chancellor, "Whether sufficient matter appeared upon the declaration to warrant after verdict the judgment against the de- fendant in error in her personal capacity;" upon which the Lord Chief Baron Skynner delivered the opinion ,of the judges to this effect— It is undoubtedly true that every man is by the law of natxire bound to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the perform- ance of an agreement made without suffi- cient consideration; such agreement is nu- dum pactum ex quo non oritur actio, and whatsoever may be the sense of this maxim In the civil law, it is in the last-mentioned sense only that it is to be imderstood in our law. The declaration states that the de- fendant being indebted as administratrix promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promi.se, but the promise must be coextensive with the con- Eideration unless some particular considera- tion of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right in consideration of forbearance for a particular time promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right: but here no sufficient consideration occurs to support this demand against her in her personal capac- ity; for she derives no advantage or con- venience from the promise here made. For if I promise generally to pay upon request what I was liable to pay upon request in another right, I derive no advantage or con- venience from this promise, and therefore there is not sufficient consideration for it But it is said that if this promise is in writ- ing that takes away the necessity of a con- sideration and obviates the objection of nu- dum pactum, for that cannot be where the promise is put in writing; and that after verdict, if it were necessary to support the promise that It should be in writing, it wiU after verdict be presumed that it was in writing: and this last is certainly true; but that there cannot be nudum pactum in writ- ing, whatever may be the rule of the civil law, there is certainly noue such in the law of England. His lordship observed upon the doctrine of nudum pactum delivered by Mr. J. WUmot in the case of PUlans v. Van Mierop and Hopkins, 3 Burrows, 1663, that he contradicted himself, and was also con- tradicted by Vinnius in his Comment on Jus- tinian. All contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol; nor is there any such third class as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a considera- tion must be proved. But it is said that the statute of frauds has taken away the neces- sity of any consideration in this case; the statute of frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. His lordship here read those sections of that statute which relate to the present subject. He observed that the words were merely negative, and that executors and adminis- trators should not be liable out of their own estates, maless the agreement upon which the action was brought or some memoran- dum thereof was in writing and signed by the party. But this docs not prove that the agreement was still not liable to be tried and judged of as all other agreements mere- ly in writing are by the common law, and does not prove the converse of the proposi- tion that when in writing the party must be at all events liable. He here observed upon the case of Pillans v. Van Mierop in Bur- rows, and the cast of Losh v. Williamson, Mich. 16 Geo. HI. in B. R.; and so far as these cases went on the doctrine of nudum pactum, he seemed to intimate that they were erroneous. He said that all his broth- ers concurred with him that in this case there was not a sufficient consideration to NECESSITY. 225 support this demand as a personal demand afxainst the defendant, and that its being now supposed to have been in writing malies no diffL'rence. The consequence of which is nOPK.SEL. CAS. CONT. — 15 that the question put to ufl must be answered in the negative. And the judgment In the exchequer-chana- ber was aflBrmed. 226 COKSIDEKATION. HAIGH et al. v. BROOKS.* (10 AdoL & E. 309.) Trinity Term. June 6, 1S39. W. W. Follett, for plaintifiL J. Campbell, Atty. Gen., contra. LORD DENMAN, C. J. Tliis action was brought upon an assumpsit to see certain ae- ceplances paid, in consideration of the plain- tiffs giving up a guarantee of £10,000, due from the acceptor to the plaintiffs. Plea, that the guarantee was for the debt of another, and that there was no writing wherein the consideration appeared, signed by the defend- ant, and so the giving it up was no good con- sideration for the promise. Demurrer, stat- ing for cause that the plea is bad, because the consideration was executed, whether the guarantee were binding in law or not The form of the guarantee was set out in the plea. "In consideration of your being in advance to Messrs. John Lees and Sons, in the sum of £10,000, for the purchase of cotton, I do here- by give you my guarantee for that amo^mt, (say £10,000,) on their behalf. John Brooks." It was argued for the defendant, that this guarantee is of no force, because the fact of. the plaintiffs being already in advance to Ijees could form no consideration for the de- fendant's promise to guarantee to the plain- tiffs the payment of Lees' acceptances. In the first place, this is by no means clear. That "being in advance" must necessarily mean to assert that he was in advance at the time of giving the guarantee, is an asser- tion open to argument. It may, possibly, have been intended as prospective. If the 1 Irrelevant parts omitted. phrase had been "in consideration of your becoming in advance," or, "on condition of your being in advance," such would have been the clear import. As it is, nobody can doubt that the defendant tooli a great inter- est in the affairs of Messrs, Lees, or believe that the plaintiffs had not come under the advance mentioned at the defendant's re- quest Here is then sufficient doubt to make it worth the defendant's while to possess him- self of the guarantee; and, if that be so, we have no concern with the adequacy or inade- quacy of the price paid or promised for it. But we are by no means prepai*ed to say that any circumstances short of the imputa- tion of fraud in fact, could entitle us to hold that a party was not bound by a promise made upon any consideration which could be valuable; while of its being so the promise by which it was obtained from the holder of it must always afford some proof. Here, whether or not the guarantee could have been available within the doctrine of Wain V. Warlters, 5 East, 10, the plaintiffs were induced by the defendant's promise to part with something which they might have kept, and the defendant obtained what he de- sired by means of that promise. Both being free and able to judge for themselves, how can the defendant be justified in breaking this promise, by discovering afterwards that the thing in consideration of which he gave it did not possess that value which he sup- posed to belong to it? It cannot be ascer- tained that that value was what he most re- garded. He may have had other objects and motives; and of their weight he was the only judge. We, therefore, think the plea bad: and the demurrer must prevail Judgment for the plaintiffs. ADEQUACY. 227 JUDY V. LOUDERMAN. (29 N. E. 181, 48 Ohio St 502.) Supreme Coiirt of Ohio. Nov. 17. 1S91. Error to circuit court, Fa\'fttto county. Action by Ileury .ludy a^ainKt Natlifui Loudernian, executor of Henry Louder- man, deceuHed. to recover on a written agreement made by deceased. I'lain tiff's demurrer to the answer beinp: overruled, lie brin{?8 error. Reversed. 'I'iie other facts fully aiipear in the fol- lowinjr statement by DICKMAN, .1. : The orifrinal action was commenced by Henry .ludj', the plaintiff in error, aj^ainst the defendant in error, Nathan Louder- man, executor of the last will and testa- ment of Henry Louderman, deceased. The followinj.?is aco[)y of the petition filed in the court of common i)le.iH of Faj-ette county. "Plaintiff says: On the .5th day • )f October, 18S2, he was the owner and holder of a certain promissory note, signed by one Jesse Louderman, for the sum t)f $2G9.52, dated January 18, 1873, due six months after date, with eif:;ht per cent, interest from date. On said ,">thdaj-of Oc- tober, 18S2, he turned overand surrendered to said Henry Louderman, then in full life, said promissory note; and in consideration therefor said Henry Louderman executed and delivered to plaintiff an agreement of which the following is a copy, viz. : 'New Holland, O., Oct. 5, 18S2. Inconsideration of the following described note oS my son Jesse Louderman, being turned over to me by Henry Judy, the owner and holder thereof, this day,! agree to pay tcjthe said Henry Judy, from my personal estate at my decease, the sum of $209.52. to be paid by my executor or administrator, as the case may be; and I hereby make this a charge and advancement to the heiis of ni3' son, the said Jesse Lo.uderman. The following is a copy of said note: "$20!). 52. Six months after date I promise to i)ay to Henry Judy or order the just and full sum of two hundred and sixty-niiunioUars and fifty-two cents, for value received this 18th day of January, A. D. ]s7;i, bearing eight per cent, interest from date. Jkssk LouDEHMAN." In Witness whercof I have hereunto set mv hand and seal this 5th day of October, A. D. 1SS2. Hkmjy Lou- derman, [Seal.] Signed and sealed in our presence this 5th day of October, lss2. Witness: John LornicuMAN. Natha.v Louderman.' Plaintiff further says that the said Henry Louderman died on the day of ,188—, and that thesaid Nathan Jjouderman is his duly appointed and qualified executor. That on the ■ day of , 1SS5. he presented to the said Nathan Louderman, as such executor, the said claim of this plaintiff, on said agree- ment of Henry Louderman duly certified as required by law, and asked to have the same allowed as a valid claim against the estate of said Henry Loudernian, de- ceased ; but the said Nathan Louderman, as executor, refused to allow the same, anil on the 4th day of April, A. D. 1SS5. indorsed thereon his rejection thereof. There is due to plaintiff by reason of the premises, from the estate of said Henry Loucl(>rnian, de- ceased, the sum of ?L(;!).52. with interest at six per cent, from April 4, 1885. Plaintiff therefore asks Judgment against said de- ft ndant that his said claim be allowed and I)aid out of the estate of said Henry I^ou- dertnan, deceased. " To this petition there was a general demurrer, which was over- rulr'd. The defendant thereup(;n filed the folbjw- ing answer: "And now comes the defend- ant, and, answerinir the plaintiff's petition, says: Tliat for many years pri(jr to the date of said pretended written obligalidu set forth in the petition the said .Jesse Louderman had been dead. That his es- tate was insolvent, and had, long befijre the making of said jjretended agreement, been fully settled ; and said note of said .lesse Loudernian was on said 5th of Oc- tober. 1SS2, and for years before had been, wholly worthless, all of which was then fully known to said f)laintiff. That there was no ])erson who was liable to be or could have been sued thereon or against whom a judgment could have been ren- dered thereon, which plaintiff then well knew. 1 hat said pretended written olili- gation w,i.-> not an instrument required by the laws of Ohio to be sealed. That the alleged and pretended seal attached there- to was simply a pen scrawl, which the de- fendant denies was a seal, or that the said pretended written obligation was a sealed instrument. That said Henry Louderman was in no way connected with or liable in an3' way ou said promissory note of said Jesse Louderman, either morally, legally, or equitably. That said pretend- ed written obligation was and is wholly without consideration, and created no ob- ligation or liabilitj' on said Henry Lou- derman or his estate. The defendant de- nies any indebtedness or liability of said estate to pay the same. The defendant, further answering, says: That there is no personal property of said estate which can be applied to the payment of said written oliligation. That the just and legal debts of said estate are more than all the personal i)roperty. That all the real estate of deceased was specifically de- vised, and there is no estate or property belonging to said estate with which to pay said written obligation, if it should be held to be a valid instrument. Wherefore defendant asks to go hence and recover his costs. " There was a general demurrer to this answer", which was sustained, and the de- fendant excepted. The defendant having failed to make any amendment to his an- swer, it was adjudged that the plaintiff, Henry .ludy, recover of the defendant the sum of $278 and costs, to be levied upon the property of the estate coiiiing into his hands as such executor. Tliecircuit court, on petition in error, held that the court of common pleas erred in sust.-iining the de- murrer to the defendant's answer, reversed the judgment of that court, and remanded the cause for further ])roceedings. Tore- verse the judgment of the circuit court the present petition in error is filed. IJidy S- Putton, for plaintiff in error. iJi/ls Gurdiicr, for defendant in error. DICKMAN, J., (after stating the facts.) If there was no actual consideration for the obligation executed and delivered to the 228 CONSIDERATION. plaintiff iii error, it was competent to prove the want or failure of such consider- ation, uotwithstanding a "scrawl seal" was attached to the instrument. By the act of February 24, 1S84, (1 Curw. Rev. St. 1:.'4,) it was provided " that, in any action founded upon any specialty or written con- tract for the payment of money or deliv- ery of property, the defendant by special p'ea. or b3' notice attached to and filed witii the R-eneral issue, may allege the want or failure of consideration in the whole or any part thereof." This act was repealed' by the act establishing a Code of Civil Procedure, but secticjn 9H of the Code, which is continued in section 5071 of the Revised Statutes, provided that "the defendant may set forth in his answer as many grounds of defense, coun- ter-claim, and' set-off as he maj' have, whether they be such as have been hereto- foredenomiiiated 'legal' or ' eciuitable,' or both." As against a strictly legal cause of action, a defendant, therefore, may now set up an equitable defense, and there- by not only bar the plaintiff's action, but obtain the proper affirmative equitable re- lief connected with the subject-matter. And although the common law, in requir- ing a valuable consideration in order to render an agreement valid and binding, declared, in its strictness, that a seal was cunclusive evidence of such a considera- tion, yet, in determining the rights of par- ties upon equitable principles, a seal has been divested of the apparent sacredness -uith which it was clothed by the comuKm law; and equity, looliing rather to reality than form, does not permit a seal to sup- ply the place of a real consideration, and, notwithstanding the seal, will allow the want or failure of such consideration to be shown in the enforcement of executory contracts of every description. In Rich- ardson v. Bates, 8 Ohio St. 264, it was said by Sdtliff, J.: "Under thestatute of February 24, 1834, allowing the failure, or part failure, of consideration to be given in evidence, in a suit upon a specialty, the facts stated in the answer would have constituted a perfect defense. And the provision of the Code, allowing a defend- ant to set forth in his answer equitable as well as legal grounds of defense, permitted the same defense to be made in this case; and therefore the failure of consideration, stated in the answer, constituted a good defense. " Conceding, then, that it was competent to setup a want or failure of ctjnsidera- tion as a defense to the original action, The decisive question in the case before us is whether the written obligation entered into by Henry Louderraan was wholly without consideration, or was not found- ed upon sufficient consideration to sup- port the plaintiff's action. It is alleged in the answer that for many years prior to the date of the written obligation de- scribed in the petition .Jesse Louderm.an had been dead ; that his estate was insolv- ent, and long before the making of the obligation had been fully settled ; and that the note of .Jesse Louderman was, on the 5th day of October. 1SS2, and for years before had been, wholly worthless, — all of which, it is alleged, was then fully known to the plaintiff. It is evident, however, that the father did not treat the note of his son as without value, for he stipu- lated for the payment to the plaintiff, out of his personal estate at his decease, of a sum equal to the full amount called for by the note. The motive or inducement operating upon the father seems to have been so controlling that he was deter- mined upon paying his son's outstanding note, though postponing payment until his decease, when It was to be paid out of his personal estate, and the sum paid to be a charge and advancement to the son's heirs. For aught that appears, there may have been circumstances, best known to the father, which in his estimation ren- dered his possession of the note a valuable acquisition. And the manifest wish and design of the father to acquire the owner- ship and possession of the note obviously tended to enhance the value of the instru- ment while in the hands of the plaintiff. It cannot well be said, we think, that the chose in action surrendered by the plain- tiff was valueless, or was inadequate as a consideratiou for the execution and de- livery of the written obligation, the ade- quacy or inadequacy of consideration having been left to the free exercise of the judgment of the contracting parties. It is an elementary principle that the law will not enter into an inquiry as to the adequacy of the consideration, but will leave the parties to judge of that for themselves. The reason of the rule is suc- cinctly expressed by Alderson, B., in Pilkington v. Scott, 15 Mees. & W. 657. "Before the decision in Hitchcock v. Coker," 6 Adol. & E. 440, he says, "a no- tion prevailed that theconsideration must be adequate to the restraint. That was, in truth, the law making the bargain, in- stead of leaving the parties to make it, and seeing only that it is a reasonable and proper bargain." It is considered unwise to interfere with the facility of contract- ing, and the free exercise of the judgment and will of the parties, by not allowing them to be sole judges of the benefits to be derived from their bargains. "It is, indeefl, necessary that the consideration should be of some value; but it is suffi- cient if it be of slight value only, or even if it be such as could be valuable to the party promising." 1 Chit. Cont. (Uth Amer. Ed.) 20, and cases cited. When a contract is founded on a transfer of an ar- ticle of property, the authorities are nu- merous in illustration of tliedoctrinethat, in determining adetjuacy of consideration, the extent of benelit derivable from it is not considered. A value, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on the con- tract or promise. "Thus, the mere sur- render and delivery of a letter or other written document which the promisee has a right to keep and retain in his posses- sion is a sufficient consideration for the promise, although the possession of it may turn out eventually to be of no value in a pecuniary point of view, or no bene- fit may have resulted to the one party, nor prejudice to the other, from the sur- render and delivery of the document.," 1 ADEQUACY. 229 Add. Cont. (Sth Ed.) C. In Hni;,'h v. Brooks. 10 Ado). & i:. :;():>, ;;_'(), {he declara- tion In assumpsit Htalcd that tlio defend- ant prcjmised to see certain bills accepted by L. paid at maturity, in consideration that the i)laintilT.s, at ills rccincKt, woidd give up to him a certain j;iiai'anty on l)e- lialf of L., then held by plaintiffs. It was averred that the plaintiffs ffave up the guaranty, l)ut that the defendant did not perform his promise. There was a plea tliat tlie j?uai-ii!ity was a promise to an- swer for the dr i)t of another, and that there was no aKr('«ment in writing where- in any sufficient consideration was stated, according to St. 2!) Car. II. It was lield that it appeared on the i)leadinji.s tliat the j»laint:ffs had delivered something to the defendant, on the faith of liis promise, Avliicli he at the time considered valuable; and tliis being so, and no fraud imf)uted, lie could not afterwards excuse a ijreach of the promise, by alleging that tlie thing given up was not of the value ho luid sup- posed. Lord Drnaia-v, C. J., in delivering the judgment of the court, said : " We are Ity no means prepared to say that an^- cir- cumstances sliort of the imputation of fraud in fact could entitle us to hold tliat a party was not l)ound by a promise made upon any consideration which could be valuable; while of its being so. the prom- ise l)y which it Avas obtained from the holder of it must always afford some proof. Here, whether or not the guaran- ty could have been available witliin the doctrjne of Wain v. Warlters, 5 Ea-^t, 10, tile plaintiffs were induced by the defend- ant's ijromise to part witli something which they might have kept, and the de- fendant obtained what lie desired by means of that promise. Both being free and ai)le to judge for themselves, how can the defendant be jnstilied in breaking this promise, on discovering afterwards that tlie thing in consideration of which he gave it did not possess that value which lie supposed to belong to it? It cannot be ascertained that that value ^-as what he most rej-arded. He ma\- have had other objects and motives, and of their weight he was the only judge." As alleged in tlie original petition, and as stated in the written obligation upon whicli the action is founded, tlie consider- ation of Henry Louilerman's executing and delivering the oljJigation was the sur- rendering and turning over to him of the note of his son. The facts constituting the cause of action were admitted by the demurrer to the petition; and in the an- swer thereto subsequently tiled there was no denial of tlie allegations in the petition as to the consideration of the written ol)ligation. The answer, in the nature of a confession and avoidance, avers, sub- stantially, that the note of Jesse LoudcM'- man was, at the time it was surrendered, and for years before had been, uncollect- ible; and tliat therefore the written obli- I gation was wholly withoutconsifleratloD, and created n(j valid claim against Henr^' Louderman or his estate. If, before and at the time the note was surrendererl, it was not collectible out of Jesse Louder- man's estate, it would notfollow— for rea- sons before assigned —that the written ob- ligation was necessarily without con-id- eraticju. Henry Louderman received fi-o in the plaintiff that for whirl) he contracted, and (jbtained that whifli. by the terms (jf the contract, was evidently deemed by the contracting parties an (djject (jf value. In contemplation of law, there was, in our view, no want or failure of consideration for the written obligation of Henry Lou- derman. It is alleged in the answerof the defendant "that the just and legal debts of said estate of Henry Loiulerman are more than all the i)ersonal pro[)erty, " and "that all the real estate of deceased was specifically devised." Henry Louder- man, by his written oldigation, made tlie claim f)f Henry Judy a debt against his es- tate. It was to be paid out of ids per- sonal estate at his decease, by his execu tor or administrator, as the case miglit be. What was his personal estate? Not, as contended, that which would re- main after the payment of his debts, and out of which a distributive share would ffo to the heirs of Jesse Louderman, but the body of his personal proi)erty exist- ing at the time of his death. The person- al estate is the regular and primary fund for the payment of deljts. and this will be first applied until exhausted. And, "as soon as the executor or administrator shall ascertain that the personal estate in his liands will be insuflicient to jiay all tlie debts of the deceased, " it is made his duty, by statute, to apply to the probate court or the court of common pleas for authority to sell the real estate of the deceased. Section ()1:5(;, Kev. St. Where, for a valuable consideration, one promises to pay a debt out of his personal estate at his decease, without a siiecific limitation to that estate alone, if, at his decease, the personal estate is insufficient to jiay the debt, the creditor will not beiirecluded from res(jrting to the real estate of the debtor, if any there be. Otherwise it might be in the power of the deli tor. in his life-time, to convert his personal into real estate, and tlius evade his obligations by sim[)ly changing the form of his jirop- erty. Under his written cbligaliou, the personal i)roperty of Henry I^ouderman was made the primary fund for the pay- ment of the plaintiff's claim; but if. at his death, his just and legal debts exceeded all his personal property, the residue of his estate, if any, was not thereby dis- ciiarg(>(l from the payment of his debt to the plaintiff. 'I'he demurrer to the an- swer was rightly sustained, and the judg- ment of the circuit court should l)e re- versed, and that of the court of common pleas affirmed. Judgment accordingly. 2o0 ( CONSIDERATION. SCHXELL T. NELL (17 Ind. 29.) Supreme Court of Indiana. Nov. 25, 1S61. Appeal from court of common pleas, Marion county. James Morrison and C. A. Ray, for appel- lant. N. B, Taylor and A. Seidensticker, for appellee. PERKINS, J. Action by .7. B. Nell against Zacliarias Schnell, upon the following instru- ment: "This agreement, entered into this 13th day of February, laoG, between Zach. SchneU, of Indianapolis, Marion county, state of Indiana, as party of the first part, and J. B. Nell, of the same place, Wendelin Lorenz, of Stilesrille, Hendricks coimty, state of Indiana, and Donata Lorenz, of Frickingor, Grand Duchy of Baden, Ger- many, as parties of the second part, witness- eth: The said Zacharias Schnell agrees* as follows: Whereas his wife, Theresa Schnell, now deceased, has made a last will and tes- tament in which, among other provisions, it was ordained that every one of the above- named second parties, should receive the sum of .?20<}; and whereas the said provisions of the will must remain a nullity, for the reason Ihat no property, real or personal, was in tiie possession of the said Theresa Schnell, deceased, in her own name, at the time of her death, and all property held by Zach- arias and Theresa Schnell jointly, therefore reverts to her husband; and whereas the said Theresa Schnell has also been a duti- ful and loving wife to the said Zach. Schnell, and has materially aided him in the acquisi- tion of all property, real and personal, now possessed by him; for, and in consideration of all this, and the love and respect he bears to his wife; and, furthermore, in considera- tion of one cent, received by him of the sec- ond parties, he, the said Zach. Schnell, agrees to pay the above named sums of mon- ey to the parties of the second part, to wit: S200 to the said J. B. Nell; $200 to the said Wondelin Lorenz; and .?2(X) to the said Do- nata Lorenz, in the following installments, viz., $200 in one year from the date of these presents; .?200 in two years; and $200 in three years; to be divided between the par- ties in equal portions of $GG% each year, or as they may agree, till each one has received his full sum of $200. And the said parties of the second part, for, and in consideration of this, agree to pay the above named sum of money (one cent), and to deliver up to said Schnell, and abstain from collecting any real or supposed claims upon him or his es- tate, arising from the said last will and tes- tament of the said Theresa Schnell, deceased. In witness whereof, the said parties have, on this 13th day of February, 18.5G, set here- unto their hands and seals. Zacharias B. Nell. [Seal.] Wen. Schnell. [Seal.] J. Lorenz. [Seal.]" The complaint contained no averment of a consideration for the instinimcnt, outside of those expressed in it; and did not aver that the one cent agreed to be paid, had been Ijaid or tendered. A demurrer to the complaint was over- ruled. The defendant answered, that the instru- ment sued on was given for no consideration whatever. He further answered, that it was given for no consideration, because his said wife, Theresa, at the time she made the will men- tioned, and at the time of her death, owned, neither separately, nor jointly with her hus- band, or any one else (except so far as the law gave her an interest in her husband's property), any property, real or personal, etc. The will is copied into the record, but need not be into this opinion. The court sustained a demurrer to these answers, evidently on the ground that they were regarded as contradicting the instru- ment sued on, which particularly set out the considerations upon which it was executed. But the instrument is latently ambiguous on this point See Ind. Dig. p. 110. The case turned below, and must turn here, upon the question whether the instru- ment sued on does express a consideration stifficient to give it legal obligaRon, as against Zacharias Schnell. It specifies three dis-. tinct considerations for his promise to pay $000: (1) A promise, on the part of the plaintiffs, to pay him one cent. (2) The love and affection he bore his de- ceased wife, and the fact that she had done her part, as his wife, in the acquisition of the property. (3) The fact that she had expressed her de- sire, in the form of an inoperative will, that the persons named therein should have the sums of money specified. The consideration of one cent will not sup- port the promise of Schnell. It is true, that as a general proposition, inadequacy of consider- ation will not vitiate an agreement Baker V. Roberts, 14 Ind. 552. But this doctrine does not apply to a mere exchange of sums of money, of coin, whose value is exactly fixed, Tjjit tn thQ-^-vrVinri£0 of_Somcllung_of, in itself, indoter i'lioa te value, for m miev^ or, perhaps, for other thing of indeterminate value. In this case, liad the one cent men- tioned been some particular one cent a fam- ily piece, or ancient, remarkable coin, pos- sessing an indeterminate value, extrinsic from its simple money value, a different view might bo taken. As it is, the mere promise to pay six hundred dnllai's for one cent, even had the jwrtion of tliat cent due from the plaintiff been tendered, is an unconscionable contract void, at first blush, upon its face, if it be regarded as an earnest one. Hardesty ADEQUACY. 231 V. Smith, 3 Ind. 39. The consideration of one cent Is, plainly, In this case, merely nominal, and Intended to be so. As the will and tes- tament of Schnell's wife imposed no legal ob- ligation upon him to discharge her bequests out of his property, and as she had none of her own, his promise to discharge them was not legally binding upon him, on that ground. A moral consideration, only, will not supixirt a promise. Ind. Dig. p. 13. And for the same reason, a valid consideration for his promise cannot be found in the fact of a com- promise of a disputed claim; for where such claim Is legally groundless, a promise upon a compromise of it, or of a suit upon it, is not legally binding. Spahr v. HoUingshead, 8 Blackf. 415. There was no mistake of law or fact in this case, as the agreement admits the will inoperative and void. The promise was simply one to make a gift The past services of his wife, and the love and affec- tion he had borne her, are objectionable as legal considerations for Schnell's promise, on two grounds: (D They are past considera- tions, thd. Dig. p. 13. (2) The fact that Schnell loved his wife, and that she had been industrious, constituted no consideration for his promise to pay J. B. Nell and the Lorenzes a sum of money. Whether, if his wife, in her lifetime, had made a bargain with Schnell, that, in con-sideration of his promising to pay, after her death, to the person named, a sum of money, she would be industrious, and worthy of his affection, such a promise would have been valid and consistent with public policy, we need not decide. Nor is the fact that Schnell now venerates the memory of his deceased wife, a legal consideration for a promise to pay any third person money. The instrument sued on. Interpreted in the light of the facts alleged hi the second para- graph of the answer, will not support an ac- tion. The demurrer to the anfswer should have been ovenoiled. See Stevenson v. Dru- ley, 4 Ind. 5ia PER CURIAM. The Judgment is reversed, with costs. Cause remanded, etc 282 CONSIDERATION. COLEMAN T. EYRE. (45 N. Y. 380 CoTirt of Appeals of New York. Feb. 21, 1871. W. M. Macfai-land, for appellants. John H. Reynolds, for respondents, RAPALLO, J. The plaintiff was interest- ed to the extent of one-fourth in the profits or losses of a shipment of coffee undertaken by him jointly with other parties. After the adventure had been begun, and before the coffee had reached its port of destination, it was mutually agreed between the plaintiff and the defendant that the latter should have one-half interest in the plaintiff's one-fourth interest in the adventure. The speculation resulted in a loss, and this action was brought to recover one-half of the plaintiff's propor- tion of such loss. It is now claimed on the part of the defendant that no valid contract was made between him and the plaintiff; that inasmuch as the plaintiff had embarked in the speculation before and without refer- ence to any arrangement with the defendant, and the defendant had not done or con- tributed any thing to aid in the joint enter- prise, there was no partnership, and no con- sideration for the undertaking of the plaintiff to give him one- half of the profits; that there- fore the defendant could not have enforced payment of half the profits, if the adventure had been successful, and consequently no agreement on Ms part to contribute to the loss can be implied. This argument assumes that the agreement was simply that the defendant should have one-ba.Jf of the profits, which the plaintiff might make out of the adventure, in case it should prove suecessfuL But such was not the agreeraent proved. The agreement was that the flefenda.nt should share with the plaintiff in the adventure, and it seems to havp been clearly understood tJiat he should participnhe tn the result, whether it should prove a prufit or a loss. That It might result in a loss was contemplated by the parties. There is evi- dence in the case that the possibility of tlat event was the subject of conversation be- tween them at the time of making the con- tract; tliat the hope was then expressed that the plaintiff would not be compelled to call upon the defendant to contribute to a loss; and that afterwards, when they did caU upon him to contribute, he did not dispute his lia- bility, but sought to reduce the amount by claiming a portion of the i^aintiff's commis- sions. The evidence fully justified a ficnding that in consideration of the agreement by the plaintiffs to account to the defendant for half the profits in case of success, the defendant undertook to bear half the loss in the con- trary event; and the intendment is that the referee did so find. Indeed, .such is a propar construction of the actual finding. It is a clear case of mutual promises; and the obli- gation of each party was a good considera- tion for that of the other. Briggs v. TfQot- son, 8 Johns. 304. The evidence was conflicting as to whether the defendant was to share in the commis- sions. The referee found in the plaintiffs' favor on that point, and the court below, at general term, refused to interfere with that finding. We cannot disturb it. The agreement was not within the statute of frauds. It was not an agreement for the sale of any personal property or chose iji action, but an executory agreement, whereby one party undertook to bear one port of a possible loss in consideration of a share of an expected profit. The judgment of reversal and order grant- ing a new trial should be revised, and the judgment for the plaintiffs entered on the re- port of the referee should be affinned, with costs. All concur. Order of general term reversed, and judg- ment for the plaintiffs affirmed. ^ < MUTUAL PROMISES. 233 SEWARD et al. v. MITCHELL.. / (1 Cold. 87.) Supreme Court of Tennessee. Nov. Term, 1859. T. J. E'reeman, for plaintiffs lu error. M. R. Hill, for defendant in error. CARUTHERS, J. On the IGth Oct. IS.jG, Mitchell sold to Seward & Scales, for the consideration of ?8,596.50, a tract of laud in the county of Gibson, described in a deed of that date, by metes and bounds, "containing 521 acres, being a part of a 5000-acre tract granted to George Dougherty, and bounded as follows," etc. The title is warranted with the usual cov- enants, but nothing more said about the grants than what is above recited. Some time after the deed was made, the parties, differing as to the quantity of land embraced in the tract, made an agreement, that it should be surveyed by Gillespie, and if there were more than five hundred and twenty-one acres, the vendee should pay for the excess at the rate of $1G.J50 per acre, that being the price at which the sale was made, and if less, then the vendor should pay for the deficiency, at the same rate. It turned out that there was an excess of fiity- seven acn>-<. and the tract embraced in the deed was five hundred and seventy -eight acres, instead of five hundred and twenty- one, as estimated In the sale. For this ex- cess, the present suit was brought, and re- covery had, for ?1,079. It is objected here, that the court below erred in refusing to charge, as requested, that the agreement sued upon was void for want of a writing, and because there was no considei*ation for the promise. 1. The contract, or promise sued upon, is not for the sale of land, so as to require a writing, under the statute of frauds. The sale had already been reduced to writ- ing. This was a subsequent collateral agree- ment in relation to the price, which was binding by parol and to which the statute can have no application whatever. This is too plain for argument. 2. There is more plausibility in the second objection, that there was no sufficient con- sideration for the promise. But this Is also untenable. The argument Is that the deed embraced the whole tract, and passed a per- fect title to the extent of the boundaries, and consequently there was nothing passing as a consideration for the new promise that the party did not own before by a perfect legal right. It is true that if the sale was by the tract and not by the acre, as appears from the deed, and no stipulations as to quantity, that the title was good for the whole and covered the excess. But, if the sale was not in gross, but by the acre, and the recitation In the deed would not be conclusive in a court of equity on that point, if the fact could be shown to be otherwise, then there would bo mutual remedies for an excess or deficiency in proper cases, as we held in Miller v. Bents, 4 Snoed, and a more recent case; but, independent of that, and taking it to have been purely a sale in gross, and both parties desiring to act justly, and being of different opinions as to the quantity, mutual- ly agreed to abide by an accurate survey to ascertain which was bound to pay, and re- cover from the other, and what amount. We see no good reason in law or morals, why such an agreement should not be bind- ing upon them. The case of Howe v. O'Mal- ley, 1 Murph. L. & Eq. R. 287, is precisely in , \ point The court there held that a promise I to refund in case of deficiency, is a good ^consideration for a promise to pay for any iexcess over what is called for in the deed. That such mutual promises are sufficient considerations for each other. I The case of Smith v. Ware, 13 Johns. 259, which is supposed to conflict with this, is entirely different; "there was no mutuahty," because the promise sued upon was to pay for the deficiency, without any obligation on the other party to pay for an excess, if any there had been. The principle of the North Carolina case, commends itself to our approbation, because of its equity and justice. Without further citation of authorities, we are satisfied to hold that the promise in this case was binding upon the defendant, as his honor charged, and therefore affirm the judg- ment i; k^ 234 CONSIDERATION. PRESBYTERIAN CHURCH v. COOPER et al. /) (20 N. E. 352, 112 N. Y. 517.) y Court of Appeals of New York. March 5, 1SS9 Appeal from supreme com't, general term Third department Action by the Presbyterian Church of Al- bany ajjainst Thomas C. Cooper and another, administrators of Thomas P. Crooli, deceased, on a subscription made by the decedent to- wards paying ofE a mortgage debt owing by the plaintiff. .Judgment was given for de- fendants, and plaintiff appeals. Matthew Hale, for appellant Walter E. Ward, for resjKjndents. ANDREWS, J. It is, we think, an insuper- able objection to the maintenance of this ac- tion that there was no valid consideration to uphold the subscription of the defendants' intestate. It is of course unquestionable tJia't no action can be maintained to enforce a gratuitous promise, however worthy the ob- ject intended to be promoted. The perform- ance of such a promise rests wholly on the will of the person making it He can refuse to perform, and his legal right to do so cannot be disputed, although his refusal may dis- appoint reasonable expectations, or may not be justified in the forum of conscience. By the terms of the subscription paper the subscribers promise and agree to and with the trustees of the First Presbyterian Church of Albany to pay to said trustees within three years from its date the sums severally sub- scribed by them, for the purpose of paying ofC "the mortgage debt of $45,000 on the church edifice," upon the condition that the whole sum shall be subscribed or paid in with- in one year. It recites a consideration, viz.: "In consideration of one dollar to each of us (subscribers) in hand paid, and the agreement of each other in this contract contained." It was shown that the one dollar recited to have been paid was not in fact paid, and thefactthat the pro mi.se of g ^ch gulj gcribc j ^yas'lw Sfl^!!!]^ reaTT^~of''an S^ reliance uponsi m jiar .pi'QrQ- Is es^ljy "tKe*'^rEers, constitutes no copsiclora- tion~ as between tn||^ca2oratijaa-''ior whose Benefit Jthe promise was~'made..and.the promis- 5rs. The TecitaT^o'f a cwTSIfleration paid does not preclude the promisor from disputing the fact in a case like this, nor does the stiite- ment of a particular consideration, which on its face is insufficient to support a promise, give it any validity, although the fact recited may be true. It has sometimes been suppos- ed that when several persons promise to con- tribute to a common object desired by all, the promise of each may be a good considera- tion for the promise of others, and this al- though the object in view is one in which the promisors have no pecuniary or legal inter- est, and the performance of the promise would not in a legal sense be beneficial to the promisors entering into the engagement This seems to have been the view of the chan- cellor, as expressed In the Hamilton CoUege Case, when it was before the court of errors, (2 Denio, 417;) and dicta of the judges will be found to the same efl'ect in other cases. Trustees v. Stetson, 5 Pick. 508; Watkins v. Eames, 9 Cush. 537. But the doctiine of the chancellor, as we understand, was repudiated when the Hamilton College Case came before this court, (1 N. Y. 581,) as have been also the dicta in the Massachusetts cases, by the court in that state, in the recent case of Church V. Kendall, 121 Mass. 528. The doc- trine seems to us unsound in principle. It proceeds on the assumption that a stranger both to the coasideration and the promise, and whose only relation to the transaction is that of donee of an executory gift, may sue to enforce the payment of the gratuity for the reason that there has been a breach of contract between the several promisors, and a failure to carry out, as between themselves, their mutual engagement. It is in no proper sense a case of mutual promises as between the plaintiff and defendant If any action would lie at all, it would be one between the promisors for breach of contract. In the disposition, therefore, of this case, we must reject the consideration recited in the subscription paper as groimd for support- ing the promise of the defendants' Intestate, —the money consi derati on,— because it had no basis in fact, aiW TIi^"mutual promise be- ' tw^^t-n^tbe"" su bscnbe rs, becau se^__as_.to__Jbeir promises there is noprivify'of co njHHlbetween ■thii IjUiluLlli iiuiPthe promisorsT Some con- sirlfcrilLibU mUfelL Lhyiefure be'tound other than that expressly stated in the subscription paper in order to sustain the action. It is urged that a consideration may be found in the ef- forts of the trustees of the plaintiff during the year, and the time and labor expended by them during tliat time, to secure subscriptions in order to fulfill the- condition upon which the liability of the subscribers depended. There is no doubt that labor and services ren- dered by one party at the request of another would constitute a good consideration for a promise made by the latter to the former, based on the rendition of the service. But the pLaintiff encounters the difficulty that there is no evidence, express or implied, on tlie face of the subsa-iption paper, nor any evidence outside of it, thgUJie^corporation or its _trustcef! di^, or_unde'rtook^td 35^ ghyfSTng npnii th.Q^JnYilation or request of IBe^sub- scribers. IsfoTlOTjere " aTfy^evidPnce'thlTE' the tnisieos' of the plaintiff, as representatives of the corporation, in fact did anything in their corporate capacity, or otherwise than as individuals interested in promoting the gen- eral olijcct in view. Leaving out of the sub- scription paper the affirmative statement of the consideration, (which for reasons stated may be rejected,) It stands as a naked prom- ise of the subscribers to pay the several amounts subscribed by them for the purpose of paying the mortgage on the church prop- erty, upon a condition precedent limiting their MUTUAL PROMISES. ZX liability. Neither the church nor the trustees promLse to do anything, nor are they request- er] to do anything, nor can such a request be imi)lied. It was held in the Hamilton College Case, 1 N. Y. 581, that no such request could be implied from the terms of the suljscripUon In that case, In which the ground for such an implication was, to say the least, as strong as in this case. It may be assumed from tlie fact that the subscriptions were to be paid to the trustees of the church for the purpose of paying the mortgage that it was under- stood that the trustees were to make the payment out of the moneys received. Rut the duty to make such payment in case tJiey accepted the money, would arise out of their duty as trustees. This duty would arise up- on the receipt of the money, although they iiad no antecedent knowledge of the subscrip- tion. They did not assume even this obliga- tion by the terms of the subscription, and the fact that the trustees applied money paid on subscriptions upon the mortgage debt did not constitute a consideration for the promise of the defendants' Intestate. We are unable to distinguish this case in principle from the Hamilton College Case, 1 N. Y. 5S1. There is nothing that can be urged to sustain this subscription that could not with equal force have been urged to sustain the subscription in that case. In both the promise was to the trustees of the respective corpoi'ations. In each case the defendant had paid part of his subscription, and resisted the balance. In both part of the subscription had been collected and applied by the trustees to the purpose specified. In the Hamilton College Case, (which in that respect is imlike the present one,) it appeared that the trustees had incur- red expense in employing agents to procure subscriptions to make up the required amount, and it was shown also that professors had been employed upon the strength of the fund sub- scribed. The Hamilton College Case is a con- trolling authority In this case. It has not been overruled, and has been frequently cited with appnjval in the courts of this and other states. The cases of Barnes v. Ferine, 12 N. Y. IS, and Roberts v. Cobb, 103 N. Y. GOO, 9 N. E. GOO, are not in conflict with the decision in the Hamilton College Case. There is, we sup- pose, no doubt that a subscription invalid at the time for want of consideration may be made vaUd and binding by a con.sideration arismg subsequently between the subscribers and the church or corporation for whose bene- fit it is made. Both of the cases cited, as we undorst;ind them, were supported on this prin- ciple. There was, as was held by the court in each of these cases, a subsequent recjuest by the subscriber to the promisee to go on and render service, or incur liabilities, on the faith of the subscription, which request was com- plied with, and services were rendered or Ija- bihties incurred pursuant thereto. It was as if the request was made at the very time of the subscription, followed by performance of tlie request by the promisor. Judge Allen, in his opinion in Barnes v. Ferine, said "the re- quest and promise were to every legal eCLect simultaneous;" and he expressly disclaims any intention to interfere with the decision in the Hamilton College Case. In the present case it was shown that indi- vidual trustees were active in procuring sub- scriptions. But, as has been said, they acted as individuals, and not in their official ca- pacity. They were deeply interested, as was ;Mr. Crook, in the success of the effr,rt to pay the debt on the church, and they acted in uni- son. But what the trustees did was not prompted by any request from Mr. Crook. They were all co-laborers in promoting a com- mon object. We can but regret that the in- tention of the intestate in respect to a mat- ter in which he was deeply interested, and whose interest was manifested up to the very time of his death, is to be tliwarted by the conclusion we have reached; but we think there is no alternative, and that the Judgment must be affirmed. AU concur. CONSIDERATION. KEEP et al. v. GOODRICH. (12 Johns. 397.) Supreme Court of New York. Oct., 1815. Th^i was an action of assumpsit. The decla- i-ation contained three counts. The first stat- ed, that certain differences having arisen be- tween the plaintiffs, as executors of Nathan Hale, deceased, and the defendant, concern- ing a promissory note, made by the defendant to their testator, dated the 7th day of Feb- ruary, 1797, by which the defendant promised to pay him. for valui? received, fG9 3s. 8d. lavful money, on demand, with lawful inter- est, at sir per eftnt- in certain liquidated se- curities given by the treasurer of Connecti- cut; and that to put an end to such differ- ences, the parties, heretofore, to wit, &c., "re- Bpectivelv submitted themselves to the award of John Elmore, to be made between them, of and concerning the said differences; and iri consideration thereof, and that the plain- tiffs, at the special instance and request of the defendant, hiid, then and 'there, undertaken j and j^romised the defendant to perform and fulfil thf-' awa\-d of the said John Elmore, to be mad?, &c of and concerning the said dif- ference?, in aH thingi? on their part to be perfonned aad fulfilled, he, the defendant undffrtooli. &e. to perform and fulfil the said award, in all tilings," &•_•. The plaintiffs averred that Earaore, having taken upon him- self the biQtfcen of the arbitrament, did, en the 15th of Mfl.y, 1814, at, &c, make his award in writing, &c., and thereby awarded, that the defendant shculd pay the said plaintiffs., fts ((ixecutors aforesaid, the snm of 391 dollars aiid 31 centE, in fuU satisfaction of their cluiia Oil the sj-.id note, of which said award, th^ Pif.:fA «el€Gdani., afterwards, to wit, &c., had notice; Jind although often requested, «S:c. to pa7 tW said tmm, &c., according to the tenor and eiftct of tee said Kward, and of his prom- ise, &(.:; yet, not regarding, &c., he did not pay, &ic. The second count was on an insimnl cornptitassent The third count was also on an insimul computassent, with the plaintiffs, as executors, &c The defendant pleaded the general issue, with notice of set-off. At the trial, the plaintiffs give in evidence a letter of the defendant, dated Albany, Au- gust 19th, 1811, addressed to John Elmore, In which, speaking of the claim of the plain- tiff.s, and alleging that he owed nothing, he says: "But I have agreed for you to say what I shall do in this case, and hold myself obli- gated accordingly," &c. On the 23d of No- vember, 1811, the defendant again wrote to Elmore on the same subject, and promised to send him some papers relative to his pay- ments, &c. On the 8th of January, 1814, he again wrote to Elmore, and, after mentioning that he had been called on again by the plaintiffs, about the business, he says: "I still wish you to make up your mind on this business, as I am willing to agree to your decision, and abide your judgment." The defendant, on the 8th of January, 1814, wrote to ELmore as follows: "I wrote you some time since, concerning Squire Hale and myself. I wish you to make up your mind according to what you have understood, as you have had more knowledge than any other person about my business. I think I made a kind of statement to you. I am called upon by Mr. Keep, and have renewed a line to j-ou on the matter; and I wish you to look in- to the business, and give your opinion, for a full settlement of the business," &c. "N. B. I am willing to have the note matter settled on your opinion." On the 28th of January, 1814, Elmore, who lived at Canaan, in the state of Connecticut, wrote to the defendant, at Albany, acknowl- edging the receipt of Jiis letter of the 8th of Januai-y, saying he should have no objection to determine what was right in the matter, if they (the plaintiffs) would agi-ee to it, after having the circmnstances stated to him again, as they were somewhat out of his mind. "But they will not agree to abide my judg- ment; for J. Hale (one of the plaintiffs) told me, when he called on me, some time since, for my opinion in the matter, that you was bound to abide my judgment, but he was not, unless he liked it. I then told him, I would not determine it, unless he was bound also. If they will agree with you, to refer their claim to me, and give me a statement of the fact, I will determine the question be- tween you." Elmore testified, that he had not seen the defendant for some time previous to the 19th of August, 1811, nor since, until after he made his award; and that the defendant had never appeared before him, nor submitted the mat- ter in controversy to him, otherwise than as is contained in the above letters. That after writing the letter to the defendant, of the 2Sth of January, 1814, one of the plaintiffs, who resided at Goshen, in Connecticut, called on him, and agreed that they would be bound, and abide by his award. No notice of the time and place where he would meet, to make up an award, was given by him to the defendant; nor did he inform the defendant, that he had taken upon himself to decide be- tween the parties; nor that the plaintiffs had agreed to abide by his decision; nor was the defendant present when he undertook to make up his decision. The plaintiffs produced an award in writ- ing, dated Canaan, May 15th, 1814, which, after reciting that the plaintiffs, as execu- tors, &c. and the defendant, had submitted the controversy subsisting between them, relative to a promissory note, &c., and that, "having heard the parties, and taken the case into consideration," he was of opinion that there was due to the plaintiffs, as ex- ecutors, &c., on the said note, 391 dollars and 31 cents; and. therefore, he awarded, that the defendant should pay to the plain- MUTUAL PROMISES. 237 tiffs the said sum, In full satisfaction for their claim on the said note. The judge charged the jury, that, in his opinion, there was sufHcient evidence of a submission, on the part of the defendant, of the matter in difference between the plain- tiffs and defendant; and that, without re- garding the matter as a submission to El- more, he might be considered as having been constituted the agent of the defendant, to adjust and ascertain the amount duo on the note. The jui-y found a verdict for the plain- tiffs, for 417 dollars and 50 cents. A motion was made to set aside the ver- dict, and for a new trial. Mr. Parker, for the motion, H. Bleecker, opposed. SPENCER, J. It is very clear, that El- more did not act as the private agent of the defendant, in adjusting the claim made on him by the plaintiffs. He made a formal award between the parties, and refused to act, unless the plaintiffs agreed to be boimd also. The count on an insimul computassent cannot be maintained. The real question is, whether the defend- ant is bound by the award, it appearing clearly in evidence, that the plaintiffs re- fused to be concluded by it, up to the 2Sth of .January, 1S14. Subsequent to that time, the plaintiffs agreed to be bound by the award; but the defendant's agreement to submit to Elmore, and to be bound by his decision, was on, or anterior to, the Sth of January, 1814; so that there was no point of time when both parties bound themselves, by agreement with each other, to submit their controversy to Elmore, and to be bound by his awai'd. In Livingston v. Rogers, 1 Caines, 583, it was decided, that in assumpsit on mutual promises, the declaration must allege that they were concurrent. In that case, the promise was stated, "and that in considera- tion the plaintiffs had, at the defendant's request, promised to perform his part; the defendant, afterwards, to wit, the same day, promised," &c. The court were of opinion that the judgment ought to be arrested; but there being a good count, and a motion to amend, leave was given for that pu. -pose, on payment of all the costs. The only consideration, in this case, for the defendant's promise, is the plaintiffs' promise; and It is alleged, in both counts on the award, that the defendant's promise was made in consideration of the plaintiffs' promise, and both promises are laid as con- current acts; and we have seen, that if the promises were not alleged to have been made concurrently, it would have been good ground for arresting the judgment. It is a necessary consequence, that the proof should support this allegation in the declaration, and show that, in point of fact, the promises were considerations reciprocally for the par- ties. Here the proof negatives the fact, that the consideration of the defendant's promise to submit and abide by the award of Elmore, was, that the plaintiffs had, at the same time, made the like promise; for it clearly appears that the plaintiffs refused to submit and be bound by Elmore's award, long after the defendant professed a willingness to make the submission. In Tucker v. Wo*^)ds, 12 Johns. 190, we recog- nized the principle that, in contracts where the promise of one party is the consideration for the promise of the other, the promise must be concurrent and obligatory upon both at the same time; and, in addition to the case in Caines, 1 Chit. PI. 297, and 3 Term R. G.o3, were cited, which fully warrant the position. The same doctrine is contained in Paine v. Cave, 3 Term R, 148, and in King- ston V. Phelps, Peake, N. P. 227. The plain- tiff' proved that the defendant consented to be bound by an award to be made on a snb- mi.ssion by other underwriters on the same policy, but the witness proved no agreement on the part of the plaintiff to be bound by the award. Lord Kenyon held, that there was no mutuality, and, therefore, the de- fendant's agreement was a mere nudum pactum. It is correctly stated by Kent, J., in Livingston v. Rogers, that Hobart (SS) observes, that the promises must be at one instant; for, else, they wiE be both nuda pacta. There must be a new trial, with costs to abide the event of the suit New trial granted. CONSLDERATION. y L'AMOREUX T. GOULD. (7 N. y. 349.) Court of Appeals of New York. 1852. The defendant in this action was an en- dorser upon five promissory notes made by J. W., amounting in the aggi-egate to $1,140. Two of them, amounting to $490, had be- come payable before May 2G, 1S41, and the remaining three were payable after that day. The defendant held as trustee a judgment against Woodward given to secure certain creditore, and among them the plaintiff as endorser of the notes. Upon that day an agreement in writing was entered into be- tween the defendant and plaintiff of which the following is a copy: "James L'Amoreux, Esq., being an endors- er on several notes drawn by J. W., some of which have become due, and on some of them prosecutions have been commenced, and thie subscriber having a judgment ren- dered in his faVor against the said J. W. en- tered in the supreme court for securing cer- tain creditors agreeably to a certain decla- ration of trust in writing in which the en- dorsers on the defendant's paper are in- cluded in the first class of creditors and in which it is declared that such creditors shall be first paid: Now in consideration of the premises and in consideration that the said .James L'Amoreux shall advance and pay the sum of one thousand dollars towards satisfying or in part satisfying the notes on which he is holden as endorser as aforesaid, and shall exhibit to the said Charles D. Gould the evidence of such payment; the said Charles hereby agrees with the said James, that within one year from this date he will cause to be raised under the said judgment given as aforesaid the said sum of one thousand dollars with interest, and will pay the same over to the said James in sat- isfaction of the money so to be advanced towards satisfying said endorsements. "Charles D. Gould. "Dated August 2G, 1841." The plaintiff subsequently paid the five notes and exhibited them to the defendant, at the same time teUiug him that he did it in compliance with the agreement, and the defendant replied that it was all right. The defendant refusing to comply with the terms of the agreement an action of assumpsit was brought thereon in September, 1842. The cause was tried by a referee, who found for the plaintiff the amount due by the terms of the agreement, upon which a judgment was entered in November, 1848. The defendant appealed therefrom. J. C. Spencer, for appellant. N. Hill, Jr., for respondent EDMONDS, J. (after disposing of some ob- jections arising upon the pleadings which were cured by the finding by the referee). The only question to be determined, there- fore, is, whether there was such a want of mutuality between the parties that there was in fact no cause of action. The proposition is stated by Chitty as broadly as the defendant's counsel claims it, that if the one party never was bound on his part to do the act which forms the con- sideration for the promise of the other, the agreement is void for want of mutuality (Chit. Cont. 15); but the proposition is too broadly stated. It is confined to those cases where the want of mutuality would leave one party without a valid or available con- sideration for his promise. Arnold v. Mayor of Poole, 4 Man. & G. 860. For there are many valid contracts not mutually binding at the time when made; as where A. says to B., if you will furnish goods to C. I wiU pay for them, B. is not bound to furnish them, but if he does he may recover on the promise. 2 Saund. 137h; Morton v. Burn, 7 Adol. & E. 19; Kennaway v. Treleavan, 5 Mees. & W. 498. And the question in this case is not whether the plaintiff was bound to pay the $1,000, but whether, if he did pay it, the defendant was without any valid or available consideration for his promise. The agreement is, that if the plaintiff will pay $1,000 on notes on which he is holden as in- dorser, etc. Now I am not very clear wheth- er this means on notes on which he was ab- solutely fixed and liable as indorser by means of due protest, or those on which he was merely liable to be, in case of non-pay- ment by the drawer. The pleading do not help us out of the difliculty at all, but the evidence shows that three of the five notes were not due at the time the agreement was made, and the agreement recites that he was indorser on several notes some of which had become due, etc. Those notes which had become due at that time and on which alone the plaintiff could then have become "holden" by due protest, did not amount to one-half of the $1,000 that he was to pay, while all of the five notes which he had in- dorsed amounted to more than $1,000. I should infer that the parties meant by this equivocal expression to refer to the fact of his indorsement only, and not to the fact of his being fixed as indorser. This is a ma- terial consideration, because if the plaintiff was to pay the $1,000 merely upon notes up- on which he was finally fixed and "holden" by due protest, he would do nothing more by paying that sum than merely discharge an obligation which he was bound to perform, and that would form no consideration for the defendant's promise. But if on the other hand he voluntarily paid the money, without reference to his being fix- ed as indorser, and in fact waived the va- rious acts of demand and protest which were neces.sary to fix him as indorser, he thus as- sumed a liability and performed an act detri- mental to himself, which would furnish a good consideration for the promise. And in- MUTUAL PROMISES. 239 ferring as I do from the facts proved on the trial and from the language of the agreement that the parties meant all Uie notes, as weU those not due as those due and protested, I have no difficulty in finding a sufficient con- sideration to support the promise, in the fact of the plaintiff's having paid the $1,000 and thus enlarged his liability beyond what It was when the agreement was made. This disposes of the only point not cured by the finding, and I am of opinion the Judgment ought to be affirmed. All the judges concurred. Judgment affirmed. ''240 CONSIDEKATION. DAVIE et al. t. LUMBERMAN'S MIN. CO. (53 N. W. 625, 93 Mich. 491.) Supreme Court of Michigan. Nov. IS, 1S92. Error to circiiit cotirt, Menominee county; John W. Stone, Judge. Action by Josiah Davie and another against the Lumberman's Mining Company for breach of contract From a judgment for plaintiffs, defendant appeals. Reversed. Ball &, Hanscom. (B. J. Brown, of counsel,) for appellant. R. C. Flannigan, (F. O. Clark, of coiinsel,) for appellees. DURAND, J On October 7, 1889, the plaintiffs, who were practical miners, en- tered into a verbal agreement with the de- fendant company, through its mining cap- tain, to go to work in what is called the "Cave Pit," and were to receive $1.50 per ton for all the ore they produced, as long as they could make it pay. The plaintiffs prac- tically agree that the mining captain, with whom the contract was made, said to them that he would give $1.50 a ton for all the ore they could produce anywhere in the pit, to which they responded, "All right; we will take the contract, and work it as long as we can make it pay." The plaintiffs were to put in skip roads for hoisting the ore, and were to put it in position for hoisting, and the defendant was to furnish the hoist- ing machinery and do the hoisting. Acting tinder this contract, the plaintiffs went to work in the pit. They leveled off a place, and put down some plank platform to pile ore upon, and sorted out some ore from the loose rock, and took some ore also out of a seam in the foot wall of the pit, and placed it on these platforms. On the morning of the third day after they began to work, the captain of the defendant company went down, and found the plaintiffs digging into the foot wall of the pit, upon which he or- dered them to quit mining at that point. A controversy then arose between him and the plaintiffs in reference to where they had a right to dig, and as to the extent of their right, which ended by the plaintiffs quitting the work. The plaintiffs contend that they had a right to mine at any point they chose, and that they had a right to dig into and through the foot wall, and that they had a right, under their contract, to mine all ore w^hich might be newly discovered by them after digging through the walls of the pit, and that they were not confined to such ore as they might find within the pit, as it had already been opened and worked. The de- fendant contends that, even if the contract is a valid one, it merely had reference to such ore as might be found within the pit as it had been opened and worked, and that it gave them no right to dig or break through the walls of the pit, and mine ore found outside of the walls; that it was essentially what is known among miners as a "scram- ming contract," which is one that confers: the right to mine and gather such ore as may be left within the limits of a mine or pit as it has been opened and mined before; that nothing beyond that was ever thought of, and that the act of the plaintiffs in breaking through the walls of the pit, and mining in a newly-discovered vein of ore, was never contemplated by the parties; and that it wotild greatly endanger the property of the defendant, as well as the lives of the miners, by rendering it likely to cave, as had hap- pened before, and for which reason it is al- leged this pit was named "Cave Pit;" and the defendant insists that the plaintiffs were stopped from digging in the foot walls for the reasons stated, while the plaintiffs con- tend that the real reason was that the de- fendant thought they would make too much money if allowed to mine in the rich vein of newly-discovered ore beyond the foot wall. The plaintiffs also contend that the term employed in the contract, "as long as we can make it pay," has a special signifi- cation among miners, and means as long as they cotild make "company account" wages, being such wages as the company was then paying by the day for such work; and they introduced some testimony, against the de- fendant's objection, tending to prove this to be so, while the defendant denies that this is so, and contends that the term has no spe- cial signification. The plaintiffs also contend that they had discovered a body of ore which amounted to at least 17,000 tons, and that, if they had been allowed to mine it,— as tney claim they had a right to do under the con- tract referred to,— they would have realized a profit of $22,000; while the defendant con- tends that this is not true, and that the dangers and contingencies were so great that no estimate of profits could be made which would be at all reliable, or upon which the jury could mtelligently act in attempting to decide upon what the damages should be. The questions of fact were all fairly submit- ted to the jury, who found a verdict of $1,000 for the plaintiffs, and a judgment for that amount was thereupon rendered in their fa- vor. The defendant claims error. The questions we are called upon to consid- er all relate to and depend upon the two main propositions in the case, which are whether or not the contract is of such a char- acter as to entitle the plaintiffs to damages for its breach, and, if it is, then whether or not the profits which the plaintiffs claim they would have made if they had been allowed to proceed to mine the ore, as long as they could make it pay, are not so speculative, uncertain, and contingent as to make it improper to per- mit the jury to pass upon them in deciding upon the damages to which the plaintiffs are entitled. We have sought in vain for a valic reason to sustain the plaintiffs in their conten- tion in this case, but we cannot do so. Wc do not think the contract is of such a char- acter as to be enforceable as an executory MUTUAL PROMISES. J41 contract. The aprreement was simply tbat the plaintiffs would work at miniuj,' the ore in "Cave Pit" for $1.50 per ton as long as they could make it pay. No limitations were put upon their methods, or how or in what manner they should conduct the work in order to make It pay, nor does it give the defendant any voice in deciding upon whether or not the plaintifis could make it pay, nor does it place the subject of the contract upon any certain basis upon which a jui-y can law- fully and justly arrive at a fair rule of dam- ages in ease of its violation. Under this con- tract, the plaintiffs must be presumed to be the sole judges of whether or not it would pay them to do the work, and of how long they should continue it. Neither do we think that the clause, "as long as they could make it pay," has any special signification in this case. It Is not in any sense ambiguous, and can have no different meaning when applied to mining than it has in any mechanical or agricultural employment. It is a term used daily In all the different entei^p rises and occu- pations In which men are engaged, and its scope is so weU understood that no evidence Is necessary to show what it is, or that it means anything different in one case than in another. "When a party agrees to sell arti- cles of merchandise, or deliver the produc- tions of his labor to another at a certain price as long as he can make it pay, every one must clearly understand that the term is dependent on conditions over which the promisee has no control, and, in so far as any one has tlie power to make the term effective, it is lodged solely In the promisor, who by judicious pur- chases or skillful manipulations of labor may be able to make a transaction pay when a more careless, negligent, or improvident per- son would be unable to do so. This serious element of uncertainty destroys all mutuality in the contract, and gives tlie promisor full power to say when a further execution of the contract will not be advantageous, be- cause he cannot make it pay. Contracts can- not arise where there is no mutuality, nor can they arise from the action of one party alone HOPK.SEL.CAS.CONT. — 16 where the other has no power to prevent his action. The uncertainty of the term, "as long as we can make it pay," employed iu this contract, is illustrated iu the case of Cummer V. Butts, 40 Mich. 3122. In that case the con- tract stipuhited that on CO days' notice it might be canceled by either party for "good cause." One of the parties terminated the contract, whereupon the other party, who in- sisted that no "good cause" for his dismiss- al existed, brought suit to recover for the pro (its he would have made If the arrange- ment had not been interrupted. Mr. Justice Graves, in an opinion concurred in by the entire court, says: "The difficulty is inher- ent. It exists in tlie terms adopted by the parties. The requirement of 'good cause,' as something on which the right to revoke by one or the other should depend, is, as here In- troduced, too vague to be fairly intelligible. The phrase in such connection, as to parties and subject-matter, has no such distinct sense as to furnish a common and intelligible cri- terion for the parties, or any determinate sense whatever. It is lmi)ossfble to say that the wills of the parties concurred, and that each meant exactly what the other did, or even to say what either meant. The case is one where the parties have failed to express themselves in terms capable of being reduced to lawful certainty by judicial effort." The same general iTile is laid down in cases cited in Am. & Eng. Enc. Daw, 844, 845. and notes; Blanchard v. Railroad Co., 31 Mich. 43; Cas- well V. Gibbs, 33 Mich. 331; Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139. Un- der this view of the law, we must hold that the plaintiffs cannot recover under this con- tract for any prospective profits which they might have made if they had been allowed to complete it, and the jury should have been so instructed. As this disposes of the case in favor of the defendant, it is unnecessary to discuss the question of dajnages, or any other question raised by the record. It follows that the judgment must be reversed, with wists of this court, and a new trial granted. The oth- er justices concurred. 242 CONSIDERATION. k>' ? COOK et al. v. WRIGHT. A/ ^ (1 Best & S. 559.) ^^1 Court of Queen's Bench, July 9, 1861. Declaration by plaintiffs, as payees, against the defendant, as maker of two promissory notes, dated the 7th February, 1856. The first coimt was upon a note for £10 10s., pay- able twelve months after date; the second was upon a note for £11, payable twenty-four months after date. There was also a count upon an account stated. Claim, £50. First plea to the whole declaration: That after the passing and coming into operation of the 'Whitechapel improvement act, 1853, and after the passing and coming into opera- tion of the Metropolis local management act, 1855, the defendant made the several prom- issory notes in the said first and second counts mentioned at the request of the plain- tiffs, and that, at the time of making the said promissory notes, the plaintiffs asserted and represented to the defendant, and the defendant believed such assertion and rep- resentation to be true, that there was then due and owing, and payable from him, the defendant, as the owner of certain lands and buildings in certain streets called "FiBch Street," '"John Street" and "Dawson's Place," situate within the parish of St. Mary, White- chapel, to the trustees of the parish of St. Mary, Whitechapel, under the provisions of the Whitechapel improvement act, 1853, di- vers large sums of money in respect of paving the streets fronting, adjoining and abutting on such lands and buildings. And the de- fendant says that, at the time of making the said promissory notes no sum of money what- soever was due or owing or payable from the defendant as such owner to the said trustees, nor was the defendant such owner as afore- said, and that there never was any consider- ation or value for the defendant making the said promissory notes in the first and sec- ond counts mentioned, or either of them, or for his paying the same, or any part there- of; and the plaintiffs never were, nor was any person, ever a holder of the said notes, or either of them, for value or consideration; and that the account stated, in the declara- tion mentioned, was stated of and concerning the matters and things in this plea mentioned, and was not stated of or concerning any other matter or thing whatsoever. Second plea, to the first and second counts: That the defendant was induced to make, and did make, the promissory notes in those counts mentioned, and each of them, by the fraud, covin, and misrepresentation of the plaintiffs and others in collusion with them. On the trial, before Wightman, J., at the sittings in London, during Easter term, 1800, it appeared that the plaintiffs were four of the commissioners or trustees acting under and incorporated by section 27 of the White- chapel improvement act, 1853 (16 & 17 Vict. c. cxli.); and the action was brought to re- cover the amount of the two notes mentioned in the declaration. The evidence as to w'uit took place at the time of the giving of the notes was as follows: Mitchell, the clerk to the trustees, said that, certain parts of the district not being in repair in 1854, notices to do repairs were sent or left addressed to the owners; and in October, 18.55, he wrote a letter to the defendant demanding £70 for • expenses incurred by the trustees in doing paving works in front of houses, of which the defendant was the owner or occupier, situate in and abutting on public highways within the district of the Whitechapel improvement • act The defendant complained that the works done by the trustees had seriously in- jured the property, and that the tenants were dissatisfied, and requested him to get an abatement made. He informed the defend- ant that the trustees assented, and the bal- ance to be paid by the defendant was agreed to at £30. The defendant then requested time, and time was given, upon condition that he paid interest; and three promissory notes were given by the defendant, the first of which was paid by him under protest. The defendant was called, and stated that Mrs. Bennett was owner of the three houses in question, and that he was tenant of one of them at a rack rent under her, and collected the rents of the others for her; that he paid the paving rate of the house which he occu- pied, and the paving rates of the other houses he paid for Mrs. Bennett and in her name; that, upon receiving the notice of October, 1855, he went before the board of trustees and told them that he was not th*? owner of the property, and shewed them Mrs. Bennett's receipts for the rent. They replied that, as he paid the rates, they considered he was the owner within the meaning of the Whitechapel improvement act, 1853, and, if he did not give notes, they would sei"ve him as they had serv- ed Goble, which was by levying an execution on him; that there was another case in which the question of the liability of the inhabitant^ was to be tried, and, if decided against the trustees, he should not be called on to pay. When the first note became due he complain- ed to Mitchell that the trustees had not car- ried out their promise to try one of the cases. Mitchell said that, as the defendant had sign- ed the notes, he must pay them, and that the promised trial should take place. Thereupon the defendant paid the first note. The ^e- fen dant was afterwards ^ told by Mrs. B ennett " thilt tie wiis-oo t the owner within'''lhe migJi- Tng of tl ^p n/>t,~"nnfi liP thprpnpnn wpnt tO a board meeting of the trustees and told them that he would not pay the other notes. It was contended for the defendant that the notes were given without consideration, the defendant not being an "owner" within sec- tion 7 of the Whitechapel improvement act. The jury, in answer to the qiiestions put to them by the learned judge, found that the defendant told Mitclifll or the board, before he gave the notes, tliat he was not the own- er; that the defendant mentioned, before he FORBEAUANCE. 243 gave the notes, that Mrs. Bennett was the owner; and that Mitchell, or some member of the board, told the defendant, in the board- room, that, unless he gave the notes, he would be served as Goble had been. The verdict was thereupon entered for the defendant, leave being reserved to move to enter a ver- dict for the plaintiffs. In the same term (May 4). Montagu Chambers obtained a rule to shew cause accordingly, on the ground that tlie evi- dence did not prove want of consideration for giving the notes, and that, upon the evidence, the plaintiffs were entitled to a verdict. This rule wtis argued in this term, May 23d, before COCKBURN, C. J., and WIGIITMAN, CROMPTON, and BLACKBURN, JJ. Mr. Shoe, Serjt., and Mr. Barnard, shewed cause. There was no consideration for the notes. The defendant signed them upon the representation by the trustees that they con- sidered him the owner of the houses because he collected the rents, and was liable to pay the rates. But the defendant was not the own- er withm section 7 of St. 16 & 17 Vict c cxli., by which "the word 'owner,' used with reference to any lands or buikhngs in respect of which any work is required to be done, or any rate to be paid under this act, shall mean the person for the time bemg entitled to re- ceive, or who, if such lands or buildings were let to a tenant at rack rent, would be entitled to receive, the rack rent from the occupier thereof." The existence of disputes and controversies between a plaintiff and defendant, as to wheth- er the defendant is indebted to the plaintiff, is not a sufficient consideration for a promise; there must be a debt in existence. Edwards V. Baugh, 11 Mees. & W. U41. These notes were not given for the debt of another pai'ty: the trustees did not profess to take them in payment of the rates due from Mrs. Bennett [CROMPTON, J. Suppose money had been paid by the defendant could he have recover- ed it back? The maxim "Quod lieri non debet factum valet" seems to apply. WIG HTM AN, J., referred to Southall v. Rigg and Formau v. Wright, 11 C. B. 481.] In Addison on Con- tracts, p. 15 (4th Ed.), It is said: "So if the consideration prove to be a nullity, the prom- ise founded upon it is void, as if the con- sideration be the forbearance of a suit when there is no cause of action * • * or a prom- ise to pay a debt which never had an existence In point of law." Mr. Hanuen, in support of the rule. 1. The plea was not proved. The defendant did not believe the representation of the trustees that he was hable as owner of the houses under the provisions of the Whitochapel improve- ment act, lSo3. 2. The plea is not good. In Edwards v. Baugh, 11 Mees. & W. 041, the defendant might have been imposed upon as to their be- ing a debt due from him to the plaintiff, but in this case there is no statement tliat the de- fendant yielded to the assertion that he was owner of the houses; it amounts to no more than that he thought it doubtful whether he was liable. [CROMPTON, J. Did the trus- tees put themselves in a worse position by tak- ing the notes? Might they not the next day have said, "We have mistaken our position," and have returned the notes?] No. In Baker V. Walker,n4 Mees. & W. 4aj, Parke. B., said (page 4G7), "If I give a promissory note for the debt of a third person, I am bound to pay it when due." [CROMPTON, J. The defendant gave the note in discliargo of his own liabihty. He took the debt upon himself, whosesoever it was, if the trustees would give him time.] The defendant signed the notes because the trustees threatened to sue him, not because he believed himself to be liable; and he obtained time for payment of the d(;bt of a third person, which is a sufhciont consideration for giving the notes. Sowerby v. Butcher, 2 Cromp. & M. 308. Suppose the trustees had sued .Mrs. Bennett for the rates, she might have pleaded that the trustees had taken notes for the amount from her agent. The notes were giv- en for the debt claimed to be due in respect of a particular property. [COCKBURN, C. J. The difficulty which I feel is that I do not see in what character the defendant acted when he gave the notes. WIGHTMAN, J. By section 11 of St 16 & 17 Vict c. cxli., the pro- visions of the "Towns Improvement Clauses Act 1S47" (10 & 11 Vict c 34.) are incor- porated with the first mentioned act, "with re- spect to the paving and maintaining the streets, except sections 54 and 55; and provid- ed that section 53 shall extend to such streets only as shall be public highways at the time of the passing of this act, and that the ex- penses incurred under the last mentioned sec- tion shall be repaid by the owners of the lands therein mentioned, and shall be recov- erable from the owners or occupiers in the same manner as is provided with respect to the recovery of expenses imder the provisions for insuring the execution of works required to be done by the owners and occupiers of lands."] Cur. adv. vult BLACKBURN, J. (.Tuly 9th) delivered the judgment of COCKBURN. C. J., WIGHT- MAN, J., and himself; CROMPTON, J., hav- ing left the court before the argument was concluded. In this case it appeared on the trial that the defendant was agent for a Mrs. Bennett, who was nonresident owner of houses in a district subject to a local act. Works had been done in the adjoining street by the commissioners for executing the act, the ex- penses of which, under the provisions of their act they charged on the owners of the adjoining houses. Notice had boon given to the defendant, as if he had himself been owner of tlie houses, calling on him to pay the proportion chargeable in respect of them. He attended at a board meeting of the com- missioners, and objected both to the amount 241 CONSIDERATION. and nature of the charge, and also stated that he was not the owner of the houses, and that Mrs. Bennett was. He was told that, if he did not pay, he would be treated as one Goble had been. It appeared that Goble had refused to pay a sum charged against him as owner of some houses, and the commissioners had taken legal proceed- ings against him, and he had then submitted and paid, with costs. In the result it was agreed between the commissioners and the defendant that the amount charged upon liim should be reduced, and that time should be given to pay it in three instalments. He gave three promissory notes for the three instalments. The first was duly honoured; the others were not, and were the subject of the present action. At the trial it ap- peared that the defendant was not in fact owner of the houses. As agent for the own- er he was not personally liable under the act. In point of law, therefore, the commission- ers were not entitled to claim the money fiom him; but no case of deceit was alleged against them. It must be taken that the commissioners ho n estly b elieved that the de fendant was per5onalLy~lia bl£;>_aad _really intended to take legal proceedings agains t hi m, as they hacTcTone ag ainst GobTe^ The defendant, accoramg to" his own evidence, never believed that he was liable in law, but signed the notes in order to avoid being sued as Goble was. Under these circiunstances the substantial question reserved (irrespective of the form of the plea) was whether there was any consideration for the notes. We are of opinion that there was. There is no doubt that a bill or note given in consideration of what is supposed to be a debt is without consideration if it appears that there was a mistake in fact as to the existence of the debt (Bell v. Gardiner, 4 Man. & G. 11), and, according to the cases of Southall V. Rigg and Forman v. .Wright, 11 C. B. 481, the law is the same if the bill or note is given in consequence of a mistake of law as to the existence of the debt. But here there was no mistake on the part of the defendant, either of law or fact. What he did was not merely the making an erroneous account stated, or promising to pay a debt for which he mistakingly believed himself liable. It appeared on the evidence that he believed himself not to be liable; but he knew that the plaintiffs thought him liable, and would sue him if he did not pay, and in order to avoid the expense and trouble of le- gal proceedings against himself he agreed to a compromise; and the question is wheth- er a person who has given a note as a com- promise of a claim honestly made on him, and which but for that compromise would have been at once brought to a legal deci- sion, can resist the payment of the note on the ground that the original claim thus com- promised might have been successfully re- sisted. If the suit had been actually commenced, the point would have been concluded by au- thority. In Longridge v. Darville, 5 Bam. & Aid. 117, it was held that the compromise of a suit instituted to try a doubtful question of law was a sufficient consideration for a promise. In Atlee v. Backhouse, 3 Mees. & W. 633, where the plaintiff's goods had been seized by the excise, and he had afterwards entered into an agreement with the commis- sioners of excise that all proceedings should be terminated, the goods delivered up to the plaintiff, and a sum of money paid by him to the commissioners, Parke, B., rests his judgment (page G50) on the ground that this agreement of compromise honestly made was for consideration, and binding. In Cooper v. Parker, 15 0. B. 822, the court of exchequer chamber held that the withdraw- al of an untrue defence of infancy Ln a suit, with payment of costs, was a sufficient con- sideration for a promise to accept a smaller sum in satisfaction of a larger. In these cases, however, litigation had been actually commenced; and it was argued be- fore us that this made a difference in point of law, and that though, where a plaintiff has actually issued a writ against a defend- ant, a compromise honestly made is binding, yet the same compromise, if made before the writ actually issues, though the litigation is impending, is void. Edwards v. Baugh, 11 Mees. & W. 641, was relied upon as an au- thority for this proposition. But in that case Lord Abinger expressly bases his judg- ment (pages 645, 646) on the assumption that the declaration did not, either expressly or impliedly, shew that a reasonable doubt ex- isted between the paities. It may be doubt- ful whether the declaration in that case ought not to have been construed as dis- closing a compromise of a real bona fide claim, but it does not appear to have been so consti-ued by the court. We agree that, unless there was a reasonable claim on the one side, which it was bona fide intended to pursue, there would be no gi-ound for a com- promise; but we cannot agree that (except as a test of the reality of the claim in fact) the issuing of a writ is essential to the valid- ity of the compromise. The position of the parties must necessarily be altered in everj- case of compromise, so that, if the question is afterwards opened up, they cannot be replaced as they were before the compro- mise. The plaintiff may be in a less favour- able position for renewing his litigation; he must be at an additional trouble and expense in again getting up his case, and he may no longer be able to produce the evidence which would have proved it originally. Be- sides, though he may not in point of law be bound to refrain from enforcing his rights against third persons during the continu- ance of the compromise, to which they are not parties, yet practically the effect of the compromise must be to prevent his doing so. For instance, in the present case, there can. be no doubt that the practical effect of the FORBEARANCE. 245 ■compromise must have been to induce the commissioners to refrain from taliing pro- ceedings against Mrs. Bennett, the real own- er of the houses, while the notes given by the defendant, her agent, were running; though the compromise might have afforded no ground of defence had such proceedings been resorted to. It Is this detriment to the party consenting to a compiomise arising from the necessary alteration in his posi- tion which, ill my opinion, forms the reai consideration for the promise, and not the technical and almost illusory consideration arising from the extra costs of litigation. The real consideration therefore depends, not on the actual commencement of a suit, but on the reality of the claim made and the bona fides of the compromise. In the present case we think that there was sudicient consideration for the notes Id the compromise made as it was. The rule to enter a verdict for the plaintiff must bC' made absolute. Rule absolute. CONSIDERATION. RECTOR, ETC., OF ST. MARK'S CHURCH V. TEED. (24 N. E. 1014, 120 N. Y. 583.) Court of Appeals of New York, Second Divi- sion. June 24, 1890. Appeal from an order of the seneral term of the supreme court, in the second judicial department, reversing a judgment entered upon the decision of the court at special term. Action on a written instrument where- by the defendant promised to pay to the plaintiff, a religious corporation, the sum of $500. The answer alleged tliat said promise to pay was made without any consideration, — good, valuable, or other- wise, — and that it is of no force or effect. Upon the trial it appeared that on Febru- ary 1, 1S7.5, one Lewis T. Wright died, leaving a last will and testament, which in due time was presented for probate to the surrogate of the proper county by the defendant, who was the executor na»ned therein. Objections to the probate of the will were filed by Thomas Wright, the only brother, heir at law, and next of kin of the decedent. On the 14th of April, 1875, while the issue was on trial, the defendant, desiring that the contest should be with- drawn, made an arrangement with Thom- as Wright, whereby the latter agreed to withdraw his opposition to the probate of the will, provided the former would pay the plaintiff the sum of f 500 "in the man- ner, at the time, on the conditions, and for the purpose expressed in the undertak- ing or obligation hereinafter set forth." The defendant agreed to and accepted said terms of compromise, and thereupon, executed and delivered the following in- strument, viz.: "For value received, I hereby promise to pay to Saint Mark's Church, New Castle, Westchester county, the sum of five hundred dollars. It is un- derstood that said church will appropri- ate the interest of said, money to the im- provi-mcnt, adf)rnment, and care-taking of the church-yard of said church; but the payment thereof shall not be exacted till the decease of Thomas Wi*ight. It is fur- ther understood that, upon the execution and delivery, by the residuary legatees named in the will of Lewis Wright, of a written agreement or a sufficient promise to bind them, instead of the undersigned, to the above, then this writing shall be destroyed, or delivered to the undersigned. CriAS. G. Teed. In presence of Lewis C. Pratt. Dated April 14th, 1875. " In con- sideration of the execution and delivery ol this agreement by the defendant, said Thomas Wright withdrew his objections to the probate of the will, which was im- mediately admitted to probate; and let- ters testamentary were issued to the de- fendant thereon. Neither the plaintiff nor the defendant had any interest in the es- tate of said decedent, either through the will or otherwise, but one ground of ob- jection to the probate was that the tes- tator had agreed to leave .fSOO to the plaintiff. The legatees were relatives ol the defendant, and on their account he de- sired that the contest should be aban- doned. Said instrument was duly deliv- ered to the plaintiff, and it has ever since been the lawful ow^ner and holder thereof. Thomas Wright died September 20, 1882; and said agreement has never been com- plied with by the residuary legatees, nor performed by the defendant. The trial judge, after finding the foregoing facts, in substance, found as a conclusion of law that the complaint should be dismissed with costs. William H. Robertson, for appellant. Walter Edwards, for respondent. VANN, J. The question presented for de- cision by this appeal is whether the instru- ment upon which the action was brought is supported by a consideration that the law recognizes as sufficient. "A valuable consideration, in the sense' of the law, may consist either in some right, interest, profit, or benefit accruing to one part^', or some forbearance, detriment, loss, or re- sponsibility given, suffered, or undertaken bv the other." 3 Amer. & Eug. Enc. Law, 831; Currie V. Misa, L. R. 10 Exch. 162; Chit. Cont. (9th Amer. Ed.) 29; 2 Kent, Comm. 405. It is not essential that the person to whom the consideration moves should be benefited, provided the person from whom it moves is, in a legal sense, injured. The injury may consist of a com- promise of a disputed claim, or forbearance to exercise a legal right; the alteration in position being regarded as a detriment that forms a consideration, independent of the actual value of the right forborne. Thomas Wright, as the sole heir at law and next of kin of the decedent, would have inherited the entire estate if he had succeeded in his effort to defeat the pro- bate of the will. He was, therefore, "par- ticularly interested in setting aside the will," within the meaning of that phrase as used in the case of Seaman v. Seaman, 12 Wend. 3Sl, which we regard as analo- gous to this, and which has been repeatedly followed. Palmer v. North, 35 Barb. 293; Bedell v. Bedell, 3 Hun, 583; Hall v. Rich- ardson, 22 Hun, 447. It will be presumed that the testator left assets of some value, as the evidence tended to show that there was property, although not enough to pay the legacies, and the trial court mentioned "the prop- erty" and "the estate" of Lewis T. Wright in the findings. Moreover, as the agree- ment recites a consideration, the burden of proof was on the defendant to show that there was none; and, if that depended up- on the allegation that the testator left no property, the burden extended to proof of that proposition also. The withdrawal of the objections to tlie probateof tlievvill, therefore, at the special request of the de- fendant, was the forbearance of a legal right, and constituted a consideration sufficient to support a promise b^' him, even if he was to receive no benefit what- ever. " Whether he would have succeeded in the litigation," as was said in the Sea- man Case, "is not the test. * * * It is enough that he yielded to his adversaries the right he possessed to contest the will. That he has done, and the compromise it- self proves prima facie an acknowledg- ment by the defendants that there was color for his objections." Page 381. The FORBEARANCE. 247 / court will not ask "wliich party would have succeeded;" for that would involve the trial of the issue that was conipro- niisod, and the object of the law in en- couragin{;:.coniproniis('H would thus be de- feated. The couKideration did not rest up(jn any advaiit;ij;e to the defendant, but upon the abandonnientby Thomas \\rij::ht of his position as a contestant. By dis- continuing his effort to overthrow the will, he relinquished a right secured to him by law, and lost his chance of inherit- ing the estate. He did this at the request of the defendant, who promised to pay for it. If the form of the pronuse had been to pay directly to Thomas Wright, no reasou is perceived why it could not have been en- forced. As the arrangement was made with him, and the consideration was fur- nished by him, the fact that the money was made payable bj' his direction to the plaintiff does not render the promise void. The plaintiff became his appointee, and upon receiving from him the written agree- ment, or evidence of the promise, it became his donee; and thus privity was estab- lished between the parties to the action. This is not the case of amerestranger who attempts to intervene, and claim the ben- efit of a contract to which he is not a par- ty, as in many of the authorities relied on by the appellant, because the promise was made directly to the plaintiff, and there was a dear intention on the part of the person furnishing the consideration to se- cure a benefit to the plaintiff. If the sum in question had been made payable to Thomas Wright, he could have given the claim to the plaintiff, whose title would thus have been jjerfect; and why could he not make the gift by causing tiie iironiise to be made directly to the plaintiff? The intention (jf the parties should not be de- feated l)y releasing the defendant from his promise, after he had received the consid- eration therefor, simjily on account of the form of the transaction, which violates no statute, nor any rule of jtublic policy. If A. sells a horse to II. for .$100, and B. gives in payment therefor a note for that amount drawn payable to C. at A.'s re- quest, and A. delivers the note to C, the latter can enforce it against the maker. The case supposed differs in no essential particular from that under consideration. As recently held by this court, after a care- ful review of the authorities, a part3' for whose benefit a promise is made may sue in assumpsit thereon even if the considera- tion therefor arose between the promisor and a third person. Todd v. Weber, 95 N. Y. 181, 194. Without elaborating our rea- sons, we think that the order appealed from should be aflirmed, and that judg- ment absolute should be rendered against the defendant, with costs. .Ml comur, ex- cept PoTTKR, J., dissenting, and ILaigut, J., absent. 24i COiJSIDEllATION. W 7 y llV;^ Vi McKINLBY V. WATKINS^ (13 111. 140.) Supreme Court of Illinois. Dec, 1851. This action was commenced by Watkius against McKinley before a justice of the peace. Watkins failed to recover on the trial before the justice, and took an appeal to the circuit court At the April term, ISol, of the Logan circuit court, the cause was tried be- fore Davis, J., and a jury, and resulted in a verdict and judgment for Watkins, and Mc- Kinley brought the cause to this court by writ of error. Watkins and McKinley had traded horses in lSi5. Afterwards they had some dispute about the trade, and Watkins threatened to sue imless McKinley would give him a horse, or the worth of the horse which McKinley had got from Watkins, the horse which Wat- kins had received in exchange having died. McKinley promised that, if Watkins would not sue, he would give him fifty dollars, or a horse worth that sum. Upon this promise Watkins brought ■ his ^action against McKin- ley. W. H. Hemdon, for plaintiff in eiror. T. L. Harris, for defendant in error. TRUMBULL, J. This was an action orig- inally commenced before a justice of the peace, and taken by appeal to the circuit court, where the plaintiff had judgment for fifty dollars and costs. The evidence showed that the parties had traded horses; that, a month or two after the trade, the horse which plaintiff got, died, and that he was unsound when the trade took place. There was no evidence of any false representations, or warranty on the part of the defendant in making the trade. After the death of the horse the plaintiff informed the defendant of the fact, and alleged that he was diseased at the time of the trade, whereupon the defendant promised to pay the plaintiff fifty dollars, or let him have a fifty-dollar horse, if he would not sue. This action was brought to recover the fifty dollars. On the trial the circuit court in- structed the jury as follows: "If the jm-y believe from the evidence that there was a horse trade between Watkins and McKinley, out of which a difficulty had grown, and that Watkins was threatening to sue McKinley, and not deceiving him by any misrepresentations, and that McKinley, rath- er than be sued, promised Watkins that he would pay him fifty dollars, then said prom- ise is binding; and this regardless of the question as to whether McKinley would or would not have been liable in the suit which Watkins was threatening to bring against the propriety of this instruction, and in one point of view it is cleai-ly erroneous. It as- sumes that the defendant would be bound by his promise, whether assented to by the plaintiff or not. Unless the plaintiff were bound on his part not to do the act which formed the consideration of the promise of the defendant, the agreement was void for want of mutuality. The promise of defend- ant to pay fifty dollars if plaintiff would not sue him was incomplete tiU accepted by the plaintiff. Chit. Cont. 13. / A mere offer not assented to constitutes no\ contract, for there must be not only a pro- \ [posal, but an acceptance thereof. Story, J \Cont. §§ 377, 378. ^ The instruction in other respects is very nearly, if not quite, correct. It assumes that, in order to support the promise, there must have been a horse trade between the parties, out of which a difficulty had arisen, and that the plaintiff was threatening to sue the de- fendant, and not deceiving him by any mis- representations. If by this is to be under- stood that the plaintiff must in good faith have supposed t hat he had a j good ca use of action against the_f^pff^nnn nt^ ja wing out of TE5 huistj- L fade, the ir|?}tmct^on is stricOy prgper. it~ is immaterial whether the plam- tiff could have recovered in such action or not If he honestly supposed that he had a good cause of action, the compromise of such right was a sufficient consideration to uphold a contract fairly entered into between the parties, irrespective of the question as to who was in the right It has often been decided that the compromise of a doubtful right is a sufficient consideration for a promise; and it is immaterial on whose side the right ulti- mately turns out to be, as it must always be on one side or the other, because there can be but one good right to the same thing. Tay- lor V. Patrick, 1 Bibb, 168; Russell v. Cook, 3 Hill, 504; Moore v. Fitzwater, 2 Rand. 442; O'Keson v. Barclay, 2 Penn. R. 531. If the plaintiff' was threatening to sue on a claim which he knew was wholly unfound- ed, and which he was setting l ^j as a mere pretense to extort money from the defendant, a contract foimded on a promise not to sue in such a case would be utterly void. In or- der to support the promise there must be such a claim as to lay a reasonable ground for the defendant's making the promise, and then it is immaterial on which side the right may ultimately prove to be. Edwards v. Baugh, 11 Mees. & W. 641; Perkins v. Gay, 3 Serg. & R. 331. The judgment of the circuit court is re- versed, and the cause remanded. Judgment reversed. him." The only question in the case is as to TREAT, a J., dissented. FORBEARANCE. 249 RUE V. MEIRS et al. aa Atl. 369, 43 N. J. Eq. 377.) Court of Chancery of New Jersey. Feb. 7, 18S8. Bill to enforce performance of contract On hearing on demurrer. William H. Vredenburgh, for demurrant, Frank P. McDermott, for complainant. VAN FLEET, V. C. The complainant sues In a dual capacity— in her own right, as well as in that which she holds as the administra- trix of her deceased brother, Natlianiel S. Rue, Jr. The foundation of her action is a contract made by her fathei", Robert C. Rue. with the defendants, .John G. Meirs and Sa- rah E. Davis, and which was reduced to writing and signed by her father and the de- fendants, and which reads as follows: "This agreement, made the twenty-seventh of Sep- tember, 1S75, by and between Sarah E. Da- vis and John G. Meirs, of Cream Ridge, coun- ty of Monmouth, state of New Jersey, of the first part, and Robert C. Rue, of the same place, as the representative of his children, L. M. Rue and N. S. Rue, Junior, of the sec- ond part; witnesseth, in consideration of the covenants on the part of the, party of the first part hereinafter contained, doth cove- nant and agree with the party of the second part, Robert C. Rue, that we, Sarah E. Da- vis and John G. Meirs, of the first part, do agree to pay the sum of $4,0r>C co li. C. Rue, ns the representative of his children, L. M. Rue and N. S. Rue, Junior, provided R. C. Rue makes no objection to the proof of the will and the settlement of the estate of Lu- cretia S. Meirs, deceased, so far as said will has reference to said children." The com- plainant's bill alleges that this contract grew out of a threatened contest over a paper pur- porting to be the will of Lucretia S. Meirs, deceased. Mrs. Meirs was the motlier of the defendants, and the grandmother of the com- plainant and her brother, being the children of a deceau^ju daughter of Mrs. Meirs. Mrs. Meirs died on the ninth of September, 1875. By her will she made an unequal distribution of her property, giving the defendants much more than two-thirds. The complainant and her brother wore both infants at the time of their grandmother's death. Their father was present at the reading of her will, and imme- diately after he knew its contents expressed his dissatisfaction with its provisions, and protested against its admission to probate. The bill says that the defendants, recognizing the unequal distribution which the testatrix liad made of her property, and the grounds which existed for contesting her will, they, to induce Robert C. Rue to forbear from con- testing the will on behalf of his children, made the promise contained in the contract. The bill further says that the will of Mrs. Meirs was, three days after the contract was signed, admitted to probate, without contest. and that since then her estate has been set- tled, and her property distributed, in accord- ance with the terms of her will, witliout ob- jection on the part of Robert C. Rue or his children, but with their acquiescence. But the $4,000 have not been paid, and this ac- tion is brought to compel payment. The defendant Meirs demurs. He disputes the validity of the contract. He says that he and his sister got nothing for their promise to pay the $4,000. This contention attempts, as it seems to me, to deny what is manifestly undeniable. The right of Robert C. Rue to file a caveat, as the next friend of his chil- dren, against the probate of Mrs. Meirs' will, stands, I think, free from the least doubt. While an infant is incapable of maintaining a suit or other legal proceeding in his own name, for the protection of his rights, there can be no doubt that he is entitled to the benefit of every remedy recognized by our system of jurisprudence, and to which an adult of full capacity may resort, the only difference being that an infant must proceed in the name of an adult, as his next friend, while an adult may proceed in his own name. And this is so because an infant, by reason of the immaturity of his mind, is incapable of judging when and under what circumstancvs he should seek judicial protection or re- dress, and the courts have therefore adopt- ed, as a rule of practice for the protection of infants as well as themselves, that no suit or proceeding in behalf of an infant shall be entertained, unless instituted by a person competent to judge whether such step is nf c- essary or proper for the due protection of the infant's rights. While any person of full age and sound mind is competent to become the next friend of an infant, his nearest rela- tive is usually preferred. A father, being the natural guardian of his infant child, has a vested right, as it has been called, to act as the next friend of his child in a litigation involving the child's rights, if the father's in- terests are not hostile to those of his child, and he has been guilty of no default or neg- lect. This right is regarded as so superior by the English courts that it has been de- clared that the father has a right, even where another person has instituted a suit in behalf of his infant child, and prosecuted it to decree, to have such other person dis- placed, after decree pronounced, and himself substituted as next friend. Woolf v. Pem- berton, G Ch. Div. 19. It would seem, then, to be entirely clear that the defendants, l\v removing the opposition which Robert C. Rue intended to make on behalf of his children to the probate of the will, and which he had an unquestionable riglit to make, reheved themselves, from the only substantial danger which existed, and that instead of its being true that they got nothing for tueir promise to pay $4,000. it is a fact standing free from all dispute that they have received every- thing which the contract stipulated that they should receive. The thing that the defend- 250 CONSIDERATION. ants were bargaining for was tbat the paper which their mother left as the testamentary disposition of her property should be proved as her will, without objection, and that their mother's property should be divided and dis- tributed as her will directed. The will was proved without objection, and the property has been divided and distributed as the will directed. The contract, therefore, so far as the defendants were entitled to a nything un- ^oj-JX hns been P -\]]Y pQj-frtrmi^ ''^— The question whether a promise to forbear suit to enforce a disputed claim or right, where the claim or right is honestly assert- ed, under a behef that it is substantial, al- though it is in fact wholly unfounded, is suf- ficient, as a consideration to support a prom- ise to pay money, has recently been put at rest in this state by a decision of the su- preme court. That court said in Grandin v. Grandin, 49 N. J. Law, 508, 9 Atl. 756: "The compromise of a disputed claim, made bona fide, is a good consideration for a. promise, whether the claim be in suit or litigation has not been actually commenced, even though it should ultimately appear that the claim was wholly unfounded,— the detriment to the par- ty consenting to a compromise, arising from the alteration in his position, forms the real consideration which gives validity to the promise. The only elements necessary to a valid agreement of compromise are the real- ity of. the claim made, and the bona fides of the compromise." And what I understand is meant by the phrase, "the reality of the claim made," is that the claimant shall assert his claim in good faith, believing that it is real, or, in the language of Lord Justice Cot- ton, in Miles v. Estate Co., 32 Ch. Div. 2G6: "A claim is honest if the claimant does not know that his claim is unsubstantial, or if he does not know the facts which show that his claim is a bad one." The court, in decid- ing Grandin ,v. Grandin, adopted the princi- ple estabhshed by the court of queen's bench in Cook V. Wright, 1 Best & S. 559. That case was heard by Cockburn, C. J., and Blackburn and Wightman, JJ. The material facts, as stated in the opinion of Mr. Justice Blackburn, were: "The defendant was agent for a Mrs. Bennett, who was a non-resident owner of houses in a district subject to a lo- cal act. Work had been done in the adjoin- ing street by the commissioners for executing the act, the expenses for which, under the provisions of the act, they charged on the owners of the adjoining houses. Notice had been given to the defendant, as if he had himself been the owner of the houses, calling on him to pay the proportion chargeable in respect to them. He attended at a board meeting of the commissioners, afid objected both to the amount and nature of the charge, and also stated that he was not the owner of the houses, and that Mrs. Bennett was. He was told that if he did not pay he would be treated as one Goble had been. It appeared that Goble had refused to pay a sum char- ged against him as the owner of some hous- es, and the commissioners had taken legal proceedings against him, and he had then submitted and paid with costs. In the re- sult it was agreed between the commissioners and the defendant that the amount charged upon him should be reduced, and that time should be given to pay it in three install- ments. The defendant gave three promissory notes for the three installments; the lirst was duly honored, the others were not, and were the subject of the present action. At the trial it appeared that the defendant was not the owner of the houses. As agent for the owner he was not personally liable under the act. In point of law, therefore, the com- missioners were not entitled to claim the money from him, but no case of deceit was alleged against them. It must be taken that the commissioners honestly believed that the defendant was personally liable, and really intended to take legal proceedings against him, as they had done against Goble. The defendant, according to his own evidence, never believed that he was liable in law, but signed the notes in order to avoid being sued as Goble was." The court decided that the notes sued on were supported by a good con- sideration, and this ruling was put distinct- ly on the ground that the defendant, by giv- ing the notes, had induced the plaintiffs to alter their position, by refraining from do- ing what they might have done if the notes had not been given. The court say: "There can be no doubt that the practical effect of the compromise must have been to induce the commissioners to refrain from taking pro- ceedings against Mrs. Bennett, the real own- er of the houses, while the notes given by the defendant, her agent, were running; though the compromise might have afforded no ground of defense had such proceedings been resorted to. It is this detriment to the party consenting to a compromise, arising from the necessary alteration in his posi- tion, which, in our opinion, forms the real consideration for the promise, and not the technical and almost illusory consideration arising from the extra costs of the litigation. The real consideration, therefore, depends, not on the actual commencement of a suit, but on the reality of the claim made, and the bona fides of the compromise." The same doctrine was subsequently de- clared in Callishcr v. Bischoffheim, L. R. 5 Q. B. 449. The court, speaking by Cockburn, C. J., there said: "The authorities clearly estab- lish that, if an agreement is made to compro- mise a disputed claim, forbearance to sue in respect of that claim is a good consideration; and whether proceedings to enforce the dis- puted claim have or have not been instituted makes no difference. * * * Every day a compromise is effected on the ground that the party making it has a chance of succeed- ing in it, (in enforcing his claim or right by suit;) and if he bona fide believes he has a I fair chance of success, he has reasonable- FOKBEARANCE. 251 ground for suing, and his forbearance to sue will constitute a good consideration. When such a person forbears to sue, he gives up what he believes to be a right of action, and the other party gets an advantage, and in- stead of being annoyed with an action, he escapes from the vexation incident to it." Applying these principles to the contract on trial, its validity, in point of consideration, is put beyond dispute. In cases of this class. If the contract has been fairly made, no inquiry will be made as to the adequacy of its con- sideration. CJrandin v. Grandin, supra. By the terms of this contract, it will be observed that the advantages were all with the defend- ants. They were not bound to pay until the other contracting party had performed his part of the contract, and they had received everything under the contract which they were entitled to receive. Stated in sub- stance, the contract is this: The defendants agreed to pay Robert C. Rue $4,000, for his children, provided he make no objix-tion, on behalf of his children, to the proof of Mrs. Meirs' will, and the division and distribution of her estate according to the terms of her will. The $4,000 are not payable until the will has been proved and fully executed,— un- til the opposing or hostile right, which the defendants feared, was actually extinguished. The defendants have now received everything which they were entitled to receive under the contract, and for which they agreed to pay the $4,000, and I think they are, therefore, bound in law and conscience to abide by their contract, and nay the $4,000. The defendant also raises a question of ju- risdiction. He denies the power of this court to give the complainant the relief she asks. This objection raises a question which, in view of the peculiar condition of facts which the case presents, seems to me to be one about which strong diversity of opinion may exist, and I must confess that the conclusion which I have reached concerning it is not one which I express without doubt. The draughts- man of the bill has attempted to lay a foun- dation for equity cognizance, by asking for a reformation of the contract. The contract, it will be observed, says that "in consideration of the covenants on the part of the party of the first part, hereinafter contained, doth cov- enant and agree with the party of the second part, Robert C. Rue. that we, Sarah E. Davis and .Tohn G. ^leirs. do agree to pay the sum of $4,000 to R. C. R.," etc. The words "par- t>' of the first part" are used where it is man- ifest the words "party of the second part" were intended to be used. And it is also obvious that the words "party of the first part" should have been inserted between the words "hereinafter contained" and the words "doth covenant," In order to make the con- tract express, in formal words, the meaning of the parties. But these mistakes are pal- pable, and do not create the slightest obscu- rity as to the meaning of the contract, nor prevent it from being so constnied as to give full effect to the real intention of the parties. It is a rule of construction, of universal ap- plication, that a contract, notwithstanding mistakes, shall, if the meaning of the parties can be clearly discerned, be construed as near the minds and apparent intents of the parties as It possibly may be, and the law will per- mit. Sis.son V. Donnelly, 36 N. J. Law, 482. The subsequent parts of this contract exprt-ss the intention of the parties In language so clear, simple, and explicit that it must, in its present form, be understood and construed just exactly as it would be after It was re- formed. Where that is the case, reformation can accomplish nothing; Indeed, there is nothing to reform, for the contract, with tlie mistake in It, is to be construed and carried into effect just as if it was entirely free from mistake. A mistake which is harmless, and does no injury, needs no correction. This court cannot take jurisdiction on the ground that the contract sued on needs reformation. This suit is brought to enforce a money de- mand, founded on a simple contract. If that was all there was of it, there would not be the least pretense of jurisdiction in this court. And so, if the contract consisted of a promise by the defendants to pay money to the com- plainant and her brother, for a consideration moving from their father to the defendants, there can be no doubt that an action at law might be maintained on it; for it is settled that, in cases of simple contract, if one person makes a promise to another for the benefit of a third, the third may maintain an action at |..law on it, though the consideration does not move from him. It is otherwise when the contract is under seal. Joslin v. Car Spring Co., 30 N. J. Law, 141. But this contract was made by a person acting as trustee for the benefit of his cestuis que trust A fa- ther, as the natural guardian of }iis two infant children, agrees to waive his right, as the person having the first and best right to act as the next friend of his children, to contest the validity of a will by legal proceedings, on condition that, if no contest is made and the will is admitted to probate, and the testatrix's property is distributed as the will directs, the persons taking the largest benefit imder the will will pay a certain sum of money, not to the children, but to the father for his chil- dren. Now, in such a transaction, the father, from the beginning to the end, is acting in a capacity of pure tnist. It is true, he is a si'lf- constituted trustee, but he assumes that char- acter under circumstances when the common instinct of our nature made it his duty to do .so, and when, if he had not done so, he would have allowed what he believed to be an un- conscientious advantage to be taken of his children. The fact that the contract was made by a person acting as a trustee, for the benefit of his infant cestuis que trust, may not be decisive on the question of jurisdic- tion, but it shows that the contract belongs to a class of transactions over which this court exercises a very extensive jurisdiction. 252 CONSIDERATION. I t>iink there is reason to doubt whether the children could maintain an action at law on this contract in their own names. No prom- ise is made to them; on the contrai-y, the promise is to their father, the language of the contract being: *'We do agree to pay the sum of ?4.000 to R. C. Rue, as the representative of his two children." But if the children could have maintained an action at law in their own names, it would be necessary now, as one of them is dead, that two actions should be brought,— one in the name of the suiTiving child, and the other in the name of the administratrix of the deceased child. There may, perhaps, be less doubt about the right of the father to maintain an action at law in his name for the use of his children. I think such action would be maintainable. The cases at law, however, upon this subject are at variance. Judge Story, in his com- mentaries on Equity Jurisprudence, calls at- tention to the fact that the cases at law on this subject are not uniform, and that the law in consequence is somewhat uncertain, and then adds: "But, be this as it may, it is certain that a remedy would lie in equity, under like circumstances, as a matter of trust; for it is laid down in a work of veiy high authority. 'If a man gives goods or chattels to another, upon a trust to deliver them to a stranger, chancery will oblige him to it.' " 2 Stoi-y, Eq. Jur. § 1041. And I suppose it would necessarily follow that, where a prom- ise was made to one as a trustee for another, upon a sufficient consideration, that chancery would oblige the promisor to perform his promise at the suit of the cestui que trust, especially in a case where the consideration for his promise consisted in the extinguish- ment of a right belonging to the cestui que trust But another fact and the one which I think possesses the greatest force, remains to be mentioned. The bill alleges that, subsequent to the making of the contract sued on, the defendants, Meirs and Davis, made an agree- ment apportioning the $4,000 between them- selves, by which it was agreed that Meirs should pay $3,000, and Mrs. Davis the re- maining $1,000, and that, in pursuance of such apportionment, Mrs. Davis, on the twenty- third day of May, 1877, paid Robert C. Rue, who was then the duly-appointed guardian of the complainant and her brother, her quota of the $4,000. There can be no doubt, I think, that the making of this agreement, and its subsequent execution by Mrs. Davis, raised an equity in her favor as against her co-defendant, and also against the complain- ant, to be exonerated from all liability for the $3,000, provided the money could be collected of Meirs. He is the person who is unques- tionably primarily liable as between Mrs. Davis and himself, and should, therefore, in justice, in the fii'st instance, be compelled to bear it alone, together with all the legal ex- penses attending its enforcement. Mrs. Da- vis' right to exemption from primary liability was known to the complainant at the time she brought her suit. I think she was under a clear equitable obligation to respect that right, and the only way open to her to ef- fectually protect Mrs. Davis' right in this re- gard, was to bring her suit in this court. Here a decree may be made which will give ]\Irs. Davis the full benefit of any equity aris- ing to her out of the agreement of apportion- ment, and at the same time preserve to the complainant any rights which may exist in her favor against Mrs. Davis, in the event that the whole of the sum due cannot be col- lected of the person who is primarily liable. If the complainant had sued at law, her suit would have been an open declaration that she intended to violate Mrs. Davis' right to be exempt from primary liability, for, if she re- covered at all in such suit, her recovery would have been against both defendants as princi- pals, each being adjudged liable for the whole amount of the recovery. An attempt by the complainant, with full knowledge of Mrs. Davis' equity, to place Mrs. Davis in the sit- xiation in which she would stand by a judg- ment at law against her, under which the whole of this debt might be made out of her property, might, under some circumstances, be so strongly indicative of a fraudulent pur- pose on the part of the complainant as to justify this court in interfering by injimction. Equity will, in cases of this class, take Juris- diction whenever it is necessary to compel the person primarily liable to perform an ob- vious duty, and thus relieve another person standing in the position of his surety from a needless burden, and also to prevent circuity of action. Irich v. Black, 17 N. J. Eq. 189. For these reasons I think this court should retain jurisdiction of this cause. This suit, in its present condition, is defect- ive in parties. Robert C. Rue, the person with whom the contract on which the suit is founded was made, is not a party. His omis- sion is made a ground of objection by the demurrant. He is a necessary party, and this gi'ound of demurrer must be sustained. The others must be overruled. h' b NATURAL 0"^ AFFECTION. 253 FINK V. COX. (18 Johns. 145.) Supreme Court of New York. Aug., 1820. This was an action of assumpsit bruuglit to recover the amount of a promissoiy note, given by the testator, Alexander Fink, to his son, the plaintiff. The note, which was prov- ed by the subscribing witness, was as follows: "New-York, 30lh July, ISIG. Sixty days aft- er date, I promise to pay John L. Fink, or order, one thousand dollars, value received. Alexander X Fink." The testator, at the mark time he gave the note to the plaintiff, de- clared that he gave it to him absolutely, and observed that the plaintiff was not so wealthy as his brother; and that the plaintiff and his brother had had a controversy about a stall, &c., which were the reasons for his giving thb note to the plaintiff. There was no actual consideration for the note; and the wiinoss understood it to be a gift from the testator to his son. The defendant gave in evidence the will of the testator, by which he devised all his personal estate to his sons, including the plaintiff, in equal proportions; and after a de- vise to his daughter of a house and lot, the residue of his real estate was given to his executors in trust, to sell the same, and di- vide the proceeds equally among his children. The defendant also gave in evidence the plain- tiff's answer to a bill in chancery, for a dis- covery filed by the executor, in which he stated that the note was freely given to him by the testator, and was founded ou the consid- eration of natural love and affection. The cause was tried at the New-York slt- Uugs, in June, 1818. when a verdict was found for the plaintiff, for $1,129 and 30 cents, sub- ject to the opinion of the court, on a case con- taining the above facts. Mr. Van Wyck, for plaintiff. Mr. Slosson, contra. SPENCER, C. J. The question in this case is, whether there is a sufhcient consideration for the note on which this suit is founded. It appears from the declaration of the testator when the note was given, that he intended it as an absolute gift to his son, the plaintiff; alleging that the plaintiff was not so wealthy as his brotlier.'?, that he had met with losses, and that he and his brothers had had a contro- versy about a stall. Such were the reasons assigned for his glvhag the note to the plain- tiff. There can be no doubt that a considera- tion is necessary to uphold the promi.se, and that it is competent for the defendant to show that there was no consideration. Schoou- maker v. Roosa, 17 Johns. 301. The only con- sideration pretended, is that of natiu-al love and affection from a father to a child; and if that is a sufficient consideration, the plain- tiff is entitled to recover, otherwise not. It is conceded, that the gift, in this case, is not a donatio causa mortis, and cannot be supported on that ground. In Pearson v. I'earson, 7 Johns. 2G, the question was, wheth- er the gift of a note signed by the defendant to the plaintiff was such a vested gift, though without consideration, as to be valid in law; we held that it was not, and that a parol promise to pay money, as a gift, was no more a ground of action, than a promise to deliver a chattel as a gift; and we referred to the case of Noble v. Smith, 2 Johns. 52, where the question underwent a full discussion and consideration. The case of Grangiac v. Ar- den, 10 Johns. 293, was decided on the prin- ciple, that the gift of the ticket had been com- pleted by delivery of possession, and is in per- fect accordance with the former cases. It has been sti'ongly insisted, that the note in the present case, although intended as a gift, can be enforced on the consideration of blood. It is, undoubtedly, a fair presumption that the testator's inducement to give the note sprang from parental regard. The considera- tion of blood, or natural love and affection, is sufficient in a deed, against all persons but creditors and bona fide purchasers; and yet there is no case where a personal action has been founded on an exj ^gu tory contract^ where a considergtion was necessary, in whic h the consi derati9]a-a£Jjlood, or natural lov g and af^ has beenn? fejsUo ^ has been "h eld sufficient In such^^ case, the considerattOH filTlSt n"e a valuable one, for the benefit of the promisor, or to the trouble, loss, or prejudice of the promisee. The note here manifested a mere intention to give the one thousand dollars. It was ex- ecutory, and the promisor had a locus pceni- tentice. It was an engagement to give, and not a gift. None of the cases cited by the plaintiff's counsel maintain the position, that because a parent, from love and natural af- fection, engages to give his son money, or a chattel, that such a promise can be enforced at law. Judgment for the defendant. 254 ^ V MILLS T. WYMAN. (3 Pick. 207.) • CONSIDERATION Supreme Judicial Court of Massachusetts. Worcester. Oct. Term, 1825. This was an action of assumpsit brought to recover a compensation for the board, nui-sing, &c., of Levi Wyman. son of the de- fendant, from the 5th to the 20th of Febru- aiy, 1S21. The plaintiff then lived at Hart- ford, in Connecticut; the defendant, at Shrewsbury, in this county. Levi Wyman, at tlie time when the services were rendered, was about 25 years of age, and had long ceased to be a member of his father's fam- ily. He was on his return from a voyage at sea. and being suddenly taken sick at Hart- ford, and being poor and in distress, was re- lieved by the plaintiff in the manner and to the extent above stated. On the 24th of February, after all the expenses had been incurred, the defendant wrote a letter to the plaintiff, promising to pay him such expen- ses. There was no consideration for this promise, except what grew out of the rela- tion which subsisted between Levi Wyman and the defendant, and Howe, J., before whom the cause was tried in the court of common pleas, thinking this not sufficient to support the action, directed a nonsuit. To this direction the plaintiff filed exceptions. J. Davis and Mr. Allen, in support of the exceptions. Mr. Brigham, for defendant PARIvER, C. J. General rules of law es- tablished for the protection and security of honest and fair-minded men, who may in- considerately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in foro conscientise to per- form. This is a defect inherent in all human systems of legislation. The rule that a mere verbal promise, without any consideration, cannot be enforced by action, is universal in its application, and cannot be departed from to suit particular cases in which a re- fusal to perform such a promise may be dis- graceful. The promise declared on in this case ap- pears to have been made without any legal consideration. The kindness and services towards the sick son of the defendant were not bestowed at his request. The son was in no respect under the care of the defend- ant. He was twenty-five years old, and had long left his father's family. On his return from a foreign country, he fell sick among strangers, and the plaintiff acted the part of the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, on being informed of this event, in- fluenced by a transient feeling of gratitude, promises in writing to pay the plaintiff for the expenses he had incurred. But he has determined to break this promise, and is will- ing to have his case appear on record as a strong example of particular injustice some- times necessarily resulting from the oi)era- tion of general nales. It is said a moral obligation is a sufficient consideration to support an express promise; and some authorities lay down the i-ule thus broadly; but upon examination of the cases we are satisfied that the universality of the i-ule cannot be supported, and that there must have been some preexisting obligation, which has become inoperative by positive law, to form a basis for an effective promise. The cases of debts barred by the statute of limitations, of debts incurred by infants, of debts of bank- rupts, are generally put for illustration of the rule. Express promises founded on such preexisting equitable obligations may be en- forced; there is a good consideration for them; they merely remove an impediment created by law to the recovery of debts hon- estly due, but which public policy protects the debtors from being compelled to pay. In all these cases there was originally a quid pro quo; and according to the principles of natural justice the party receiving ought to pay; but the legislature has said he shall not be coerced; then comes the promise to pay the debt that is barred, the promise of the man to pay the debt of the infant, of the discharged banki-upt to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation founded upon an ante- cedent valuable consideration. These prom- ises therefore have a sound legal basis. They are not promises to pay something for nothing; not naked pacts; but the volun- tary revival or creation of obligation which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but pnncipally for the public convenience. If moral obligation, in its fullest sense, is a good substratum for an express promise, it is not easy to perceive why it is not equally good to support an im- plied promise. What a man ought to do, generally he ought to be made to do, whether he promise or refuse. But the law of soci- ety has left most of such obligations to the interior forum, as the tribunal of conscience has been aptly called. Is there not a moral obligation upon every son who has become aflluent by means of the education and advan- tages bestowed upon him by his father, to relieve that father from pecuniary embar- rassment, to promote his comfort and happi- ness, and even to share with him his riches, if thereby he will be made happy? And yet such a son may, with impunity, leave such a father in any degree of penury above that which will expose the community in which he dwells, to the danger of being obliged to preserve him from absolute want Is not a wealthy father under strong moral obligation to advance the interest of an obedient, well disposed son, to fuinish him with the means of acquiring and maintaining a becoming rank MORAL OBLIGATION. 255 In life, to rescue him from the horrors of debt incurred by misfortune? Yet the law will uphold him in any degree of parsimony, short of that which would reduce his son to the necessity of seeking public charity. Without doubt there are great interests of society which justify withholding the coer- cive arm of the law from those duties of im- perfect obligation, as they are called; imper- fect, not because they are less binding upon the conscience than those which are called perfect, but because the wisdom of the social law does not impose sanctions upon them. A deliberate promise, in writing, made free- ly and without any mistake, one which may lead tlie party to whom it is made into con- tracts and expenses, cannot be broken with- out a violation of moral duty. But if there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it. It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the prom- ise validity. And in the case of the promise of the adult to pay the debt of the infant, of the debtor discharged by the statute of lim- itations or bankruptcy, the principle is pre- sei-ved by looking back to the origin of the transaction, where an equivalent is to be found. An exact equivalent is not required by the law; for there being a consideration, the parties are left to estimate its value: though here the courts of equity will step in to relieve from gross inadequacy between the consideration and the promise. These principles are deduced fi*om the gen- eral current of decided cases upon the sub- ject, as well as from the known maxims of the common law. The general position, that 1 moral obligation is a sufficient consideration for an express promise, is to be limited in its application, to cases where at some time or other a good or valuable consideration has existed. ~ A legal obligation is always a sufficient consideration to support either an express or an implied promise; such as an infant's debt for necessaries, or a father's promise to pay for the support and education of his minor children. But when the child shall have at- tained to manhood, and shall have become his own agent in the world's business, the debts he incurs, whatever may be their na- ture, create no obligation upon the father; and It seems to follow, that his promise founded upon such a debt has no legally binding force. The cases of instruments under seal and cer- tain mercantile contracts, In which consider- ations need not be proved, do not contradict the principles above suggested. The first import a consideration in themselves, and the second belong to a branch of the mercantile law, which has found it necessary to disre- gard the point of consideration in respect to instruments negotiable in their nature and essential to the interests of commerce. Insteal of citing a multiplicity of cases to support the positions I have taken, I will only refer to a veiT able review of all the cases in the note In 3 Bos. & P. 249. The opinions of the judges had been variant for a long course of years upon this subject, but there seems to be no case in which it was nakedly decided, that a promise to pay the debt of a son of full age, not living with his father, though the debt were Incurred by sickness which ended in the death of the son, without a previous request by the father proved or presumed, could be enforced by action. It has been attempted to show a legal obli- gation on the part of the defendant by vir- tue of our statute, which compels lineal kin- dred in the ascending or descending line to support such of their poor relations as are likely to become chargeable to the town where they have their settlement. But it is a sufficient answer to this position, that such legal obligation does not exist except in the very cases provided for in the statute, and never until the party charged has been ad- judged to be of sufficient ability thereto. We do not know from the report any of the facts which are necessary to create such an obliga- tion. Whether the deceased had a legal set- tlement in this commonwealth at the time of his death, whether he was likely to be- come chargeable had he lived, whether the defendant was of sufficient ability, are essen- tial facts to be adjudicated by the court to which is given jurisdiction on this subject The legal liability does not arise until these facts have all been ascertained by judgment after hearing the party intended to be charged. For the foregoing reasons we are all of opinion th.nt the nonsuit directed by the court of common pleas was right, and that judg- ment be entered thereon for costs for the defendant 256, CONSIDERATION. STEVENS V. COON, a Pin. 356.) Supreme Oourt of Wisconsin. 1843. July Term, EiTor to district court, JefEerson county. Coon brought an action of assumpsit against Stevens in the Jefferson county dis- ti-ict court upon a wTitten contract, by which Stevens bound himself that a certain eighth of a section of land which Coon was about to enter should sell by a given day for $200 or more, and Coon agreed to give Stevens one-half of all the land should sell for over $200. On the trial in the court below. Coon, the plaintiff, proved the entry of the land, and introduced evidence to prove that the land, at the time specified in the contract, was worth about $1.25 per acre. Upon this testimony, the defendant moved the court to instruct the jury as in case of a nonsuit, for the following reasons: "(1) Because the said supposed contract was a nudum pactum, by which the defend- ant received nc bonePt and the plaintiff no Injury. "(2) Becausd the supposed contract as- sumes to bind the defendant to perform an impossibility. "(3) Because said writing discloses a gam- bling contract, if any." Tlie court overruled the motion and re- fused the insti-uction asked for, and the jury returned a verdict in favor of the plaintiff for $116.50, upon which the court rendered judgment. David Brighauv, for plaintiff in error. Ed- ward V. Whiton, for defendant in error. DUNN, C. J. Error is brought in this case to reverse a judgment of the district court of Jefferson county. Coon, plaintiff bel-^sv, brought his action of assumpsit against Stevens, defendant be- low, to recover damages on a liability grow- ing out of a contract, which is in the words, etc., following, viz.: "Astor, March 23, 1839. In consideration of C. J. Coon entering the west half of the north-west quarter of section 35, in town. 13, range 13, I bind myself that the said eighty acres of land shall sell, on or before the 1st October next, for two hundred dollars or more, and the said Coon agrees to give me one-half of the amount over *wo hundred dollars said land may sell for in considera- tion of my warranty. Hamilton Stevens." to the above contnict. C. J, "I agi'ee Coon." At the August term of the said Jefferson county district court, in the year 1840, the said defendant Stevens pleaded the general issue, which was joined by the said plaintiff Coon, and after several continuances the case was tried at the October term, 1842. On the trial, the above contract, and the re- ceiver's receipt to said plaintiff Coon for the purchase-money for said tract of land de- scribed in said contract, were read in evi- dence to the jury; and Abraham Vander- pool, a witness, testified "that he had visit- ed that part of the country where the land lies, specified in said writing, and was upon the same, as he has no doubt, and estimated the present value of the same at $1.50 per acre, and that in October, 1839, it might be worth $1.25 an acre." Upon this evidence and testimony the plaintiff rested his case. Under the construction put on the contract read in evidence the jui-y found for the plain- tiff $116.50 in damages, and judgment was entered thereon. There is manifest error in this decision of the court. From an inspec- tion of the contract it is obvious that it is not such an one as is obligatory on either party. There is no reciprocity of benefit, and it binds the defendant below to the per- formance of a legal impossibility, so palpa- ble to the contracting parties that it could not have been seriously intended by the par- ties as obligatory on either. The undertak- ing of the defendant below is "that plain- tiff's tract of land shall sell for a certain sum by a given day." Is it not legally im- possible for him to perform this undertak- ing? Certainly no man can in legal contem- plation force the sale of another's property by a given day, or by any day, as of his own act. The plaintiff was well apprised of the deficiency of his contract on the trial, as the testimony of his witness was entirely apart from the contract sued on, and was directed in part to a different contract, and such an one as the law would have recognized. If tUe contract had been that the tract of land would be worth $200 by a given day, then it could have been recovered on, if it did not rise to that value in the time. 1 Comyn, Cont. 14, 16, 18; Comyn, Dig. Tit. "Agree- ment"; 1 Poth. Obi. 71; 6 Pet. Abr. 218; 2 Sand. 137. The district court should not have entered judgment on the finding of the jury in this case. The construction of the contract by the district court was eiToneous. Judgment reversed, with costs. DOING WHAT OXE IS BOUND TO DO. ^>' STILK V. MYRICK. (2 Comp. 317.) 257 Michaelmas Term. 50 Geo. III. This was an action tor seaiuau's wages, on a vojaj^e from London to the Baltic and back. By the ship's articles, executed before the couiniencemont of the voyage, the plaiutifT was to be paid at the rate of £5 a month; and the principal question in the cause was, whether he was entitled to a higher rate of wages. In the course of the voyage, two of the seamen deserted, and the captain, having in vain attempted to supply their places at Cronstadt, there entered into an agi'eement with the rest of the crew, that they should have the wages of the two who had deserted equally divided among them, if he could not procure two other hands at Gottenburgh. This was found impossible; and the ship was worked back to London by the plaintiff and eight more of the original crew, with whom the agreement had been made at Cronstadt. Mr. Garrow, for defendant. Insisted, that this agreement was contrary to public policy, and utterly void. Ln West-India voyages, crews are often thinned greatly by death and desertion; and if a promise of advanced wa- ges were valid, exorbitant claims would be set up on all such occasions. This ground was strongly taken by Lord Kenyon, in Har- ris v. Watson, Peak, 72, where that learned judge held, that no action would lie at the suit of a sailor on a promise of the captain to pay him extra wages, in consideration of his doing more than the ordinary share of duty in navigating the ship; and his lordship said, that If such a promise could be en- forced, sailors would in many cases suffer a vessel to sink unless the captain wotild ac- cede to any extravagant demand they might ■^hink proper to mnke. The Attorney-General, contra, distinguished HOPK.SEL.r-AS.CONT.— 17 this case from Harris v. Watson, as the agreement here was made on shore, when there was no danger or pres.siug emergency, and when the captain could not be supposed to be under any con.'^traint or apprehension. The mariners were not to be permitted on any sudden danger to force concessions from the captain; but why should they be de- prived of the compon.sation he voluntarily of- fers them in perfect security for their extra labour during the remainder of the voyage? LORD ELLENBOROUGH. I think Har- ris V. Watson (Peak, 72) was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of con- sideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or If the captain had capriciously discharged the two men who were wanting, the others might not have been compelled to take the whole duty upon themselves, and their agree- ing to do so might have been a sufficient con- sideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death, and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her des- tined port Therefore, without looking to the policy of this agroement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of £5 a month. Verdict accordingly. CONSIDERATION. MUNROE V. PERKINS. (9 Pick. 298.) Supreme Judicial Ck)urt of Massachusetts. Suf- folk and Nantucket March, 1S30. Indebitatus assumpsit for work done, mate- rials found, money paid, &c. brought against the defendant jointly with William Payne, who died after the action was commenced. At the trial before the chief justice it ap- peared, that in 1821 the plaintiff was employ- ed by Perkins and Payne to build a hotel at Nahant, which was begun in that year and finished in 1823. The general defence was, that there was a special contract, and that the work had been paid for according to the terms of that contract For the purposes of this case it was admit- ted, that the amoimt of exi)enditures made and incun-ed by the plaintiff in and about the work, exceeded the amount of the payments made to him. It appeared that In 1821, a number of per- sons associated themselves for the purpose of erecting a hotel at Nahant and subscribed certain sums of money therefor; that Perkins and Payne were subscribers and were the agents of the association, which was to be incorporated as soon as possible, and which was incorporated accordingly in February, 1822. The defendant offered in evidence an agree- ment imder seal, dated October 24, 1821, wherein the plaintiff engages to build the ho- tel according to a certain drawing and de- scription, and the defendant and Payne, in behalf of their associates, agree to pay the plaintiff therefor 14,500 dollars as the work advances. T. W. Sumner, a witness called by the de- fendant, testified that the work was executed upon the basis of the drawing and description referred to in the sealed contract; that there were some deviations, consisting of additional ffork; that this was considered as extra work, not included in the contract, and was paid for separately according to its full cost and value. To prove a waiver of the special contract, the plaintiff introdnced several witnesses. J. Alley testified, that in 1825 he said to the de- fendant, it was a pity Munroe had under- taken to build the hotel; to which the de- fendant replied, that Munroe would not lose any thing by it and that they had agreed to pay him for every minute's work and for all he had purchased. J. Mudge testified, that in the spring of 1823 the plaintiff was in- debted to the Lynn bank on a note for 1100 dollars, which he wished to have renewed, but that the directors were not satisfied of his solvency; that in April of that year, the plain- tiff came to the bank with Payne, who said he was the agent who attended to the busi- ness of the Nahant hotel in the absence of Perkins, who had gone to Europe; that he wanted to get from the bank some indulgence towards the plaintiff; that the corporation would leave the plaintiff as good as they found him; they would pay Munroe for aU he should lay out; that Munroe should not stop for want of funds; that he (Payne) knew Per- kins's mind upon the subject; that the bills would be paid, and the plaintiff should not suffer. W. Johnscn testified, that on the strength of this representation of Payne, the bank renewed the plaintiff's paper. W. Babb testified, that in May, 1822, the defendant asked the plaintiff how he got on; that the plaintiff said poorly enough; that the defend- ant told him he must persevere; the plaintiff said he could not without means; and the de- fendant repeated, you must persevere, and add- ed, you shall not suffer, we shall leave you as we found you. The defendant objected to this evidence, that it was insufficient in law to set aside the special contract; that it did not amount to a waiver of the original contract, but so far as it proved any thing, it was evidence of a new express promise, which was without consideration and from which no implied as- sumpsit could be raised. Also, that the con- versation with Perkins at one time and with Payne at another, were not joint promises and created no joint cause of action, but that the liability, if there was any, was several. A verdict was taken by consent, subject to the opinion of the court S. Hubbard and F. Dexter, for defendant Ward, contra. PER CURIAM. The verdict of the jury has established the fact, if the evidence was le- gally sufficient, that the defendant, together with Payne, made the promise declared on. The defence set up was, that the work was done and the materials were furnished on a special contract under seal, made by the de- fendant and Payne on behalf of themselves and other subscribers to the hotel; and such a contract was produced in evidence. The main question is, whether, there being this contract under seal, for a stipulated sum, an action lies on a general assumpsit for the amount which the building actually cost; which is more than the sum specified in the contract It is said on the part of the plaintiff, that having made a losing bargain and being unwilling and una- ble to go on with the work, Perkins and Payne assured him that he should not suffer; and that the work was carried on and finish- ed upon their engagement and promise that he should have a reasonable compensation, without regard to the special contract This engagement is to be considered as proved. If by law it was admissible to show a waiver of a special contract It is objected, that as the evidence was parol, it is insufficient in law to defeat or avoid the special contract; and many author- ities have been cited, to show that a sealed contract cannot be avoided or waived but by an instrument of a like nature; or generally, that a contract under seal cannot be avoided DOING WHAT ONE IS BOUND TO DO. 259 or altered or explained by parol evidence. That this is the general doctrine of the law cannot be disputed. It seems to have emanat- ed from the common maxim, "Unumquodque dissolvitur eo ligamine quo ligatur." IJut lilce other maxims, this has received qualiflcatiuns, and indeed was never true to the letter, for at all times, a bond, covenant or other sealed instrument might be defeated by parol evi- dence of payment, accord and satisfaction, &c. It is a general principle, that where there is an agreement in writing. It merges all pre- vious conversations and parol agreements; but there are many eases in which a new parol contract has been admitted to be proved. And though when the suit is upon the writ- ten contract itself, it has been held that parol evidence should not be received, yet when the suit has been brought on the ground of a new subsequent agreement not in writing, parol evidence has been adsDitted. In Ratcliff v. Pemberton, 1 Esp. 35, Lord Kenyon decided, that to an action of cove- nant on a charter-party, for the demurrage which was stipulated In it, the defendant might plead that the covenantee, who was the master and owner of the ship, verbally permitted the delay, and agreed not to exact any demurrage, but waived all claim to it He laid down a similar rule in Thresh v. Rake, Id. 53; where however the contract does not appear to have been under seal. In 2 Term R. 483, there were articles of partnership, containing a covenant to account at certain times; and upon a balance being struck, the defendant promised to pay the amount of the balance; and it was held that assumpsit would lie upon this promise. The case of Lattimore v. Hareen, 14 Johns. 330, comes nearer the case at bar. There the plaintiffs had agreed to perform certain work for a stipulated sum of money, under a pen- alty. After they had entered upon the per- formance of it, they determined to leave off, and the defendant, by parol, released them from their covenant, and promised them, if they would complete the work, that he would pay them by the day. The court hold, that if the plaintiffs chose to incur the penalty, they had a right to do so, and that the new contract was binding on the defendant In Dearborn v. Cross, 7 Cow. 48, it is held, that a bond or other specialty may be dis- charged or released by a parol agreement be- tween the parties, especially where the parol agreement is executed; and the case of Latti- more V. Harsen is there cited and relied on. There are other decisions of like nature In the same court; as Fleming v. Gilbert, 3 Jolms. 358; Keating v. Price, 1 Johns, ("as. 22; Edwin v. .Saund.-rs, 1 Cow. 250. In Bal- lard V. Walker, 3 Johns. Cas. 64, it was held that the lap.se of time between the making of the contract and the attempt to enforce it was a waiver; which is going further than is necessary in the case before us, for here there is an express waiver. In Le Fevre v. Le Fevre, 4 Serg. & R. 241, parol evidence was admitted to prove an alteration of the course of an aqueduct es- tablished by deed. In regard to the objection, that this evidence was in direct contradiction to the deed, Duncan, J. remarks, that "the evi- dence was not offered for that purpose, but to show a substitution of another spot If this had not been carried into effect the evi- dence would not have been admissible; but where the situation of the parties is altered, by acting upon the new agreement the evi- dence is proper; for a partj' may be admitted to prove by parol evidence, that after signing a written agreement the parties made a verbal agreement, varying the former, pro- vided their variations have been acted upon, and the original agreement can no longer be enforced without a fraud on one party." The distinction taken in the argument be- tween contracts in writing merely and con- tracts under seal, appears by these author- ities not to be important as it respects the point under consideration, and justice requir- ed in the present case, that the parol evidence should be received. It was said that the promise of Payne can- not affect Perkins, and vice versa. But as they were joint actors, and as when one ar-ted in the absence of the other, it was always with a joint view to the same object tliey cannot be separated, but must be considered as joint promisors. The parol promise, it is contended, was without consideration. This depends entirely on the question, whether the first contract was waived. The plaintiff having refused to perform tliat contract as he might do, sub- jecting himself to such damages as the other parties might show they were entitled to re- cover, he afterward went on upon the faith of the new promise and finished the work. This was a suflicient consideration. If Payne and Perlcins were willing to accept his re- linquishment of the old contract and proceed on a new agreement the law, we think, would not prevent It Motion for new trial overruled. 260 COiHSIDEKATIOX. ^ iW {p VANDERBILT v. SCHREYER- xJ (91 N. Y. 392.) Court of Appeals of New York. March 6, 1S83. The material facts are stated in the opin- ion. T. M. Tyng, for appellant. John L. Lind- say, for respondent. RUGER, C. J. This was an action to fore- close .1 mortgrage for $5,000 given September 5, 1873. by one James Dunseith and wife to John Schreyer, and by him assigned to the plaintiff or. the 5th day of May, 1S74. Schreyer was made a party defendant, and it was sought to chai'ge him with the pay- ment of any deficiency that might arise upon a sale of the mortgaged premises, upon the ground that he had guaranteed the payment of the mortgage debt. Schreyer answered, and after admitting the assignment and the guaranty of payment al- leged by way of defense, that on the 2d day of February, 1874, the plaintiff entered into a contract with George Gebhardt and Mat- thew L. Ritchie for the erection by him of certain buildings for them upon certain lots in the city of New York, for which he was to receive !?S,175. to be paid as follows: "When the said houses are topped out, a pay- ment of $5,000 by assignment of a bond and mortgage held by John Schreyer on the prop- erty of Anna Maria Schreyer, No. 350 West Forty-Second street, New York City," and the balance, amounting to $3,175, when the houses should be fully completed. Vander- bilt commenced performance of his contract and continued until he became entitled to the assignment of the $5,000 mortgage. Schreyer thereupon offered to assign it to the plaintiff, but the latter refused to accept an assignment unless Schreyer would also guar- antee payment. The defendant refused to do this, and Vanderbilt then suspended work upon the buildings for about two months. The defendant then under protest, and be- lieving, as he alleges, that he was acting un- der compulsion, executed the assignment with the guaranty in question. The plaintiff then completed his contract and received the balance of the consideration. The answer further states "that it was neither under said contract or otherwise made a condition of the plaintiff's accepting the assignment of said mortgage that this defendant or any other person should guarantee the payment thereof," and further "that no consideration ever passed to him or his principals for such guaranty and the same was and is null and void." Upon the trial of the action at special term the plaintiff produced and proved the mort- gage in question, and also an assignment from defendant to plaintiff in the usual form, but containing the following clause: "And I hereby guarantee the payment of said bond and mortgage for $5,000 and interest from May 5, 1874, by due foreclosure and sale." The assignment and guaranty were sealed and executed in the presence of a subscrib- ing witness. The plaintiff thereupon rested, and the defendant offered to prove in sub- stance the facts alleged in his answer, which offer was objected to and excluded upon the ground that such answer did not set up facta constituting a defense. The defen,'lnnt ex- cepted to such ruling. The court thereupon held that said guaranty was absolute and ordered judgment against Schreyer for the deficiency which had previously been ascer- tained by a sale of the premises. An appeal was taken to the general term, which re- versed the judgment and directed a dismiss- al of the complaint upon the ground that Schreyer was improperlj^ made a defendant, because the guaranty- in question was in ef- fect a guaranty of collection only, and that no right of action arose thereon until after the amount of the deficiency had been asce;- tained by a judicial sale of the mortgaged premises. ^-yv- yw\ ) _^ ~ TT'e dfffSr^Tn our~T!onciusion from tnat reached by both of the courts below. The guaranty in question is not an abso- lute guaranty for the payment of the mort- gage, but a guaranty that it shall be paid in a particular manner. In construing it we must give effect not only to the entire in- strument, but also to all of its language. This requires us to give some effect to the words, "by due foreclosure and sale," and they can perform no other office in the con- nection in which they are used than to qual- ify and limit the operation of the preceding words, "I hereby guai-antee the payment of said bond and mortgage." We must conclude that the parties put these words into their contract for some purpose; and the only pur- pose they can be made to serve is to make the guaranty a conditional instead of an abso- lute one. A covenant quite similar to this was held in the case of Mabaiwe Bank v. Culver, 30 N. Y. 313, to be a covenant to pay any deficiency existing after a foreclosure and sale. But we suppose it to be immaterial wheth- er this guaranty be called a guaranty of pay- ment or of collection, for in either event the plaintiff was entitled to make Schreyer a party defendant in the foreclosure action and demand and recover a judgment against him therein for any deficiency which might arise on a sale of the mortgaged premises. The principles applicable to the prosecu- tion of actions against guarantors of the col- lection of promissoi-y notes and other securi- ties do not apply to actions for the foreclo- sure of mortgages. In the latter the persons who may be made parties therein are point- ed out by statute, and include all who are under obligation to pay the mortgage debt, or any part thereof, whether such obligation be absolute or conditional. This action was commenced, and tried, pri- or to the adoption of section 1627 of the Code DOING WUAT ONE IS BOUND TO DO. 261 of Civil Procedure. It must therefore be gov- erned by the provisions of tiie Revised Stat- utes. The sections applicable are the follow- ing: 2 Rev. St.(lsl Ed.; lUl, § 154, reads: "If the mortgage debt be secured by the ob- ligation or other evidence of debt hereafter executed, of any other person Ijcside the mort- gagor, the complainant may make such per- son a party to the bill, and the court may de- cree payment of the balance of such debt re- maining unsai'stied after a sale of the mort- gaged premises, as well against such other pei*son as the mortgagor, and may enforce such decree as in other cases." Section 153, Id., reads: "After such bill [bill for foreclo- sure] shall be hied while the same is pend- ing, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mort- gage or any part thereof unless authorized by the court of chancery." These provisions of the statute remained without material changes, so far as the ques- tion under discussion is concerned, until the adoption in ISSO of the last portion of the Code of Civil Procedure. The scheme of these provisions was stated by this court in Society v. Stevens, G3 N. Y. 341, to be to prevent oppressive litigation by the multi- plication of actions against the several per- sons who might be liable for the same mort- gage debt, and to require all of the parties interested in its payment to be wrought into the same suit and thus settle their respective liabilities in one comprehensive action. Pre- vious to the enactment of section 1627 of the Code of Civil I'rocedure it was the set- tled practice of courts of equity to bring all parties who were in any waj- liable for the payment of the mortgage debt, or any part thereof, and whether liable upon an ab- solute or conditional undertaking, into the same foreclosure action and decree payment of any deficiency arising on a sale of the mortgaged premises, against any of the par- ties appearing to be liable therefor, accord- ing to the nature and circumstances of such liability. The principle that such person, whether liable conditionally or absolutely, may be sued and made liable for any defi- ciency in an action to foreclose the mort- gage is laid down in the works on chancery practice and sustained by numerous eases. See 2 Hoff. Ch, Prac. 14l', 142; 2 Barb. Ch. Pi"ac. 175, 170; Leonard v. Morris, 9 Paige, 90; Suydam v. Bartle, Id. 294; Curtis v. Ty- ler. Id. 432; Griffith v. Robertson, 15 Hun, 344; Scofleld v. Doscher, 72 N. Y. 491. Oth- er actions of a similar nature are provided for In our stitute, as in the case of proceed- ings in equity against insolvent corporations to reach stockholders and trustees who may be contingently liable for the payment of the debts of such corporations. These trustees and stockholders are chargeable with a con- ditional liability in the action brought to dis- solve the corporation. Of course, where the liability of a person to pay a mortgage debt depends upon some extrinsic event which cannot be determined in the prosecution of the foreclosure suit, he could not be made a party to such an action and charged with a deficiency, because by the terms of his con- tract, his liability would not commence until the happening of the event contracted for, and that might be wholly disconnected with the process of foreclosure. Such was the case of Coal Co. v. Blake, 85 N. Y. 220, where the party guaranteed to pay the mortgage debt, provided another party upon demand did not do so. There a demand was held necessary before suit brought. The serious consequences of neg- lecting to include as parties all persons liable for the payment of the mortgage debt in a foreclosure thereof are illustrated in the case of Society v. Stevens, already cited. It was there held that upon an application for leave to prosecute an action at law against parties liable for the payment of the mortgage debt, the granting of the permission rested in the discretion of the court, whether the applica- tion was made during the pendency of the foreclosure suit or after it had terminated; and that in the exercise of a wise discretion the court had the power to deny such per- mission, even when the claim had not been prosecuted in the foreclosure suit The order of the court below granting leave to prose- cute such an action was reversed, upon the I ground that it had decUned to exercise its un- doubted discretionary power. That an action at law either during the pendency or after the termination of a fore- closure suit cannot be maintained by the holder of a mortgage against a person liable for the payment or collection of the mort- gage debt, without leave of the court duly obtained, has frequently been held in this state. Pattison v. Powers, 4 Paige, 549; Comstock V. Drohan, 71 N. Y. 9; Scofield v. Doscher, supra. It follows from tliese au- thorities that the plaintiff was not only jus- tified in making Schreyer a defendant in this action, and asking judgment for a deficiency against him, even though his guaranty was one of collection merely, but that it would have been hazardous to his security if he had ofli jtted to do so. ^ - A more serious question however arises un- der the exception taken to the rulings of the special term excluding the evidence offered by the defendant to prove the facts stated in his answer, showing that the guaranty was without consideration. In considering this question the allegations in the answer must be assumed to be true, and that the defendant would have proved them if he had not been precluded by the rulings of the court from doing so. The an- swer, while perhaps inartificially drawn, cer- tainly alleged all of the facts necessary to show that neither Gebhardt and Ritchie, nor the plaintiflf, had received any consideration for the guaranty in question. This he should have been allowed to prove. The production 2G2 CONSIDERATION. of the assignment in evidence, purporting to be executed "for value received," and being under seal was prima facie evidence only of a valuable consideration. It was not conclu- sive and could be disproved if it was in the defendant's power to do so. 3 Rev. St. (Gth Ed.) 672, § 124; Boolistaver v. Jayne, 60 N. Y. 146; Anthony v. Harrison, 14 Hun, 198, affirmed in this court, 74 N. Y. 613. The incorporation of this guaranty into the assignment for which there was a considera- tion does not affect the question. It was not essential to the assignment and was, so far as its legal effect was concerned, a sepa- rate instrument, and must be supported upon a sufficient consideration or treated as nu- dum pactum. It is quite clear that the plaintiff had no right to demand this guaranty by the terms of his original contract with Gebhardt and Ritchie. That was satisfied by a mere nail- ed transfer of his interest in the mortgage. It was held in Van Eps v. Schenectady, 12 Johns. 436, that an agreement to execute a deed of lands was satisfied by the execution of a deed, without warranty or covenants. So it has been held that a party has no right to impose any conditions to the performance of a contract, except those contained in the contract itself- Furnace Co. v. French, 34 How. rrac. 94. It being clear that Vander- bilt had no legal right to require, as a condi- tion to the fulfillment of his contract, the performance of an act not required by the contract, it is difficult to see what benefit he has bestowed or what inconvenience he has suffered in return for the undertaliing as- smned by the defendant. He promises to do only that which he was before legally bound to perform. Even though it lay in his power to refuse to perform his contract, he could do this only upon paying the other party the damages occasioned by his non- [jerformance, and that in contemplation of law would be equivalent to performance. He liad no legal or moral right to refuse to per- form the obligation of the contract into which he had upon a good consideration vol- untarily entered. There is no evidence In support of a claim that this guaranty was given as a compro- mise of any dispute arising with reference to the obligations of the plaintiff under his con- tract with Gebhardt and Ritchie. The case is not, therefore, brought within the cases in which a promise has been upheld on the the- ory that it was made in settlement of a con- troversy over disputed claims. The authori- ties seem quite uniformly to show the inade- quacy of the consideration alleged for the guaranty in question. In Geer v. Archer, 2 Barb. 420, the defendant visited the plaintiff to pay her an installment upon a mortgage given by him a few weeks before on a pur- chase of land. She complained that she had not received the fair value of her land upon such purchase. The defendant offered to give her his note for $200 to satisfy her com- plaints. She replied that she would be sat- isfied with that, whereupon the note in ques- tion was given. It was held that this note was void for want of consideration. So, where land was sold and described in the deed as containing a certain quantity, and a deficiency was afterward discovered, it was held that there was no obligation on the grantor to compensate the grantee for such deficiency, and a promise to pay the same was without consideration. Smith v. Ware, 13 Johns. 257; Ehle v. Judson, 24 Wend. 97. Pollock states the rule as follows: That "neither the promise to do a thing, nor the actual doing of it, will be a good considera- tion if it is a thing which the party is bound to do by the general law, or by a subsisting contract with the other party." Pol. Cont 161; Crosby v. Wood, 6 N. Y. 369; Deacon V. Gridley, 15 C. B. 295. "Nor is the per- formance of that which the party was un- der a previous valid, legal obligation to do a sufficient consideration for a new contract." 2 Pars. Cont 437. When certain sailors had signed articles to complete a voyage, but at an intermediate port refused to go on, and the captain thereupon promised to pay them increased wages, it was held that the prom- ise was without consideration. Bartlett v. Wyman, 14 Johns. 200. A firm having a con- tract to build a railroad found the contract unprofitable, whereupon the railroad compa- ny promised, if they would go on and com- plete the contract, they would repay to the contractors aU of the obligations which they had or would incur in consequence of their completion of the work. Held no considera- tion. Ayres v. Railroad Co., 52 Iowa, 47S, 3 N. W. 522. When a mortgagor, as a condition to the payment of his mortgage, exacted from the mortgagee an obligation that he would pro- cure the cancellation of a certain outstand- ing bond executed by the mortgagor, or pay him the sum of $100, said bond being given to indemnify against some apparent incum- brance, it was held, that it not being shown that there was any incumbrance existing against the land, the obligation was without consideration. Conover v. Stillwell, 34 N. J. Law, 54. When the plaintiff agreed to en- ter the military service of the United States to the credit of the town of Tobin for $100, and on arriving at the place of enlistment, being offered an advanced price by others, refused to perform unless they would pay him $250 additional, held, that an obligation to pay him the additional amount was void for want of consideration. Reynolds v. Nu- gent, 25 Ind. 328. A sailor signed articles for a voyage to Melbourne and home at three pounds per month ; several of the crew de- serted at Melbourne. The captain, to in- duce plaintiff to remain, signed fresh arti- cles for six pounds per month; Held, no consideration for the promise. Harris v. Carter, 3 El. & Bl. 559; to same effect Stilk V. Myrick, 2 Camp. 317. When defendants DOING WHAT ONE IS BOUND TO DO. 263 gave plaiutiff's notes to provide funds to take up obligation, which plaintiff had pre- viously contracted to pay, held no considera- tion. MalUilieu v. Hodgson, IG Adol. & I'J. (N. S.) CS9. A promist! to pay an attorney additional compensiition to attend as a wit- ness, after he has been duly subpoenaed, is without consideration. The attorney did nothing except what he was legally bound to do. Smithett v. Blythe, 1 Barn. & Adol. 51-i, It would doubtless be competent for par- ties to cancel an existing contract and nialie a new one to complete the same work at a different rate of compensation, but it seems that it would be esseutial to its validity uiat there should be a valid cancellation of the original contract. Such was the case of Lat- timore v. Harsen, 14 Johns. 330. It necessarily follows fi'om these authori- ties that the plaintiff had no right to impose, as a condition to the performance of his con- tract, that the payment of said mortgage should be guaranteed. Although the defond- niit wns not a part}* to tlio original contract and the consideration and contract between him, Gebhardt and Ritchie does not appear. yet we must assume that he acted at the re- quest of Gebhardt and Ritchie, and was re- quired only by such contract to execute such an assignment as Gebliardt and liitchie had contracted to give. The answer, at all events, sets up that he received no consider- ation from any one for the guaranty sued upon. The answer also alleges that the sole con- sideration received for this guaranty was the performance by the plaintiff of his contract with Gebhardt and Ritchie. We think this answer sets forth a defense to the action, and inasmuch as the defend- ant has been erroneously deprived of the op- portimity of proving it, if in his power to do so, that a new trial shovdd be ordered. The judgment therefore of the general term dismissing the complaint should be reversed, and its order reversing the judgment ordered against the defendant at circuit affirmed, and a new trial ordered, with costs to abide the event All concur, except ANDREWS and DAN- FORTH, JJ., not voting. Judgment accordingly. CONSIDERATION. WHEELER T. WHEELER- (11 Vt. 60.) Supreme Court of Vermont Chittenden. Jan. 1839. This was an action of assump.nt on an insi- ntrl coniputasset for $557,05. The defendant filed the following plea, in bar: That before the 2'Jth daj- of May, 1^33, when the accouut- ing. on which the plaintiff declared was had, Bundrv dealinirs had occurred between the plaiiil'iff and this defendant, the charges of which, on the part of the said Reuben, came down to the year ISoO and uo later, and re- mained unliquidated, and that after that time, in consequence of certain losses by fire, this de- fendant became insolvent and was unable to pav the full amount of his debts, and, by rea- son thereof, a negotiation was entered into be- tween this defendant and his creditors, iuclud- inir the said Reuben, for a partial payment of their claims, and on the 30th May, 1831, it was asreed bv and between this defendant and his said creditors, including said Reuben, that this defendant should pay them the one half of their claims, in the following manner: one fourth on or before the first day of June, 1833, and one fourth part more on or before the first day of June, 1835, without interest; and that thev, the said creditors, would accept the same in satisfaction of their said claims, and, in con- sideration that the defendant promised the plaintiff to pay him in manner and form as above, the said Reuben promised the defendant to accept the same, in full satisfaction of hi? said claims; and the defendant avers, that the saia accounting on the said 20th May, 1833. was for the mere purpose of ascertaining the amount of the claim of said Reuben, on which said ip. stalments were to be paid, and that in pursu- ance of said contract, this defendant, on the same 20th May, 1833, paid the plaintiff the one fourth port of" his said claim, which said Reuben then and there accepted, and on the 29th day of May, 183-5, the defendant paid plaintiff the other fourth part of said claim, which plaintiff accepted, and that the same were accept- ed and received in pursuance of -said *61 oo?.tract, and in full satisfaction and dis- charge of his said claim, and that said accoant- ing is the identical claim mentioned in sakl agreement, all which defendant is ready to veri- fy—wherefore, &c. To this plea there was a general demurrer and joinder. Tho county court rendered judgment for plaintiff, and the defendant excepted. Maeck & Smalley, foi- plaintifi. C. Adams, for defendant. COLLAMER, J. It Is not every agreement, however deliberately made, by persons capable to contract, which the law will enforce; nor is it true that the courts of common law have ever taken their suitors under guardianship to set aside contracts, merely befause imprudently made. There is one ingredi'jnt always neces- sary, that is, a legal and sufficient considera- tion. Without this, contracts, executed or ex- ecutory, are always disregarded by courts, un- less thereby innocent third persons would be injured or" defrauded. The performance of that, to which a man is already under obliga- tion, can never constitute a consideration for any contract by the other party. The promise by a debtor to pay a debt, which he is then under legal obligation to pay, creates no new dutj' and can sustain no action, nor constitute the consideration of a promise by the other party. The payment of a debt, by a man then bound to pay, creates no legal obligation on the other party, nor constitutes a consideration for any new promise by him. These prin- ciples, in various *form8 of practical ap- *67 plication, have always been regarded by the courts; nor can any adjudged case be found where they have been violated. It is on this principle that it was early, and has been uni- formlv. holden that a payment of part of a debt, by the debtor, when the whole is due, is not and cannot, by possibility, be a legal con- sideniiion for a contract, on the part of the creditor, to receive it in fuU satisfaction of the whole debt. The payment of a debt, or any part of a debt, before it is due, is what the debtor is not under any legal obligation to do, and therefore is a legal consideration for aeon- tract by the creditor, which contract may be to release or cancel his debt, as well as any other contract. So, too, the delivery of a collateral article, for a debt due in money, is what the debtor is under no obligation to do, and there- fore maybe a legal consideration foracontract by the creditor to receive it in full satisfaction, as well as for any other promise he might make. This has been so often decided, as appears even by the authorities cited by the defendant, that it is entirely unnecessary to repeat them. It is, however, insisted by the defendant, that there are decisions, cited by him. that contra- dict or overrule this principle. This however, on examination, will be found incorrect. Those cases which, at first view, seem to favor such a position, may be arranged under these heads: First. If a debtor, by agreement, delivers to his creditors or to a trustee for them, debts, ef- fects or any collateral property, whether it be the whole or part of what he has, and it be re- ceived in satisfaction, it is a good defence. This is like delivering collateral property to a single creditor on a sole debt. It is doing what the debtor is not under legal obligation to do. and it may be the legal consideration for a con- tract of dkcharge or any other contract by the other party. This disposes of several decis- ions. Serend. If a debtor contracts with one or all of his creditors to procure a friend to secure or pay, out of his own means, part, in satisfaction of a whole debt, and it is done, such creditor can never recover more, even of the debtor himself. It would be a fraud on the third '68 person who paid for *tlie entire release; and the debtor did what he was not un- der a legal obligation to do. in procuring the act of the third person, which was a legal con- sideration for the promise on the other part. This disposes of another class of decisions, re- lied on by the defendant. Third. If a composition deed has been en- tered into by a body of creditors and their debtor, by which they agree to receive, and do receive, in money or effects, from the debtor, or in securities from his friends, a part for the whole debts, there, no one who agreed to the composition can collect a balance, because it would operate a fraud on the other creditors who stipulate for a mutuality and have released their debts. The deed being a specialty under seal, is a technical release. Such are a large class of the defendant's cases. Fourth. If any creditor, professes to enter into a composition deed with others on terms of mutuality, and so induces them to release, when he in fact secretly takes security for more; all such securities, by whomsoever giv- en, are void, being in bad faith and a fraud up- on others. This is, however, only so, when others have actually released their debts. This DOING WHAT ONE IS BOUND TO DO. 265 disposes of all the remainder of the defendant's cases, cited in authority. In the present case, the defendant did not deliver to the plaintiff or to his creditors, or to any trustee for them, his debts or ell'ecls, or any part thereof, lie did not procure any third ])erson to give security or to pay any thing. No composition deed has been signed by any one. Nothing has been paid to any creditor, nor any release bj' them signed, and the\' may collect their whole debts. For the plaintiff to recover his just debt can therefore operate no fraud on any creditor or any third person. This plea stands upon the simple ques- tion, whether the payment, by a debtor, of apart of adebt.when he is bound to pay the whole, can be a legal consideration for a promise, on the part of the creditor, to receive it in full satis- faction. That such could not be the case an- ciently is certain, and is fully conceded by the defendant's counsel. Let us see the language of the courts in some of the most modern *6P cases, where the subject has *becn fully revised and considered. In Fitch v. Sut- ton, 5 East's Rep. 230, where the defendant had compounded with his creditors, and paid all, including the plaintiff, ten shillings in the pound, and the plaintiff had given therefor his receipt in full, Lord EUenborough says, "it can- not be pretended that a receipt of part only, though expressed to be in full of all demands, must have the same operation as a release. It is impossible to contend, that acceptance of seventeen pounds ten shillings is an extin- guishment of a debt of tifty pounds. There must be consideration for the relinquishment of the residue; something collateral, to show a possibility of advantage to the party relinquish- ing his further claim, otherwise the agreement is niulum pactum. " And, he says, the doctrine ot Pinnel's case, 5 Coke, 117, has never been shaken. In the more modern case of Lewis v, Jones, 4 B. & C. 50(5, where the creditor had agreed to receive five shillings on the pound for his debt, upon having the note of the debtor's father therefor, and which he received, Holroyd, J, says, "an acceptance of a smaller sum cannot be pleaded in satisfaction of a larger. In point of law, something further is nece.-,sary to pro- duce that effect. But, I think, when the plain- tiff in this case accepted the father's note, as a security for the payment of the composition money, the agreement did operate as a satis- faction, " Indeed, the distinctions, before men- tioned, are recognized in all the caics and not one is found to sustain this plea. Judgment affirmed. 266 CONSIDERATION. y (V^ JAFFRAY et al. v. DAVIS et aL yl | (26 N. E. 351, 124 N. Y. 164.) \ I CJourt of Appeals of New York. Second DiTi- sicn. Jan. 14. 1891. Appeal from .supreme court, general term, first department. John W. Little and O. F. Wisner, for ap- pellants. Isaac L. Miller, for respondents. POTIER, J. The facts found by the trial court In this case were agreed upon. They are simple, and present a familiar question of law. The facts are that de- fendants were owing plaintiffs, on the 8th day of December, 18sG, for goods sold be- tween that date and the May previous, at an agreed i)riee, the sura of $7,714.37, and that, on the 27th of the same December, the defendants delivered to the plaintiffs their three promissory notes, amounting, in the aggregate, to $3,462.24, secured by a chattel mortgage on the stock, fixt- ures, and other property of defendants, located in East Saginaw, Mich., which said notes and chattel mortgage were re- ceived by plaintiffs, under an agreement to accept same, in full satisfaction and discharge of said indebtedness; that said notea have all been paid, and said mort- gage discharjred of record. The question of law arising from these facts, and pre- sented to this court for its determination, is whether such agreement, with full per- formance, constitutes a bar to this action, which was brought after such perform- ance to recover the balance of such indebt- edness over the sum so secured and paid. One of the elements embraced in the question presented upon this appeal is, viz., whether the pajnnent of a sum less than the amount of a liquidated debt, under an agreement to accept the same in satisfaction of such debt, forms a bar to the recovery of the balance of the debt. This single question was presented to the English court in 1602, when it was re- solved, if not decided, in Pinnel's Case, 5 Coke, 117, "that payment of a lesser sura on the day in satisfaction of a greater tannot be any satisfaction for the whole, *• and that this is so, although it was agreed that such payment should satisfy the whole. This simple question has since arisen in the English courts, and in the courts of this country, in almost numberless instances, and has received the same solution, notwithstanding the courts, while so ruling, have rarely failed uiion any recurrence of the question to criticise and condemn its reasonableness, justice, fairness, or honesty. No respect- able authority that I have been able to find has. after such unanimous disapprov- al by all the courts, held otherwise than was held in Pinnel Case, supra, and Cum- ber V. Wane, 1 Strange, 426; Foakes v. Beer, L. R. 9 App. Cas. 605; Goddard v. O'Brien. (Q. B. Div.) 21 Amer. Law Reg. 6.37, and notes. The steadfast adhesion to this doctrine by the courts, in spite of the current of condemnation by the indi- vidual judges of the court, and in the face of the demands and conveniences of a much greater business, and more exten- sive mercantile dealings and operations, demonstrate the force of the doctrine of sture decisis. But the doctrine of sture decisis is further illustrated by the course of judicial decisionsupon this subject; for, while the courts still hold to the doctrine of the Pinnel and Cumber- Wane Cases, su- pra, they have seemed to seize with avidi- ty upon any consideration to support the agreement to accept the lesser sum in sat- isfaction of the larger, or, in other words, to extract, if possible, from the circum- stances of each case, a consideration for the new agreement, and to substitute the new agreement in place of the old, and thus to form a defense to the action brought upon the old agreement. It will serve the purpose of illustrating the adhe- sion of the court to settled law, and at the same time enable us, perhaps more satis- factorily, to decide whether there was a good consideration to support the agree- ment in this case, to refer to (the consider- ation in) a few of the numerous cases which the courts have held to be sufficient to supi)ort the new agreement. Lord Bl-vckrurn said, in his opinion in Foakes V. Beer, supra, and while maintaining the doctrine, "that a lesser sum cannot be a satisfaction of a greater sum," "but the gift of a horse, hawk, or robe, etc., in sat- isfaction, is good," quii.c regardless of the amount of the debt; and it was further said by him, in the same opinion, " that payment and acceptance of a parcel before the day of payment of a larger sum would be a good satisfaction in regard to the circumstance of time;" "and so, if 1 am bound in twenty pounds to pay you ten pounds at Westminster and you request me to pay you five pounds at the day, at York, and you will accept it in full satis- faction for the whole ten pounds, is it a good satisfaction?" It was held in God- dard V. O'Brien, 9 Q. B. Div. 37: "A., being indebted to B. in 12.^ pounds 7s. and 9d. for goods sold and delivered, gave B. a check (negotiable, I suppose) for 100 pounds, payable on demand, which B. accepted in satisfaction, — was a good satisfaction." HuDDLESTON, B., in Goddard v. O'Brien, supra, approved the language of the opin^ ion in Sibree v. Tripp, 15 Mees. & W. 26: "That a negotiable security may operate, if so given and taken, in satisfaction of a debt of a greater amount: the circum- stance of negotiability making it in fact a different thing, and more advantageous, than the original debt, which was not ne- gotiable." It was held in Bull v. Bull, 43 (?onn. 4.55: " And, aUhougii the claim is a money demajid, liquidated, and not doubt- ful, and it cannot be satisfied with a smaller sum of money, yet, if any other personal property is received in satisfac- tion, it will be good, no matter what the value." And it was held, in Cumber v. Wane, supra, that a creditor can never bind himself by simple agreement to ac- cept a smaller sum in lieu of an ascertained debt of a larger amount, such agreement being nudum pactum, but, if there be any benefit, or even any legal po.ssibility of bene- fit, to the creditor thrown in, that addi- tional weight will turn the scale, and ren- der the consideration sufficient to support the agreement. It was held in Le Page v. DOING WHAT ONE IS BOUND TO DO. 2G7 McCrea, 1 Wend. 10 1, uiul in Boyd v. Hitchcock, 20 Johns. 7(J, tliat "Kivinj? fur- tlior Rocurity for part of a doht, or other Kpcurity, tlioiish for a loss nam than tlie debt, and acceptance of it in full of all de- mands, make a valid accord and satisfac- ti(jn ; " that, " if a debtor j^ives his creditor a note indorsed by a third party for a less Kiun tlian the debt, (no matter how much less,) but in full satisfaction of the rlebt, and it is received as such, the transaction constitutes a good accord and satisfac- tion." Varney v. Conery, (Me.) 1 Atl. Hep. 6S;3. And so it has been held " vi-here. by mode or time of part payment, difft-rent tlian tiiat i)rovided for in the contract, a uew bfiH'titisorniay bcconfeired, or a bur- tlen imposed, a new consideration arises on t of the transaction, and gives validity to the agreement of the creditor." Rose v. Hall, L'6 Conn. 392. And so "payment of less than the whole debt, if made before it Is due, or at a different place from that stipulated, if received in full, is a good sat- isfaction." .lones V. P.ullitt, 2 Litt. (Kv.) 4'); liicketts v. Hall, 2 Bush, 249; Smith v. Brown, 3 Hawks. ,5S0; Jones v. Perkins, 29 Mi.ss. 139; Schweider v. Lang, 29 Minn. 254, 12 N. W. Rep. 33. In Watson v. P:ili- ott, 57 N. H. 511-513, it was held: "It is enough that something substantial which one party is not bound by law to do is done by him, or something whicli he has a right to do ho abstains from doing, at the request of the other party, is held a good satisfaction. " It has been held in a n amber of cases that, if a note be surrendered by the payee to the maker, the whole claim is dis- charged and no action can afterwards be maintained on such instrument for the un- paid balance. Ellsworth v. Fogg, 35 Vt. 355; Kent v. Reynolds, S Hun, 559. It has been held that a partial payment made to another, though at the creditor's instance and request, is a good discharge of the whole debt. Harper v. Graham, 20 Ohio, 106. "The reason of the rule is that the debtor in such case has done something- more than he was originally bound to do, or, at least, something different. It may be more, or it may be less, as a matter of fact." It was held by the supreme court of Pcnnsvlvania in Bank v. Huston. 11 Wkly. Notes Cas. 3S9, (February 13, 1SS2:) The decided advantage which a creditor acquires by the receipt of a negotiable note for a part of his debt, as by the in- creased facilities of recovering upon it, the presumption of a consideration for it, the ease of disposing of it in market, etc., was held to furnish ample reason why it should be a valid discharge of a larger account or open claim unnegotiable. It has been held that a payment in advance of the time, if agreed to, is a full satisfaction for a larger claim not yet due. Brooks v. White, 2 Mete. ( Mass. )2S3; Bowker v. Childs.3 Allen, 434. In some states, notably Maine and Georgia, the legislature, in order to avoid the harshness of the rule under consid- eration, have, by statute, changed the law upon that subject, by providing: "No action can be maintained upon a demand which has been canceled by the receipt of any sum of money less than the amount legally due thereon, or for any good and vaiualjle consideration, however small." Citing Weymouth v. Babcock, 42 Me. 42. And so in Gray v. Barton, 55 N. Y. 08, where a debt of $S20 upon book-account was satisfied by the payment of one dollar by calling the balance a "gift, "though the balance was nrannan,5 Johns. 208-272; or as it is called in Kellogg v. Richards, 14 Wend. 110, "technical and nejt very well supported by reason;" or, as maybe more practically stated, a rule that "a bar of gold worth $100 will discharge a debt ot $500, while 400 gold dollars in current coin will not." SeenotetoGoddard v. O'Brien, supra, in 21 Airer. Law Reg. 640. 041. The state of the law upon this subject, under the modification of later decisions, both in England and in this ci)uiitry, would seem to be asoxpressed in Goddard v. O'Brien, supra: "The doctrine in Cum- ber v. Wane, is no doubt very much quali- fied bySibree v. Tripp, and I cannot find it better stated than in 1 Smith, Lead. Cas. (7th Ed.).595: 'Thegeneraldoctrinein Cum- ber V. Wane, and thereason of all theexcep- tions and distinctions which have been in- grafted on it, may perhaps be summed up as follows, viz. : That a creditor cannot bind himself by a simjjle agreement to accept a smaller sum in lieu of an ascertained debt of largeramount.such an agreement being jindnm pnctuni. But, if there be any bene- fit, or even any legal possibility of benefit, to the creditor thrown in, that additional weight will turn the scale, ami render the consideration sufficient to support the agreement.' " Bull v. Bull, 43 (?onn. 455; Fisher v. May, 2 Bibb, 449; Reed v. Bnrt- lett,19 Pick. 273; Bank v. Geary, 5 Pet. 99- 114; Le Page v. McCrea, 1 Wend. 164; Boyd V. Hitchcock. 20 Johns. 70; Brooks V.White, 2 Mete. (Mass.) 2S3; Jones v. Per- kins, 29 Miss. 139-141; Hall v. Smith, 15 Iowa, 584; Babcock v. Hawkins, 23 Vt. 501. In the case at bar. the defendants gave their promissory notes upon time for one- half the debt they owed plaintiff, and also gave plaintiff a chattel mortgage on the stock, fixtures, and other personal proper- ty of the defendants, under an agreement with plaintiff to accept the same in full satisfaction and discharge of said indebt- edness. Defendants paid the notes as they became due. and plaintiff then discharged the mortgage. Under the cases above cited, and upon iirincii)le, this new agree- ment was sujiporttHl l)y a sufficient con- sideration to make it a valid agreement, and tliis agreement was, by the parties, substituted in place of the former. The consiileration of the uew agreement was 26S CONSIDE RATION. that the plaintiff, in place of an open book-account for goods «old, got the de- fcTidants' promissory notes, probably ne- gotiable in form, signed by defendants, tiius savina: the plaintiff perhaps trouble or expense of proving their account, and got security upon all the defendants' personal property for the payment of the sum specified in the notes, where be- fore they had no security. It was some trouble 'at least, and perhaps some ex- ipense, to the defendants to execute and \deliver the security, and they deprived :hemselves of the legal ownership, or of Luy exemptions, or the power of dispos- ing of this property, and gave the plaintiff such ownership, as against the defend- ants, and the claims thereto of defend- ants' creditors, if there were any. It seems to me, upon principle, and the de- cisions of this state, (save perhaps Keeler V. .Salisbury, 33 N. Y. 653, and Platts v. Walrath, Lalor, Supp. 59, which I will notice further on,) and of quite all of the oth<>r states, the transactions between the plaintiff and tlie defendants constitute a bar to this action. All that is necessary to produce satisfaction of the former agreement is a sufficient consideration to support the sul)stituted agreement. The doctrine is fully sustained in the opinion of J udge Andrews, in Allison v.Abendroth, lOS N. Y. 470, 15 N. E. Rep. 606, from which I quote: "But it is held that, where there is an independent consideration, or the creditor receives any benefit, or is put in a better position, or one from which there may be legal possibility of benefit to which he was not entitled, except for the agreement, then the agreement is not nudum piictum, and the doctrine of the common law, to which we have adverted, has no application." Upon this distinc- tion the cases I'est, which hold that the acceptance by the creditor in discharge of the debt of a different thing from that contracted to be paid, although of much less pecuniary value or amount, is a good satisfaction, as. for example, a negotiable instrument binding the debtor and a third person for a smaller sum. Curlewis v. Clark, 3 Exch. 375. Following the same principle, it is held that, when the debtor enters into a new contract with the cred- itor to do something which he was not bound to do by the original contract, the new contract is a good accord and sati.s- faction, if so agreed. The case of accept- ing the sole liabilitj' of one of two joint det)tors or copartners, in satisfaction of the joint or copartnership debt, is an iilu.s- trati(jn. This is held to be a good satis- faction, because the sole liability of one of two debtors "maybe more beneficial than the joint liability of both, either in respect of tlie solvency of the parties, or the con- venience of the remedy." Thompson v. Percival, 5 Rarn. & Adol. 925. In perfect accord with this principle is the recent case in this Court of Luddington v. Bell,77 N. Y. 13S, in which it was held that the accept- ance by a creditor of the individual note of one'of the members of a copartnership after dissolution, for a portion of the co- pa rtnfrship debt, was a good considera tion for the creditor's agreement to discharge the maker from further liability. Pardee V. Wood, 8 Hun. 584; Douglass v. White, 3 Barb. Ch. 621-624. Notwithstanding these later and decisive authorities, the plaintiff contends that the giving of the defend- ants' notes, with the chattel mortgage se- curity and the payment, was an insuffi- cient consideration to support the new or substituted agreement, and cites, as au- thority for such contention, the cases of Platts V. Walrath, Lalor, Supp. .59, and Keeler v. Salisbury, 33 N. Y. 648. Platts v. Walrath arose in justice court, and the debt in controversy was put forth as a set-off. The remarks of the judge in the former case were quite obiter, for there were various subjects in dispute upon the trial, and from which the justice might have reached the conclusion that he did. The judge, in the opinion relied upon, says: "Looking at the loose and second- ary character of the evidence as stated in the return, it was, perhaps, a question of fact whether any mortgage at all was given, or at least, whether, if given, it was not in terms a mere collateral security for the large note. " " Even the mortgage was left to parol proof. Did it refer to, and profess to be a security for, the note of .11,500, or that sum less the fifty dollars agreed to be thrown off?" etc. There is so much confusion and uncer- tainty in the case that it was not thought advisable to publish the case in the regu- lar series of Reports. The case of Keeler v. Salisbury, supra, is not to be regarded as an authority upon this question, or as approving the case of Platts v. Walrath, supra. In the case of Keeler v. Salisbury, the debtor's wife had joined in the mort- gage given by her husband, the debtor, to effect the compromise, thus releasing her inchoate right of dower. The court held that fact constituted a suflicient consider- ation to support the new agreement, though the court, in the course of the opinion, remarked that it had been held that the debtor's mortgage would not be sufficient, and referred to Platts v. Wal- rath. But the court did not otherwise in- dicate any approval of that case, and there was no occasion to do so, for, as be- fore stated, the court put its decision up- on the fact that the wife had joined in the mortgage. In view of the peculiar facts in these two cases, and the numerous de- cisions of this and other courts hereinbe- foi-e referred to, I do not regard them as authorities against the defendants' con- tention that the plaintiff's action for the balance of the original debt is barred by reason of the accord and satisfaction, and tlie judgment must be reversed, with costs. All concur. {, )> EIILE V. JUDSON. (24 Wend. 97.) Supreme Court of New York. May, 1840. This was an action of assumpsit, tried at the Madison circuit in September, 1838, before the Hon. Philo Gridley, one of the circuit judges. The action was by the plaintiff as the hold- er of a note payable to Elislia Swift, or bear- er, for the sum of $100, transferred after ma- turity. The defence set up was want of con- sideration. The defendant had been in negotiation with one James Blatherwicli for tlie purchase of a farm, but not agreeing as to the price and terms of payment, abandoned the negotiation. Elisha Swift then treated, with Blalhorwick for the purchase of the. farm on his own account, and induced Blath^ erwick to agree to accept from him a less sum. and also to reduce the amount of the- cash payment to be made on the conveyance, of the property. Swift told Blatherwicli that he thought he should take the farm. The agreement, however, was by parol. In ^his state of JJifijaegotiation, Judson, the defendant To^ve up his sent to h is becoming t he pu r- hich Blathorwic k had The latter assent- would PAST CONSIDERATIOX. 269 in this cause; irgaiuTa Chaser u geifto accept from him "eu ib tne proposal, provided Judson give him his note for $100, to pay him for his time and troulile in negotiating the purchase. Judson accordingly gave the note in question, and became the purchaser of the farm. Upon this state of facts, the defendant moved for a nonsuit, which was denied by the circuit judge, who held that this was the case of an (executed consideration, the payee of the note liad been put to trouble, and had by his ad- dress induced Blatherwick to reduce his de- mands for the farm, which was an act bene- ficial to the defendant, upon which a promise to pay could be sustained; that no actual re- (luest from Judson to Swift to render tlie serv- ices performed was necessary to be shewn — that the law would imply a request. The jury, under the direction of the judge, found a verdict for the plaintiff, which the defend- ant cow moves to set aside. J. A. Spencer, for plaintiff. B. Davis Noxon, for defendant. BRONSON, J. The note was given on a past or executed consideration. It was to compensate Swift for what he had done in negotiating for the farm, and obtaining the offer of better terms than Blatherwick had proposed to accept when the defendant Avas in treaty for the purchase. I am unable to see how this makes out a good consideration for the promise. Swift had not acted for the de- fendant, but for himself. The defendant had relinquished all idea of purchasing the farm before Swift commenced treating for it; and Swift neither acted at the defendant's request, nor with any view to his benetit: and beyond this, Swift had accomplished nothing, in a legal point of view. If a verbal contract had been completed, it would have been void under the statute of frauds. But he had not even made a void contract, if such an expres.sion may be tolerated. He had only got an offer of terms from Blatherwick, and had told liim he thought he should take the farm. The owner was under no obligation, not even hon- orary, to sell upon tho.so term.s, or to give Swift a preference over any other person, on whatever terms he might ultimately conclude to part with his property. Services voluntarily rendered, though they may be beneficial to another, impose no legal obligation upon the party benefited. Bartholo- mew v. Jackson, 20 Johns. 28. The serv- ices must be rendered upon request (Dunbar V. Williams, 10 Johns. 2.7J); and in counting upon a past consideration, a request must, in general, be alleged (Comstock v. Smith, 7 Johns. 87; Parker v. Crane, G Wend. 647). It it not necessary that there should be direct evidence of a request. This, like most other facts, may be established by presumptive evi- dence; and the beneficial nature of the serv- ices, though not enough when standing alone, may be very important in a chain of circum- stances tending to establish the presumption. 1 Saund. 2G4, note 1; Oatfleld v. Waring, 14 Johns. ISS. See, also. Doty v. Wilson, Id. 378. But here the services were not beneficial to the defendant; and besides, we see that they were not and could not have been ren- dered upon request. Swift was not acting for the defendant in the negotiation with Blath- erwick, but for himself. We are referred to cases where it has been said that a moral obligation is a sufficient consideration to support an express promise. Stewart v. Eden, 2 Caines, 150; Doty v. Wil- son, 14 Johns. 378; Lee v. Muggeridge, 5 Taunt. 37. But this rule must be taken with some quahfications. The moral obligation to pay a debt barred by the statute of limita- tions, or an insolvent's discharge, or to pay a debt contracted during infancy or coverture, and the like, will be a good consideration for an express promise. But a merely moral or conscientious obligation, unconnected with any prior legal or equitable claim, is not enough. 3 Bos. & P. 240, note; Smith v. Ware, 13 Johns. 257; Lawes' PI. Assump. 54; 10 Johns. 283, note. But here the defendant was under no obligation of any kind to Swift. Nothing had been done at his request, or for his benefit. What Swift had done in negotiat- ing for the farm was no more beneficial to the defendant, than it was to every other man in the state who might wish to buy a farm. The plaintiff has often failed upon an ex- press promise, in much stronger cases than this. I will only refer to two or three. In Hunt V. Bate, Dyer, 272. the plaintiff had, witliout request, become bail for the defend- ant's servant who was imprisoned, to the end that he might go about his master's business; and the defendant afterwards promised to in- demnify the plaintiff. After verdict upon this 270 CONSIDERATION. promise, the judgment was arrested, because, as tlie court said, "there is no consideration wherefore the defendant should be charged for the debt of liis servant, imless the master had first promised to discliarge the plaintiff before the enlargement and mainprize made of his servant, for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own bead." In Frot>r V. Hardenbergh, 5 Johns. 272, the plain- tiff had, without request, made valuable Im- provements upon the defendant's land, ^nd the defendant afterwards promised to pay for those improvements; but the promise was held to be a nudum pactum, and judgment was rendered for the defendant. The case of Smith V. Ware, 13 Johns. 257, was also upon an express promise, and is equally decisive against maintaining IJiis action. New trial granted. PAST CONSIDERATION. 271 *V POOL, T. HORNER et aL 1 i/ ^ (20 Ati. 1036, G4 Md. 131.) ' Court of Appeals of Maryland. Jane 24, 18S5. Appeal from Baltimore city court. Assumpsit by Henry Pool asainst Albert N. Horner and another, executorw of Alex- ander H. Horner. Tliere was a judgment for defendants, and plaintiff appeals. .\rgued before Alvey. C. J., and Stone, MiLLEU, Robinson, Ritchie, and Bryan, JJ. Thomas M. Murray, for appellant. IV. A. Uummoud and J. J. Wade, for appel- lees. BRYAN, J. The statement filed as a bill of particulars alleges that there was an agreement between the plaintiff below and the testator of defendants that, for certain v aluable ..'onside r^^'""^ V^^ said testator would buy a house and lot for plaintiff, and permit him to occupy it, and, if plaintiff could dhtain a larger price than the said testatbr paid for it, that he would pay to the plaintiff what might be ob- tained for it, over and above the priceorig- inally paid for it. The consideration on the part of the plaintiff was that he fjave a note for $150, because of an old debt for fl25 which he owed the testator, and that he agreed to pay him annually the inter- est on the purchase money of the house and lot, and all taxes, insurance, and ground-rent thereon, and agreed to keep the house in good repair. The plaintiff paid the note, and all interest due on it, and performed all the other stipulations of his agreement. The house and lot cost $],4G5, and were sold, at the desire and re- quest of the plaintiff, for the sum of f 1,700 by the testator, who received the purchase money, and thereupon agreed to pay the plaintiff the sum of $2o5, and afterwards, u y va r ious occasions, promised to pay the same." ine coi>tracf thus alleged was i of Hie (JUrchase of an interest in land, for the sale of it under certain circumstances, and for the paj'ment to the plaintiff of a por- tion of the price received bj' the owner. Being b y Pnrnl i '^ ^/^rn^a fnlly « 7itliir. XliB iouri ji section of the statute of frauds, as m ucfi so as that set up in White v. Coombs, 27 Md. 4S'J. The plaintiff could not have maintained an action on this contract while it was executory, but the testator's express promise to pay, after it was exe- cuted, introduced a new feature into the transaction. It is stated, in the notes to Osborne v. Rogers, 1 Wms. Saund. l!04c, as a settled rule, "that a past consider.ition Is not sullicient to support a subsequent promise, unless there was a request of the party, express or implied, at the time of performing the consideration; but. \\:lm :e liicrjeL^ssLUij. an exj^ress rcqucst^at .tliejtlme. \t wonldj^.Jn MnT-ases.lje sufligicut to.bup- pdrl; a subsequent promise." This doc- TiTTie seems to have been held uniformly ever since the case of Lampleigb v. Brath- wait, decided in the reign of James I., and reported in 1 Smith, Lead. (as. 222. The \ case is thus stated : The defendant, having \ feloniously slain one Patrick Mahume, re- \ quired the plaintiff to endeavor to ob- \ tain a pardon for him from the king, and | the plaintiff journeyed and labored, at his j own charges, and by every means in hi.s | power, to effect the desired object, and the i defendant afterwards, and in consideration , of the premises, promised to give the plain- tiff £100. It was held that, although the consideration was passed and gone before the promise was made, yet, inasmuch as the consideration was moved by the pre- vious suit or reqnest of the party, the promise was binding, and capable of sus- taining an action. And, in another case, the plaintiff brought his action upon a promise made by the defendant to pay the plaintiff £20, in con.sideration that the plaintiff, at the instance of the defendant, had taken to wife the cousin of the de- fendant. It was held that the action wag maiutainable, alth(mgh the marriage was executed and past before the undertaking and promise were made, because the marriage ensued at the request of the de- fendant. Hunt V. Bate, 3 Dj-er, 272^. So, it seems to be clear that the payment of the note for $150 by the plaintiff, at the request of the testator, and the perform- ance of the other considerations by him, are sufficient to support the promise made by the testator to pay the .5235. Some of the testimony offered by the plaintiff did not conform with exactness to the bill of particulars; but the greater portion of it tended to prove the facts therein stated. It was error in the court to exclude the whole of it. Carroll's Lessee v. Manufact- uring Co., 11 Md. 399. Judgment re- versed, and new trial awarded. 272 CONSIDERATION. 1 y BOOTHE V. FITZPATRICK. V (36 Vt. 6S1.) Snpreme Court of Vermont. Rutland. Term, 1864. 1% \ V Feb. Book account. The auditor reported that some time prior to the last o! Au- gust, ISGO, the defendant's bull was im- pounded bj' one Matthew Fox in Chitten- den ; that said bull by some means es- caped from the pound and got into the I)laintiff's pasture in Pittsford, about the 1st of September, 1860, and was kept by the plaintiff from that time until about the 20th of May following, when the de- fendant took him away. Tlie plaintiff did not know who was owner of the animal, when it came into his pasture as above stated, but he mtide frequent inquiries in order to ascertain its owner. In the lat- ter pari of November, 1S60, the plaintiff having ascertained that the defendant was the owner of said bull, sent word to the defendant that he, the plaintiff, had the defendant's bull; butitdid not appear that the defendant got the word at that time. Some time after this, but at what time did not dcfinitelj' appear, the plain- tiff met the defendant In Pittsford, and described the bull in his possession to the defendant, who thereupon said it was his, and that he would pay him, (the plain- tiff) for keeping; but also said to the plaintiff that Fox, who had impounded the bull, should pay for it. Sometime after the interview last referred to, the defend- ant went to the plaintiff in Pittsford and saw the bull, told the plaintiff that it was his, and that he would pay the plaintiff for keeping, but did not drive him away at that time. The plaintiff kept the bull through the winter, and at a reasonable time in the spring turned him out to past- ure, when becoming troublesome, the plaintiff went to see the defendant in re- gard to taking him away. The de- *682 fendant on this occasion *informed the plaintiff that he would come and take him away the next day, and did, and at the same time offered the plaintiff his note for the amount charged for keeping. Tlie plaintiff did not accept the note, but told the defendant that he might leavethe amount with one Duncklee for the plain- tiff, to which the defendant assented; but the defendant did not leave the amount with Duncklee, and the plaintiff's claim for keeping the bull remains unpaid. The amount charged was reasonable,' and no more than a fair compensation for the keeping. The plaintiff ascertained who the owner of the animal was, but at what time did not certainly appear, the plaintiff adver- tised said bull as an estray by posting up three notices in the town of Pittsford, where the bull was taken up; but no no- tice was published in a newspaper, al- though three were published in tiie county, nor was any copy left at the town clci-k's ofhce. Said bull was worth, when taken up and advertised as above stated, the Bum of twelvedollars. The plaintiff made no entry of his claim on his book of ac- counts, nor did it appear that the plain- tiff kept such book. On the auditor's report,— the court. March Term, 1863, Kellogg, J., presiding, rendered a judgment in favor of the plain- tiff. Exceptions by the defendant. Edpcrton & Paul, for the plaintiff. Reuben R. Thrall, for the defendant. PECK, J. Thedefendant'scounsel, with- out distinction between the part of the account that accrued befoi-e the defend- ant's promise to pay, and that which ac- crued after, insists that the promise was made upon a past consideration and not binding, in as much as there was never any previously existing legal obligation. As to all that part of the account that ac- crued after the defendant made his first promise to pay for the keeping, the plain- tiff's right to recover is clear, as the sub- sequent keeping must be taken to have been upon the faith of that promise. When the defendant promised to take the bull away and jjay for the keeping, the parties must have understood that the defendant *was to pay for the *683 keeping till he should take the bull away. As to the prior portion of the keeping, the promise was upon a past consideration, and the question is wheth- er this is a legal objection to a recovery. It is urged that without an express prom- ise there was at most but a moral obliga- tion, and that a moral obligation is not sufficient to give a legally binding force to an express promise, except in cases where there had once existed a legal obligation, as in case of a debt barred by the statute of limitations or by a discharge in bank- ruptcy. This is so said in some reported cases, but no case is cited in which the question involved and decided establishes this as a general proposition. That it is not so, is evident from the cases in which it is decided that a minor making a contract may bind himself by a promise made after arriving at the age of majority without a new consideration. In such case there is no legal obligation previously existing, and yet the promise is binding. The same may be said of another class of cases where the consideration has enured to the benefit of the defendant, but without any request on his part, in which it is held that a subsequent promise is equivalent to a previous request, and creates a legal liability, where none existed before for want of a request. If the consideration, even without request, moves directly from the plaintiff to the defendant and enures directly to the defendant's benefit, the promise is binding, though made upon a past consideration. In this case there was such consideration. The plaintiff parted with what was of ralue to him, and it enured directly to the benefit of the defendant. A promise upon such past consideration is binding. This principle is fundamental and elementary, and is sustained by abundant authority. But for the defendant's promise the plaintiff could not recover for want of a request on the part of the defendant, as one can not thus be made debtor without his as- sent. The promise of the defendant obvi- ates this objection, it l)eing equivalent to a previous request. The cases cited by the defendant's counsel to shoAV tiiat a moral obligation is not a good consider- PAST CONSIDERATION. 273 ation for an express promise, except where there bad been a previous lepal oblij?a- tion, are not in conflict with tlioso prin- ciples. It Is true there are some ex- •684 pressions used *by judges that taken literally without reference to the case then under consideration, would seem to bo irreconcilable with this view. The language in these cases must be un- derstood in reference to the cases in which the language is used. They wore cases where the defendant had received no con- elderatiou beneficial to himself; not like this, where the defendant has received a valuable pecuniary heuefit at the expense of the plaintiff. HOPK. BBL. CAS. CONT.— 18 There would be another objection to a recovery in this case in the absence of a promise by the defendant, arising from the provision of the statute prohibiting a party who takes up an estray, from re- covering for keeping in case he neglects to advertise as the statute requires. But it was competent for the defendant to waive this objection, as he has done by an ex- press promise to pay. There is no reason why he may not as well waive this de- fence by a promise to pay, as the defence of tlie statute of limitations or the de- fence of infancy. The plaintiff ia entitled to recover his whole account. Judgment affirmed. 274 * CONSIDERATION. EAR1.E V. OLIVER,! (2 Exch. 71.) ourt of Exchequer of Pleas. Feb. 7. 1848. Mr. Maynard, for plaintiff. Mr. Atherton. contra, PARKE, B. This case was very folly and ably ar!?ued before my Brothers ALDERSON, ROLFE, PLATT, and myself, at the sittings after last Micliaelmas term. Two questions arose.— the first, as to the sufficiency of tbe first count on general demurrer; the second, whether the pleadings to the second coimt, which was money paid, disclosed a sufficient defence. The first count was, in substance, on a promise in writing by the defendant to the plaintiff, in consideration of the defend- ant's liability, to repay the plaintiff a debt which he had contracted with a banking com- pany as surety for the defendant before the bankruptcy; and the promise was made, be- fore the certificate, to repay the debt when the plaintiff should have paid it, and also the interest on that debt from the time it should be paid by the plaintiff to the time of repay- ing by the defendant. There was a plea stating that the promise was before certifi- cate, and a special demurrer to the plea, on the ground that it merely stated what was admitted before in the declaration. That is true, and the consequence is, that the question is simply whether the first count is good on demurrer. So far as relates to the objection that the promise was made before the certificate, the case of Kirkpatrick v. Tattersall, 13 Mees. & W. 766, is an answer. It may be worth whUe to state that a similar point had been previously decided by Lord Chief Justice Eyre in the case of Roberts v. Morgan, 2 Esp. 736. The next objection was that, although an existing debt which would be barred by a certificate, and which was due by the bank- rupt to the plaintiff, was a good consideration to support a promise to pay it, a mere liabil- ity to repay the plaintiff when he should have first paid the debt for the defendant was not. This goes a step further than the cases above cited, but seems to us to fall within the same principle. This liability, like the debt, would be discharged by the certificate; and it seems to us as just and reasonable for the bankrupt, after the fiat, to waive the benefit of his certificate with respect to it, as it is to waive it with respect to a debt; and, if the debt so discharged is a good consideration for a promise to pay it, the liability which Is discharged in the same Tay is a good consideration for a promise to continue liable. Two further objections were made, on the supposition that this liability is to be put on the same footing as a debt, and is a good 1 Irrelevant parts omitted. consideration: First, that this debt or linbll- Ity, in a course of being barred by a certifi- cate, cannot be treated as the executed con- sideration for a promise which a debt or lia- bility, not barred by a certificate, would not support, and that by the course of moilern decisions, beginning with the case of Hopkins V. Logan, 5 Mees. & W. 241, and ending with Roscorla v. Thomas, 3 Q. B. 234, a debt canuot be laid as an executed consideration for any promise which the law would not imply from it; and that a promise to pay whenever the party was able was never implied. The second was that a promise to pay interest could not be supported by the consideration, and was as objectionable as if the promise had been to do any collateral thing. We think that these objections ought not to pre- vail. The strict rule of the common law was no doubt departed from by Lord Mansfield in Hawkes v. Sanders, Cowp. 290, and Atkins V. Hill, Id. 2S8. The principle of the rule laid down by Lord Mansfield is that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common-law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then botmd by the law to perform it. There is a very able note to the case of "Wennall v. Ab- ney, 3 Bos. & P. 252, explaining this at length. The instances given to illustrate the principle are, amongst others, the case of a debt barred by certificate and by the statute of limitations; and the rule in these instances has been so constantly followed that there can be no doubt that it is to be considered • as the established law. Debts so barred are unquestionably a sufficient consideration for every promise, absolute or unqualified, quali- fied or conditional, to pay them. Promises to pay a debt simply, or by installments, or when the party is able, are all equally sup- ported by the past consideration; and, when the debts have become payable instanter, may be given in evidence in the ordinary declaration in indebitatus assumpsit. So. when the debt is not already barred by the statute, a promise to pay the creditor will revive it, and make it a new debt, and a promise to an executor to pay a debt due to a testator creates a new debt to him. But it does not follow that, though a promise re- vives the debt in such cases, any of those debts will be sufficient consideration to sup- port a promise to do a collateral thing, as to supply goods, or perform work and labour; and .so indeed it was held in this court in the case of Reeves v. Hearne, 1 Moes. & W. 323. In such case it is but an accord unexecuted, and no action will lie for not executing it. We think, therefore, that the conditional promise to pay the debt would be good in this case, and supported by the original con- sideration; and a conditional promise, which. PAST CONSIDERATION. 275 whon nbsolute, wiU be only a renewal of the original liability, and to the same extent, is equally good and supported by the original consideration. The next objection relau'.s lo the interest. It seems to us to bt> supported bv the same consideration as the original promise. The proral.se is to pay the debt conditionally; and, It the debt be unpaid, that the defendant wiU pay Interest for It We are of opinion, there- fore, that the first count Is good. CAPACITY OF PARTIES. / UNITED STATES v. TINGEY. (5 Pet. 115.) Snpreme Court of the United States. Jan. Term. 1831. Atty. Gen. Berrien, and Dist. Atty. Swann, for plaintiffs. Coxe & Jones, contra. STORY, J. This is a writ of error to the circuit court of the District of Columbia, sit- ting at Washington. The original action was brought by the United States upon a bond executed by Lewis Deblois, and by Thomas Tingey and others as his sureties, on the 1st of May, 1S12, in the penal sum of $10,000, upon condition that if Deblois should regu- larly account, when thereto required, for all public moneys received by him, from time to time, and for all public property com- mitted to his care, with such person or per- sons, officer or officers of the government of the United States as should be duly author- ized to settle and adjust his accounts, and sliould, moreover, pay over, as might be di- rected, any sum or sums that might be found due to the United States upon any such settle- ment or settlements, and should also faith- fully discharge, in every respect, the trust reposed in him, then the obligation to be void, &c. In point of fact, Deblois was at the time a purser in the navy, though not so stated in the condition; and there is an indorsement upon the bond, which is averred in one of the counts of the declaration to have been contemporaneous with the execu- tion of the bond, which recognizes his char- acter as purser, and limits his responsibility as such; and the bond was unquestionably taken, as the pleadings show, to secure his fidelity in office as purser. The declaration contains two counts: one in the common form for the penalty of the bond; and a second setting forth the bond, condition, and indorsement, and averring the character of Deblois, as purser, his receipt of public moneys, and the refusal to account, &c., in the usual form. Several pleas were pleaded, upon some of which issues In fact were joined. To the third, fourth, fifth, sixth, and eighth pleas, the United States demurred, and judgment up- on the demurrers was given for the defend- ant in the circuit court; and the object of the present writ of error Is to revise that judgment. There is no statute of the United States expressly defining the duties of pursers in the navy. What those duties are, except so far as they are incidentally disclosed in pub- lic laws, cannot be judicially known to this court. If they are regulated by the usages and customs of the navy, or by the official orders of the navy department, they proper- ly constitute matters of averment, and should be spread upon the pleadings. It may be gathered, however, from some of the public acts regulating the departments, that a purser, or as the real name originally was, a burser, is a disbursing officer, and liable to account to the government as such. The act of the 3d of INlarch, 1809, c. 95, § 3 (2 Stat. 530), provided that, exclusively of the pur- veyor of public supplies, paymasters of the army, pursers of the navy, &c., no other per- manent agents should be appointed either for the purpose of making contracts, or for the purchase of supplies, or for the disburse- ment in any other manner of moneys for the use of the military establishment, or of the navy of the United States; but such as should be appointed by the president of the United States with the advice and consent of the senate. And the next section (sec- tion 4) of the same act provided that every such agent and every purser of the navy should give bond, with one or more sureties, in such sums as the president of the United States should direct, for the faithful dis- charge of the trust reposed in him; and that, whenever practicable, they should keep the public money in their hands In some incor- porated bank, to be designated by the presi- dent, and should make monthly returns tO' the treasury of the moneys received and ex- pended during the preceding month, and of the unexpended balance in their hands. This act abundantly shows that pursers are contemplated as disbursing officers and re- ceivers of public money, liable to account to the government therefor. The act of the 30th of March, 1812, c. 47 (2 Stat. 699), made some alterations in the existing law, and required that the pursers in the navy should be appointed by the president, by and with the advice and consent of the senate; and that from and after the 1st day of May then next, no person should act in the character of purser who should not have been so nom- inated and appointed, except pursers on dis- tant service, &c.; and that every purser, be- fore entering upon the duties of his office, should give bond with two or more sufficient sureties, in the penalty of $10,000, condition- ed faithfully to perform all the duties of purser in the navy of the United States. This act, so far as respects pursers giving bond, and the imports of the condition, beings in pari materia, operates as a virtual repeal of the former act. The subsequent legisla- tion of congress is unimportant, as it does not apply to the present case. It is obvious that the condition of the present bond is not in the terms prescribed by the act of 1812, c. 47, and it is not limited to the duties or disbursements of Deblois, as purser, but creates a liability for all moneys received by him, and for all public property committed to his care, whether officially as purser, or otherwise. Upon this posture of the case a question has been made and elaborately argued at the bar, how far a bond voluntarily given to the United States, and not prescribed by law, is a valid instrument, binding upon the par- THE GOVERNMENT. 277 ties In point of law; In other words, wheth- er the United Slates have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously pro- vided for by some law. Upon full consider- ation of this subject, we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general rip:ht of sovereign- ty; and the United States being a body poli- tic, may, witliiu the sphere of the constitu- tional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. This principle has been already act- ed on by this court, in the case of Dugan v. U. S., 3 Wheat. 172; and it is not perceived that there lies any solid objection to it. To adopt a different principle, would be to deny tlie ordinary rights of sovereignty, not mere- ly to the genenil government, but even to the state governments within the proper sphere of their own powers, unless brought into operation by express legislation. A doc- trine, to such an extent, is not known to this court as ever having been sanctioned by any judicial tribunal. We have stated the general principle only, without attempting to enumerate the limita- tions and exceptions which may arise from tlie distribution of powers in our govern- ment, or from the operation of other pro- visions in our constitution and laws. We confine ourselves, in the application of the principle, to the facts of the present case, leaving other cases to be disposed of as they may arise; and we hold that a voluntary bond, taken by authority of the proper of- ficers of the treasurj- department, to whom the disbursement of public moneys is Intrust- ed, to secure the fidelity in official duties of a receiver or an agent for disbtirsery of public moneys, is a binding contract between him and his sureties and the United States. although such bond may not be prescribed or required by any positive law. The right to take such a bond is, in our view, an in- cident to the duties belonging to such a de- partment; and the United States having a political capacity to take it, we see no objec- tion to Its validity in a moral or a legal view. Having disposed of this question, which lies at the very threshold of the cause, and meets us upon the face of the second count In the declaration, it remains to consider i whether any one of the pleas demurred, to constitutes a good bar to the action. Without adverting to others, which are open to serious objections on account of the looseness and generality of their texture, we are of opinion that the fifth plea is a com- plete answer to the action. That plea, after setting forth at large the act of 1812 respect- ing pursers, proceeds to state that, before the execution of the bond, the navy depart- ment di 1 cause the same to be prepared and transmitted to Deblois, and did require and demand of him that the same, with the con- dition, should be executed by him with suf- ficient sureties, before he should be permit- ted to remain in the office of purser, or to receive the pay and emoluments attached to the office of purser; that the condition of the bond is variant and wholly different from the condition required by the said act of congress, and varies and enlarges the du- ties and responsibilities of Deblois and his sureties; and "that the same was under color and pretence of the said act of con- gi'ess, and under color of office required and extorted from the said Deblois, and from the defendant, as one of his sureties, against the form, force, and effect of the said stat- ute, by the then secretary of the navy." The substance of this plea is that the bond, with the above condition, variant from that prescribed by law was under color of office extorted from Deblois and his sureties, con- trary to the statute, by the then secretary- of the navy, as the condition of his remaining in the office of purser, and receiving its emoluments. There is no pretence, then, to say that it was a bond voluntarily given, or that though different from the form pre- scribed by the statute, it was received and executed without objection. It was demand- ed of the party, upon the peril of losing his office; it was extorted under color of office against the requisitions of the statute. It was plainly, then, an illegal bond; for no of- ficer of the government has a right, by color of his office, to require from any subordi- nate officer, as a condition of holding office, that he should execute a bond with a con- dition different from that prescribed by law. That would be, not to execute, but to super- sede the requisitions of law. It would be very different where such a bond was by mistake or otherwise voluntarily substituted by the parties for the st.ntute bond, without any coercion or extortion by color of office. The judgment of the circuit court Is affirm- ed. CAPACITY OF PARTIES. v. '^ \ WHITNEY et aL v (14 Mass. DUTCH 457.) Supreme Court of Massachusetts, March Term, 1817. et *1. (^ V SuffolS.\ Assumpsit on a promissory note; made ay the defendants to the pLiintiEEs, on the ISth of December, ISll, for 847 dollars 76 cents. The defendant Dutch was defaxilted. The defendant Green pleaded 1st. The general issue: 21y. That he was under age at the time when the note was made.— The plain- tiffs replied, that after he came of age, he agreed to and confirmed the promise; to which he rejoined, that he did not so agree; on which also issue was joined. It appeared at the trial, which was had at the last November term in this county before Jackson, J„ that Dutch & Green, while the latter was under age, had agreed to be part- ners, and as such, had often dealt with the plaintiffs. The note in question was signed by Dutch, using the firm and style of the house of Dutch & Green, at a time when the latter was under age. In March, 1816, after Green arrived at full age, the plaintiffs applied to him for payment of the note; when he acknowledged that it was due, and promised that on his return to Eastport, where he resided, he would en- deavour to procure the money and send it to the plaintiffs: saying at the same time that it was hard for him to pay it twice; he al- leging, as it was understood, that the sup- posed partnerehip had been, a long time be- fore, dissolved; and that Dutch had taken the whole stock, and agreed to pay all the debts of the company. The counsel for the defendant contended, that the implied power of one partner to bind the other, was void in this case; as Green was a minor at the time of making the note, and therefore could not empower any agent or attorney to bind him in any manner; that the note was therefore void as to him. and not merely voidable; and so the supposed promise could not be confirmed or ratified by the subsequent promise or agreement, which was proved, as above-mentioned. The judge, intending to reserve the ques- tion for the consideration of the whole com't, directed a verdict for the plaintiffs on both Issues, which was returned accordingly. If the court should be of opinion that the defendant Green was, under these circum- stances, liable to the plaintiffs for the amount due on this note, the verdict was to stand, and judgment entered accordingly; otherwise the verdict was to be set aside, and a verdict entered for the defendants. Mr. Thurston, for plaintiffs. Mr. Leland, for defendants. PARKER, C. J. The question presented to the court in this case, and which has been argued is, whether the issue on the part of the plaintiffs is maintained by the evidence reported. The first objection taken by the defend- ants' counsel is, that no express promise is proved, after the coming of age of the de- fendant—By the authorities, a mere acknowl- edgment of the debt, such as would take a case out of the statute of limitations, is not a ratification of a contract made during mi- nority. The distinction is undoubtedly well taken. The reason is, that a mere acknowl- edgment avoids the presumption of payment, which is created by the statute of limitations; whereas the contract of an infant may al- ways, except in certain cases sufficiently known, be voided by him by plea, whether he acknowledges the debt or not: and some positive act or declaration on his part, is necessarj'^ to defeat his power of avoiding it. But the terms of ratification need not be such as to import a direct promise to pay. All that is necessary is, that he expressly agrees to ratify his contract; not by doubtful acts, such as payment of a part of the money due, or the interest; but by words, oral or in writing, which import a recognition and a confirmation of his promise. In thepresent case, the defendant acknowl- edged that the rnoney" was due, when calle d upon to pay the demand; and promised that he wouldljendeavour to procure the money upon his return home, and senri it tn the plaintiff. This was sufficient to satisfy the jury, that he assented to and ratified the original promise: for it would be a distortion of language, to suppose that he meant only to endeavour to persuade Dutch, to pay the money; and if he succeeded, that he, Green, would send it to the plaintiff. But the other point made in the defence is more difficult, and presents a question new to us all. This is, that the note, being signed by Dutch for Green, was void in regard to Green; because he was not capable of com- municating authority to Dutch, to contract for him; and that being void, it is not the subject of a subsequent ratification. No such question appears to have occurred in our courts, nor in those of England, or of the neighbouring states. Partnerships have not been uncommon between adults and in- fants; and simple contracts, signed by one for both, undoubtedly have often been made. It is unfavourable to the principle, contend- ed for by the counsel for Green, that no such case has been found: for this silence of the books authorizes a presumption, that no dis- tinction has been recognized between acts of this kind done by the infant himself, and those done for him by another. We must however examine the principles, by which the contracts of infants are governed; and see if, by any analogy to settled cases, the present defence can be maintained. It is admitted generally, that a- contract made by an infant, although not for neces- saries, Is only voidable: and that an express infa:nts. 279 adoption of It, after he comes of age, will make It valid from its date. Nor does the law require that he shall be sued, as upon the uew promise; but gives life aud validity to the old oue, after it is thus assented to. — But it is urged, that this doctrine apphes only to those contracts, which are made by the in- fant personally; and that the delegation of power by him to another of full age, to act lor him, is utterly void; and that no contract, made in virtue of such delegation, can sub- sist, so as to be made good by subsequent agreement or ratitication. If we coniine ourselves to the letter of the authorities, it would seem that this doctrine is correct; for we find that, in the distinc- tions made in the books between the void and voidable acts of an infant, a power of at- torney is generally selected, by way of ex- ample, as an act absolutely void: unless it be made to enable the attorney to do some act for the benefit of the infant; such as a power of attorney to receive seizin, In order to complete his title to an estate. The books aie not very clear upon this sub- ject All of them admit a distinction between void and voidable acts; and yet disagree with respect to the acts to be classed vmder either of those heads. One result however, in which they all appear to agree, is stated by Lord Mansfield in the case of Zouch v. Parsons. 3 Burrows, 1794, viz. that whenever the act done may be for the benefit of the infant, it shall not be considered void: but that he shall have his election, when he comes of age, to aflirm or avoid it; and this Is the only clear and definite proposition, which can be extracted from the authorities. The application of this principle is not how- ever free from difliculty: for when a note or other simple contract is made by an infant himself, it may be made good by his assent, without any inquiry whether it was for his benefit, or to his prejudice. For if he had made a bad bargain in a purchase of goods, and given his promissory note for the price; and when he came of age, had agreed to pay the note, he would be bound by this agreement, although he might have been ruined by the purchase. Perhaps it may be assumed as a principle, that all simple contracts by infants, which are not founded on an illegxil consid- eration, are strictly not void, but only voida- ble; and may be made good by ratification. They remain a legal substratum for a future assent, untU avoided by the infant: and if, instead of avoiding, he confirm them, when he has a legal capacity to make a contract, they are. In all respects, like contracts made by adults. With respect to contracts under seal also, they are In legal force as contracts, until they are avoided by plea. Whether they can, in all cases, as It is clear they can in some, such as leases, be ratified, so as to prevent the operation of a plea of infancy, except by deed, need not now be decided. A deed of land, by an infant having the title, would un- doubtedly convey a seizin; and the grantee would hold his title under it until the Infant, or some one under him, should by entry or action avoid it Perhaps it cannot be contended, against the current of authorities, tliat an act done by another for an infant, which act must neces- sai-ily be done by letter of attorney under seal, is not absolutely void: although no sat- isfactory reason can be assigned for such a position. But as this is a point of strict law, somewhat incongruous with the general rules affecting the contracts of infants; It is not necessaiy nor reasonable to draw inferences, which may be repugnant to the principles of justice, wiiich ought to regulate contracts be- tween man and man. The object of the law, in disabling infants from binding themselves, is to prevent them being imposed upon and injured by the crafty and designing. This object is in no degree fnistrated by giving full operation to their contracts, If, after having revised them at mature age, they shall voluntirily and delib- erately ratify and confirm them. It is enough, that they may shake off promises and other contracts, made upon valuable consideration; If they see fit to do it, when called upon to perform them. To give them still anotlier opportunity to retract, after they have been induced, by love of justice, and a sense of reputation, to make valid what was before defective, will be to invite them to break their word and violate their engagements. If it be true that all simple contracts, made by infants, are only voidable, the inquiry, in this case should be, whether the facts stated furnish an exception to this general rule; or whether the contract now sued is in any sense different from a simple contract The only ground for the supposed excep- tion is, tliat the note declared on was not signed by the infant himself; but by Dutch, claiming authority to sign his name as a co- partner. If the authority required a letter of attorney under seal, the exception would be supported by the authorities, which have been alluded to. B ut it is well known that copartners may , ana generally do undertake to bind each otB- \r, without any express autnonty wnalever. Ihdeed the authority to do so, results from the nature and legal qualities of copartner- ship. And without any such union of inter- ests, one man may have authority to bind an- other, by note or bill of exchange, by oral, or even by implied authority. The case of a deed therefore Is entirely out of the question: so that the defendant does not bring himself within the letter of the authorities; and cer- tainly not within the reason, on which they .are founded. Then upon principle, what dif- I ference can there be, between the ratification \of a contract made by the Infant himself, and I pne made by another acting under a parole authority from him? And why may not the 2S0 CAPACITY OF PARTIES. ratification apply to the authority, as weU as to the contract made under it? It may be said, that minors may be ex- posed, if they may delegate power over their property or credit to another. But they will be as much exposed, by the power to make such contracts themselves; and more, for the person delegated will generally have more experience in business than the minor. And it is a sufficient security against the danger from both these sources, that infants cannot be prejudiced: for the contracts are In neither case binding, unless, when arrived at legal competency, they voluntarily and deliberately give effect to the contract so made. And in such case justice requires, that they should be compelled to perform them. Upon these principles, we are satisfied with the verdict of the jury; and are confident that no principles of law or justice are op- posed by confirming it Judgment on the verdict. INFANTS. 281 /,\ BORDENTOWN TP. t. WALLACE et aLi ^ f\j\ (11 Atl. 207, 50 N. J. Law, 13.) ' ''d^'3 JSuijreme Court of New Jersey. Nov. 16, 1887. On demurrer to defendauts' pleas. Tills action is brousht on a joint and sev- eral bond given by the defendants to the plaintiff, in the penal sum of $2,.jriod of time as the said bastard child shall or may be chargeable to the said town- ship, then the said obligation is to be void, otherwise to be and remain in full force and virtue." The declaration Is in the usual form. After praying oyer, and setting out the bond, the defendants plead jointly six several pleas: (1) Non est factum. (2) Infancy of William Wallace. (3) Duress of imprisonment of Wil- liam Wallace. (4) Bond given before and without hearing of two justices, and when held before one justice of the peace untn the bond was given. (5) Bond given to comply with order of filiation when no notice was given of such order. (6) That no order of filiation was made by two justices of the peace, according to law. The plaintiff joins is.sne on the first plea, and files a demurrer to each of the five suc- ceeding pleas. Hutchinson & Belden, for plaintiffs. Gil- bert & Atkinson, for defendants. SCUDDER, J. The defense of the infancy of one of the defendants contained in the joint plea of all is informal and bad. Infancy is a personal privilege of which no one can take advantage but himself. Voorhees v. Walt, 15 N. J. Law, 343; Patterson v. Llppin- cott, 47 N. J. Law, 457, 1 Atl. 506. It Is also a nile of pleading that personal defenses, as coverture, infancy, etc., shall be pleaded separately; that only when the de- fense is In its nature joint may several de- fendants join in the same plea; and that where a plea is bad in part, it is bad in toto; if, therefore, two or more defendants join in a plea which is sufficient but for one, and not for the other, the plea is bad as to both. 1 Chit. PI. 565-507. But It must not be con- ceded that in a proper case, under our statute for the maintenance of bastard children, the father of a bastard child can escape his obli- gation, or liability to Indemnify the township or municipal body, for the support of .such child, if it become chargeable, by a plea of infancy, however formally it may be pleaded. Co. Litt. 172d, gives the rule of an infant's general liability as follows: "An infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards; but if he bind him- self in an obligation or other writing with a penalty, for the payment of any of these, that obligation shall not bind him." He adds: "And generally whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth It without suit at law." Lord Mansfield quotes and applies this last expre.s- sion in Zouch v. Parsons, 3 Burrows, 1794, and adds: "If an infant does a right act, which he ought to do, which he was com- pellable to do, it shall bind him." This general principle has been used in bastardy cases to bind infants, under statutes passed to pro- tect the public against the support of bastard children that may become chargeable. People V. Moores, 4 Denio, 518; McCall v. Parker, 13 Mete. (Mass.) 372. In this latter case, in an action on a bond given under the statute, for appearance, etc., it was decided that the infancy of the accused is no defense, either for him or his suretj-. Prof. Parsons, in 1 Pars. Cont 334, says that there is no principle of law that binds infants when they enter into contracts which owe their validity, and the means of their enforcement, to statutes, because in all statutes containing general words there is an implied or virtual exception In favor of persons whose liability the com- mon law recognizes. He proceeds to Ulus- trato this position by referring to cases where Infants have been held exempt from liabilitj- to pay calls to shares in incorporated compa- nies, wherein It has been held that there are implied exceptions, in favor of infants, in statutes containing general words. But the wgrda-4a^urbasiaJdy_stjLtiita^ t h n rppiitpd_fntJTP f of a b ri'i tar d chil d who mnv La soffle"c ases b e an infant, tn crjyp f\ hnnd f^r sec un^, are not so ge neraL aa_tQ,p'^niDt -in- "Ta Sts from its operation. They are fairly within the words of the act, and its pui-pose to protect the public against those who would Impose the support of their illegitimate oCf- siiring on others. Tyler on Infancy, c. 9, p. 139, cites the above principle of liability in its application to bastardy cases with ap- proval. This second plea Is defective in form, bemg a joint plea of the infancy of one defendant; it is also bad In substance, as in proceedings under the bastardy act the Infancy of the reputed father Is no defen.se when he Is le- gally chargeable m exoneration of the public 1 Irrelevant parts omitted. 282 i, ",1 CAPACITY OF PARTIES. RYDER V. WOMBWELL. (L. R. 4 Exch. 32.) Court of Exchequer. Dec. 3, 1S68, Appeal from the decision of the court of exchequer malviug absolute so much of a rule as called on the plaintiff to show cause why a verdict found for him for £40 lus. should not be reduced by £15 15s.; and discharging the residue of it, which called upon him to show cause why a nonsuit should not be en- tered; or a new ti'ial had, on the ground of the improper rejection of evidence. L. R. 3 Exch. 90. The declaration was for money payable for goods sold and delivered. Plea, iufaucy; rep- Ucation, necessaries. Issue thereon. At the trial before Kelly, C. B., at the Lon- don sittings after Trinity term, 1SG7, it ap- peared that the plaintiff sought to recover for the following (among other) articles of jewelry supplied by him to the defendant, a minor: First, a pair of crystal, ruby, and diamond solitaires, £25; and, secondly, a sil- ver gilt antique chased goblet, engi'aved with an inscription, £15 15s. The defendant was the younger son of a de- ceased baronet of large property in Yorkshire, and during his minority had an income of about £500 per annum, and on attaining his majority he came into £20,000. He had no residence of his own, but occasionally stayed at Limmer's Hotel, Bond street, London. His home was his mother's house in London, and Ms brother's in Yorkshire, at each of which he was boarded and lodged gratuitous- ly. He pursued no trade or profession, he moved in the highest society, and was in the liabit of riding races for his friends, amongst others for the Marquis of Hastings, at whose liouse he was a frequent visitor, and for whom the goblet was intended, as the plain- tiff knew when he supplied it, as a present. The solitaires were ornamental studs or but- tons worn by gentlemen as fastenings for the wristbands of the shirt. They were made of crystals set in gold,' and ornamented with diamonds representing a horse-shoe in which the nails were represented by rubies. Evidence was offered on the part of the defendant that at the time of the purchase of the solitaires he had purchased similar ar- ticles of jewelry to a large amount from other tradesmen, which rendered any further sup- ply by the plaintiff unnecessary; but, as it was proved that the plaintiff was not aware of this fact, the lord chief baron rejected the evidence. The jury, in answer to the questions left to them by the learned judge, found that the solitaires and the goblet were necessaries suitable to the estate and condition in life of the defendant, and a verdict was accord- ingly entered for the plaintiff for £40 15s., being the price of the solitaires and goblet, with leave to move to enter a nonsuit if the court should be of opinion that there was no evidence for the jury that either article was a necessary; or to reduce the damages by the price either of the solitaires or the gob- let if the com-t should be of opinion that there was evidence for the jury in respect of one or other of these articles only. A rule nisi was obtained accordingly, and also for a new trial, on the ground of the improper re- jection of the evidence offered on the part of the defendant, that the defendant was, at the time he purchased the solitaires of the plaintiff, supplied already, although not to the knowledge of the plaintiff, with similar articles. This rule was afterwards made ab- solute to reduce the verdict by £15 15s., the price of the goblet, and discharged as to the residue; the majority of the court being of opinion that the verdict of the jury as to the solitaires ought not to be disturbed, and that the evidence offered to prove that the defend- ant, when the solitaires were supplied, was already sufficiently supplied with articles of a similar description, was, under the circum- stances, properly rejected. June 20, 18G8. Mr. Bulwer, Q. C, (Mr. Mayd, with him), for defendant, contended: Fii-st, that a nonsuit ought to be entered, as there was no evidence proper to be left to the jury that the solitaires were necessai'ies. In. addition to the cases referred to in the court below, he cited Rainsford v. Fenwick, Carter, 215; Greene v. Chester, 2 Rolle, 144; Ive v. Chester, Cro. Jac. 560; and Wittingham v. Hill, Cro. Jac. 494;— to show that in former times, when a more precise and accurate foi-m of pleading prevailed, the facts relied upon as showing that the goods supplied were necessaries were stated upon the record, and the court were enabled to give judgment whether in point of law the replication was sufficient. But when it was established (see Coke, Ent. "Debt," 8, p. 125, and Huggins v. Wiseman, Carth. 110) that the plaintiff might reply in the general form now in use, it be- came necessary that the facts which used formerly to be stated on the record should be found by a jury, and then the court had to determine, as formerly, whether the facts found did, in point of law, furnish an answer to the plea. He contended, secondly, that the evidence was improperly rejected; and' on this point referred to the following addi- tional authorities: Story v. Perry, 4 Car. & P. 526; Cook v. Deaton, 3 Car. & P. 114; Ford V. Fothergill, 1 Esp. 211; Steedman V. Rose, Car & M. 422; Berrolles v. Ramsay, Holt, N. P. 77; Brayshaw v. Eaton, 7 Scott, 183 J Foster v. Redgrave, Queen's Bench, Feb. 9, 1867; Chit. Cont. (6th Ed.) pp. 136, 137, 140; Leake, Cont. p. 233. Popham Pike (Mr Coleridge. Q. C, with him), for the plaintiff, contended that the question whether the solitaires were neces- saries was rightly left to the jury, and that they had come to a right conclusion. He cited. In addition to the authorities quoted INPANTS. 283 In the court below, Hands v. Slaney, 8 Term R. 578. With regard to the rejection of evidence, there was no case similar to the present. In all of those cited in order to show that tlie evidence was adniissil)le, though not brought to the plaiutifrs knowledge, there were pecul- iarities. Either they were cases of husband and wife, or else of minors, in respect of whom there was a presumption that they were already supplied with all necessaries by reason or their living In their father's houses, or of their being in statu pupiliari. Again, in many of the cases cited tlie trades- men had peculiar facilities for knowing the actual position of the minor. Putting aside particular and exceptional eases, there seem- ed to bo no difference between a minor being actually supplied with goods similar to those for the price of which he was being sued, and his being in the receipt of an income suf- (icient to buy them if he chose. Yet the amount of an infant's Income had been held immaterial. Brayshaw v. Eaton, 7 Scott, 183. Why should the amount of his income, when he had turned his money into goods, be material? Mr. Bulwer, Q. C, In reply. Cur. adv. vult Argued before WILLES, BYLES, BLACK- BURN, MONTAGUE, SMITH, and LUSH, JJ. WILLES, .T. In this case the pLaintiff re- plied to a plea of infancy that the goods were necessaries suitable to the degree, estate and condition of the defendant, and on this issue was taiven. On the trial before the lord chief baron it w as pro ve d that the degree, e state and oondition of the defendant ^va§__^^atEe was tlii> y(^^\ necessaries? Chit. Cont. 141a, note 2; 1 Bibb, Pars. Cont 296; Beeler v. Yoimg, 1 .019; 1 Am. Lead. Cas. 248. The court, In the instruction, merely in- formed the jury that if the trip was prudent and proper, and that the money was for her benefit, then' the jury must determine wheth- er such advances of money were for neces- saries. There was not a particle of proof to enable the jury to determine as to the pro- priety or impropriety, the prudence or im- prudence, of the trip, or that the advance- ment of the money was for the benefit of ap- pellant Even If there had been such proof, the in- struction was wrong. The court should have defined necessaries in some manner. Black- stone defines necessaries to be "necessary meat, drink, apparel, physic," and says that an infant may bind himself to pay "for his good teaching and instruction, whereby he may profit hiinself afterwards." The arti- cles furnished, or money advanced, must be actually necessary, in the particular case, for use, not mere omainent; for substantial good, not mere pleasure; and must belong to the class which the law generally pro- nounces necessary for infants. The courts have generally excluded from the term "necessaries" horses, saddles, bridles, pistols, liquors, fiddles, chronometers, etc. It has been held, however, that if rid- ing on horseback was necessaiy to the health of the infant, the rule was different. We have been referred to no case, and, after a thorough examination, have found none, in which it has been held that mon- eys advanced for traveling expenses, under the circumstances of this case, were neces- saries. The court should have instructed the j^ry as to the classes and general description of articles for which an infant is bound to pay. Then the jury must determine whether they fall within any of the classes, and whether they are actually necessary and suitable to the estate and condition of the infant It may be proper to advert to another prin- ciple. The infant had a guardian, who had charge and management of her estate, which consisted entirely of realty. It was the duty of the guardian to superintend the educa- tion and nurture of his ward, and apply to such purpose, first, the rents and profits of the estate, and next the interest upon the ward's money. This is the positive com- mand of the statute, and he was liable upon his bond for noncompliance. He was the judge of what were necessaries for his ward, if he acted in good faith. A third party had no right to intervene and usurp the rights and duties of the gnard- lian. Even if the money paid was, in some sense, for the infant's benefit, and the trip was prudent and proper, yet, if the guardian, in good faith, and in the exercise of a wise discretion, and with reference to the best . interests of his ward, supplied her wants and 1 contributed means suitable to her age and station in life, and in view of her estate, then the infant would not be liable for the money as necessaries. Beeler v. Young, sup- ra; Kline v. L'Amoureux, 2 Paige, 419; Guth- rie V. Murphy, 4 Watts, 80; Wailing v. Tall, 9 Johns. 141. We express no opinion as to the weight of the evidence, for the reason that there must be a new trial. The judgment Is reversed for the errors indicated, and the cause remanded. Judgment reversed. p^ JOHNSON T. LINTjg. j-) [^j (6 Watts & S. SO.) 1^1 Supreme Court of Pennsylvania. Sept., 1843. Error to cx)urt of common pleas, Washington county. Edward L. Lines and William W. Scott, trading under the firm of Lines & Scott, against David Ecltert, administrator of John Johnson. This was an action of assumpsit. The dec- laration contained the common money counts, to which the defendant pleaded that the in- testate was an infant at the time of the sxip- posed promises; and the plaintiffs replied that the goods provided were necessaries. The intestate, whose infancy was admitted, contracted a debt with the plaintiffs for goods sold and monies advanced, as appeared by their account, between the 9th October, 183G, and the 30th January, 1S38, to the amount of $1,003.27. The items consisted in a great measure of fancy articles, which a wasteful boy, uncontrolled by his parents or guardian, would be apt to purchase. The infant had a guardian; but it did not appear that he exer- cised any care or control over him, or that he liad been consulted in relation to his dealings. The defendant asked the court to charge "that the plaintiffs had no right to deal with the minor, even for necessaries, unless the guardian refused to furnish him with them." The court charged "that the plaintiffs had no right to deal with the deceased unless by the permission, express or implied, of the guard- ian; or unless the guardian refused to furnish necessaries to his ward." The defend;int also prayed direction "that if the plalntiffis were justified in dealing with him, their bill is so exorbitant that the plaintiffs themselves could not have considered them necessaries, and therefore are not entitled to recover:" to which the court responded, that ''what are necessaries is a question of fact mixed with law. It is to be decided by the jury under the direction of the court, and depends on the estate, circumstances and pursuits of the man. The jury will probably think this bill ex- travagant, and that the plaintiffs could not have supposed many of these items necessary. Some of them, they must have known, were not necessary. The plaintiffs cannot recover for what are not necessaries." The defendant excepted. Verdict and judgment for the plaintiffs. Mr. Marsh, for plaintiff In error, cited 2 Serg. & R. 44; 2 E. C. L. GOO. Mr. M'Keunon, for defendants in error, cited 7 Watts, 344; 3 Day, 37; 1 Bibb, 519; 7 Watts, 237; 8 Term R. 578; 1 Esp. 212; 3 E. C. L. 33; 5 Esp. 152; 1 Maule & S. 737; 3 Bac. Abr. 593. GIBSON, a T, The case of the plaintiffs below is poor in merits. It appears that they supplied a young spendthrift with goods IXFAXT.S. 287 which they call npcessarles, but which ill de* servo the name. Their account mounts up to more than a thousand dollars, comprising charges for many articles which might be ranked with necessaries when supplied in reason; but not at the rate of twelve coats, sevcntoon vests, and twenty-three pantaloons, in the space of fifteen months and twenty-one days; to say nothing of three Bowie knives, sixteen penknives, eight whips, ten whip-lash- es, thirty-nine handkerchiefs, and five canes, with kid gloves, fur caps, chip hats, and fan- cy bag. to match. Such a bill makes one shudder. Yet the jury found for the plaintiffs almost their whole demand, including sums advanced for pocket-money, and to pay for keeping the minor's horses, which no one would be so hardy as to call necessaries, ilow they could reconcile such a verdict to the dictates of conscience, I know not. They surely could not complacently look upon the ruin of their own sons, brought on by min- istering to their appetites, and stimulating them with the means of gratification. Every father has a deeper stake in these matters than the public mind is accustomed to sup- pose; and it intimately concerns the cause of morality and virtue, that the rule of the com- mon law on the subject be strictly enforced. The minor was at the critical time of life, when habits are formed which make or mar the man— which fit him for a useful life, or send him to an untimely grave; and public policy demands that they who deal with such a customer should do so at their peril. This enormous bill was run up at one store, and what other debts were contracted for supplies elsewhere we know not; but let it not be imagined that the infant's transactions with other dealers did not concern the plaintiffs. "With a view to quantity, and quantity only," said Baron Alderson, in Burghart v. Anger- stein, Car. & P. 700, "you may look at the bills of the other tradesmen by whom the de- fendant was also supplied; for if another tradesman had supplied the defendant with ten coats, he would not then want any more, and any further supply would be unnecessary. If a minor is supplied, no matter from what quarter, with necessaries suitable to his es- tate and degree, a tradesman cannot recover for any other supply made to the minor just after." And the reason for it is a plain one. The rule of law is that no one may deal with a minor. The exception to it is that a stran- ger may supply him with necessaries proper for him, in default of supply by any one else; but his Interference with what Is properly the guardian's business must rest on an actual necessity, of which he must judge, in a meas- ure, at his peril. In Ford v. Fothergill. 1 Esp. 211, Peake. N. P. 299, Lord Kenyon ruled it to be incumbent on the tradesman, before trusting to an appearance of necessity. to inquire whether the minor is provided by his parent or friends. That case may be thought to have been shaken in Dalton v. Gib, 5 288 CAPACITY OF PARTIES. r.ing. N. C. 19S. in which it was held that in- quiiy is not a condition precedent to recov- ery where the goods seem to be necessary from the outward appearance of the infant, though the mother was at hand and might have been questioned; but in Brayshaw v. Eaton, Id. 231, this was explained to mean 1 that, as such an Inquiry is the tradesman's i affair, being a prudential measure for his own I information, the omission of it is not a ground , of non-suit; but that the question is, on the fact put in issue by the pleadings, whether the supply was actually necessary. It is the tradesman's duty to know, therefore, not only that the supphes are unexceptionable in quan- tity and sort, but also that they are actually needed. When he assumes the business of the guardian for purposes of present relief, he is bound to execute it as a prudent guard- ian would, and consequently, to make himself acquainted with the ward's necessities and circumstances. The credit which the negli- gence of the guardian gives to the ward, ceases as his necessities cease; and, as noth- ing further is requisite when these are re- lieved, the exception to the rule is at an end. In this case, the supply of articles which were proper in kind, was excessive in quan- tity. I impute no intentional wrong to the plaintiffs, for they dealt with the intestate, as others may have done, evidently supposing him to be sui juris; but I certainly do blame the jury for finding nearly the whole demand, after it had been conceded that he was an in- fant That the charge, though not palpably wrong in the abstract, tended to mislead in its ap- plication to the facts, is visible in the verdict it produced. The defendant went to the court for direction that the plaintiffs could not law- fully deal with the infant, even for neces- saries, unless the guardian had refused to furnish them; and had, for response, a direc- tion that "the plaintiffs had no right to deal with the deceased, unless by the permission, express or implied, of the guardian; or un- less the guardian had refused to furnish nec- essaries for his ward." Thi-s very significant addition to the principle assumed in the pray- er was meant to indicate a liberty to deal by permission beyond the bounds of necessaries, or it meant nothing. It indicated that an au- thority to deal with a minor in a way to charge him personally, emanates from his guardian's permission, which is paramount, or at least equal, to the authority so to deal with him, that emanates from his necessities. The jury would naturally so understand it. And this was predicated in reference to the question before them, whether the ward's estate could be subjected to payment for luxuries. They might readily understand, therefore, that the guardian's permission to run up this bill would charge the ward's es- tate with it, independently of its propriety. If that was not the drift of the direction, it is not easy to see why anj'thing was said about permission at all. In a case of doubtful pro- priety, I can readily understand how the guardian's sanction, or that of a relative, might justify a supply beyond the limits of strict necessity, which a dealer might furnish bona fide on the credit of the ward; but, though the guardian might subject himself to payment of a grossly improvident bill, by a permission amounting to an order, his con- nivance at an improper supply by a trades- man, would not subject the ward to payment of it Indeed, it has been said (3 Wil.s. Bacon, 595, In marg.) to have been several times de- cided that where credit has been given to the parent or guardian, the creditor has no re- course to the infant. The guardian is set over the ward for the very purpose of preventing him from making such a bill; and his deser- tion of his trust would not help the case of one who had dealt with the ward mala fide. As, then, the plaintiffs were bound to know that the guardian abused his trust in allow- ing the infant to run up this biU, they can recover no more of it than was proper to re- lieve the ward's necessities. This notion that the guardian's permission might legitimate the demand, may have had a misguiding In- fluence on the jury; for a passive acquaintance with the transaction which the law would presume from his duty to have an eye on the doings of the ward, would be a construct- ive permission; or it might be implied from the fact that he had left the ward to shift for himself. Again, the defendant prayed direction, "thsK it the plaintiffs were justifiable in dealing with the ward, the bill is so exorbitant that the plaintiffs themselves could not have con- sidered them (the goods) necessaries; and that they are therefore not entitled to recover;" In answer to which, the court charged that; "What are necessaries, is a question of fact mixed with law. It is to be decided by the jury under the direction of the court, and de- pends on the estate, circumstances and pm*- suits of the minor. The jury wiU probably think this bill extravagant, and that the plain- tiffs could not have supposed many of the Items necessary. Some of them, they must have known, were not necessary. The plain- tiffs cannot recover for what were not neces- saries." Not a word in this in response to the prayer for direction as to the effect of the plaintiffs' consciousness that the supply was extravagant, though consciousness would affect them with mala fides, and deprive them at once of whatever merit they might other- wise pretend to have from the guardian's im- plied sanction. The judge said truly that what are necessaries is a question mixed of fact and law; but ho did not say, as he might and perhaps ought to have done, that an over-supply of goods otherwise proper ceases to be a supply of necessaries as to the excess. The jury were indeed left to say what were necessaries; but rather as regards the sort than the quantity, in respect to which the INFANTS. 289 effect of excess was overlooked throuj^hout. Had it been properly impressed, the jui-y could not have found more than a fourth part of the bill. To them doubtless belonj^s the question of extravagance; but where the sup- ply has been so grossly profuse as to shock liOPK.SEL,CAS.CONT.— 19 the sense, it is the business of the judge to say so as matter of law, and charge that there can be no recovery for more than was abso- lutely necessary. Judgment reverbed, and a venire facia-s de novo awarded. CAPACITY OF PARTIES. STAFFORD v. ROOF. (9 Cow. 626.) 'Qating this as a sufficient act of disaffirm- ance in case they then had the right to dis- affirm, and it is not material whether it was or not, for the bringing of the action, which was sufficient, immediately foUowed, there elapsed between the execution of the deed and its disaffirmance tw-entj^-five years and four months. The disability of infancy on tne part of the infant grantor ceased April 21, 1863. and as the real estate was owned by her at tha time of her marriage, her disabil- ity from coverture, so far as affected her right to reclaim, hold and control the property ceased August 1, 1866, when the General Stat- utes (1866) went into effect; so that for four years and eight months before she died she was free of the disabiliry of infancy, and for one year four and a half months, she was practically free of the disability of coverture. During the latter period, at least, she was capable in law to disaffirm the deed, if she had the right to do so, and if she was re- quired to exercise the right witliin a reason- able time after her disability ceased, the time was running for that period. The youngest of the plaintiffs became of age January 29, 1881, so tliat even if the period of minoi'ity of plaintiffs were to be excluded (and we doubt if it should be) there is to be added at least two years and two months to the time which had elapsed when the grantor died, making the time three years and over six months. The main question in the case is, must one who, while a minor, has conveyed real estate, di.saffirm the conveyance within a reasonable time after minority ceases, or be barred. Of the decided cases the majority are to the ef- fect that he need not, (where there are no circumstances other than lapse of time and silence,) and that he is not barred by mere acquiescence for a shorter period than that prescribed in the statute of limitations. The following are the principal cases so decided: Vaughan v. Parr, 20 Ark. 600; Boody v. :Mc- Kenney, 23 Me. 517; Davis v. Dudley, 70 Me. 236; Praut v. Wiley, 28 Mich. 164; Cause V. Norcum, 12 Mo. 550; Norcum v. Gaty, 19 Mo. 69; Peterson v. Laik, 24 Md. 541; Baker V. Kennett, 54 Mo. 82; Huth v. Dock Co., 56 Md. 206; Hale v. Gerrish, 8 N. H. 374; Jack- son V. Carpenter, 11 Johns. 538; Voorhies y. Voorhies, 24 Barb. 150; INIc^.Iurray v. Mc- Murray, 66 N. Y. 175; Lessee of Drake v. Ramsey, 5 Oliio, 252; Cresinger v. Lessee of Welsh, 15 Ohio, 156; Irvine v. Irvine, 9 Wall. 617; Ordinary v. Wherry, 1 Bailey, 28. On the other hand, there are many decisions to the effect that mere acquiescence beyond a reasonable time after the minority ceases bars the right to disaffirm, of which cases the fol- lowing are the principal ones: Holmes v. Blogg, 8 Taunt. 35; Railway Co. v. Black, 8 Exch. ISO; Thomasson v. Boyd, 13 Ala. 419; Delano v. Blake, 11 Wend. 85; Bostwick v. Atkins, 3 N. Y. 53; Chapin v. Shafer, 49 N. Y. 407; Jones v. Butler, 30 Barb. 041; Kline V. Beebe, 6 Conn. 494; Wallace's Lessee v. Lewis, 4 Har. 80; Hastings v. Dollarhide, 24 Cal. 195; Scott v. Buchannan, 11 Humph. 467; Hartman v. Kendall, 4 Ind. 403; Bige- low V. Kinney, 3 Vt. 353; Richardson v. Bo- right, 9 Vt. 308; Harris v. Cannon, 6 Ga. 382; Cole V. Pennoyer, 14 111. 158; Black v. Hills, 36 III. 376; Robinson v. Weeks, 50 Me. 102; Little V. Duncan, 9 Rich. Law, 55. The rule holding certain contracts of an infant voidable (among them his conveyances of real estate) and giving him the right to affirm or disaffirm after he arrives at ma- jority, is for the protection of minors, and so that they shall not be prejudiced by acts done or obligations incurred at a time when they are not capable of determining what is for their interest to do. For this purpose of pro- tection the law gives them an opportunity', after they have become capable of judging for themselves, to determine whether such acts or obligations are beneficial or prejudicial to them, and whether they will abide by or avoid them. If the right to affirm or disaffirm ex- tends beyond an adequate opportunity to so determine and to act on the result, it ceases to be a measure of protection, and becomes, in the language of the court in Wallace's Les- see V. Lewis, "a dangerous weapon of of- fen.se, and not a defense." For we cannot assent to the reason given in Boody v. Mc- Kenney (the only reason given by any of the cases for the rule that long acquiescence in no proof of ratification) "that by his silent acquiescence he occasions no injury to other persons and secures no benefits or new rights to himself. There is nothing to urge him as a duty to others to act speedily." The existence of such an infirmity in one's title as the right of another at his pleasure to defeat it, is neccs.sarily prejudicial to it. and INFANTS. 293 tlic longer it may continue the more serious the injuiy. SiJi^ a ri^ih^JiLa continual^ men-_ ace to the title. the title is ol lloldiug such a menace over course an injury to the owner of it; one possessing such a right is bound in justice and fairness towards the owner of the title to determine without delay whether he will exercise it. The right of a minor to dis- aflirm on coming of age, lilie the right to disaffirm in any other case, should be exer- cised with some regard to the rights of oth- ers,— with as nmch regard to those rights as is fairly consistent with due protection to the interests of the minor. In every other case of a right to di.saffirm,l the party holding it is required, out of regard' to the rights of those who may be affected by its exercise, to act upon it within a reasonable time. There is no reason for allowing great- er latitude where the right exists because of infancy at the time of making the contract. A reasonable time after majority within which to act is all that is essential to the in- fant's protection. That 10, 15, or 20 years, or such other time as the law may give for bringing an ac'tion. is necessary as a matter c^ protection to him is absurd. The only eirect of giving more than a reasonable time is to enable the mature man, not to correct what he did amiss in his infancy, but to speculate on the events of the future— a con- sequonce entirely foreign to the purpose of the i-ule which is solely protection to the infant. Reason, justice to others, public policy, (whirh is not subserved by cherishing defective ti- tles,) and convenience, require the right of disafiinuance to be acted upon within a rea- sonable time. What is a reasonable time will depend on the circumstances of each par- ticular case, and may be either for the court or for the jury to determine. Where, as in this case, there is mcro delay, with nothing to explain or excase it, or show its necessity, it will be for the court. Cochran v. Toher, 14 Minn. 3S5 (Gil. 2'J3); Derosia v. Ilailroad Co., IS Minn. 1-3.3 (Gil. 119). ^h'-^ y^.'ira ■■^tu n h nlf. the d elay in this case. _Iexcludin£_ the p eriod of p 'nip<^'<^'8 m'""^'^y, '^f*'^^ *^^ limg within which to act had. coqinienced_to run J wa^ primafacie_niore_than^a_rfia50liablo time, and~J>rima faclgllbe_cpnveyance was ratifie^.^ Order reversed. ~ 29i .^ \ CAPACITY OF PARTIES. MANSFIELD v. GORDON. , i/ (10 N. E. 773, 144 Mass. 168.) \>' Supreme Judicial Court of Massachusetts. Suf- folk. Feb. 26, 1SS7. Bill in equity to set aside a mortgage made by one Bnrrell, an insolvent debtor, while a minor. Trial in the superior court upon issues framed for a jurj-, which found that the mortgagor, Burrell, was a minor, under 21 years of age, when he executed the mort- gage; that he did not at the time represent to the defendant that he was 21 years of age; and that neither he nor plaintiff ratified or affirmed said mortgage after Burrell became 21 years of age, or waive the objection of his minority. After further hearing in said court before Barker, J., the bill was dis- missed, and the plaintiff appealed. Other facts appear in the opinion. A Hemenway and A L. Murray, for plain- tiff. J. Willard and J. R. Churchill, for de- fendant DEVEXS, J. The plaintiff by his bUl seeks to relieve the realty of BurreU, an insolvent debtor, of whose estate he is assignee, from the incumbrance of a mortgage thereon con- ditioned for the payment of a note of $1,000. The note and mortgage were executed by Burrell when under age. He is now of age, and was so when the plaintiff was appointed assignee. Since his majority, he has not ratified the note and mortgage, nor is it al- leged that he has done any act in disaffirm- ance thereof. The assignment vests in the assignee not only all the property of the debtor, both real and personal, which he could lawfully have sold, assigned, or con- veyed, including debts due him and the se- curities therefor, but also "all his rights of action for goods or estate, real or personal." "By the right of action mentioned in the statute," it Ls said by Chief Justice Shaw, "the legi.slature intended all valuable rights actually subsis;ting, whether absolute or con- ditional, legal or equitable, which were to be obtained by the aid of any species of ju- dicial process." Gardner v. Hooper, 3 Gray, 404. It is the contention of the plaintiff that, by virtue of this clause, as assignee he is en- titled to exercise the privilege which the in- I /solvent might have exercised on reaching I his majority, and disaffirm this mortgage, I and thus is entitled to a decree relieving the! I estate therefrom. That an individual cred^ itor cannot attach property conveyed by a debtor while a minor, the conveyance of which such debtor might have disaffirmed, and thus avail himself of the infant's privi- lege, is well settled. McCarty v. Murray, 3 Gray, 578; Kendall v. Lawrence, 22 Pick. 540; Kingman v. Perkins, 105 Mass. 111. While the rights of the assignee are not al- ways tested by those of the individual cred- itor, there woulu seem to be no reason why larger rights in an estate conveyed by a minor are obtained by an assignee acting on behalf of all the creditors. The contracts of an infant are voidable only, and not void, and it has often been said that the right to avoid his contracts is a personal privilege of the infant only, not to be availed of by otliers. Nightingale v. Withington, 15 Mass. 272; Chandler v. Simmons, 97 Mass. 508-511; 1 Chit Cont. (11th Ed.) note 6. It is said in Austin V. Charlestown Fem. Sem., 8 Mete. 196-200, by Judge Wilde: "Voidable acts by an infant, or matters of record done or suf- fered by him, can be avoided by none but himself, or his friends in blood, and not by privies in estate, and this right of avoidance is not assignable." Bac. Abr. "Infancy and Age," 1, 6; Whittingham's Case, S Coke, 43. It is said that it is for the benefit of the debtor that the assignee should be allowed to avoid his mortgage, as the assets of the es- tate are thus increased. The ground upon which an infant is allowed to avoid his con- tracts is for personal benefit, and for pro- tection against the improvidence which is the consequence of his youth. He may therefore avoid his contract without return- ing the consideration received, but it is not easy to see why his creditors, or the as- signee as representing them, should have this right. It may well be that the estate of the insolvent has been augmented to that extent by the very sum of money which the minor received. The fact that the infant may re- scind without returning the consideration indicates that the right is strictly a personal privilege; and that, as the rule permitting him to thus avoid his contract is established solely for his protection, so he alone can have the benefit of it. Decree affirmed. r ^\ TUCKER v. MORELAND. ,*)>^ ^ (10 Pet. 58.) W /V^j Supreme Court of the United States. -Jbn' Term, ISotJ. ^^ The case is stated in tlie opinion of the court. Mr. Coxe, for plaintiff. Bradley & Swann, contra. STORY, J. This Is a writ of error to the circuit court for the county of Washington, and District of Columbia. The original action was an ejectment brought by the plaintiff in error against the defendant in error; and both parties claimed the title under Richard N. Barry. At the trial of the cause upon the general issue, it was admitted that Richard N. Barry, being seised in fee of the premises sued for, on the 1st day of December, 1831, executed a deed thereof to Richard Wallach. The deed, after reciting that Barry and one Bing were in- debted to Tucker and Thompson, in the sum of $3,238, for which they had given their promissory note, payable in six months after date, to secure which the convejance was to be made, conveyed the premises to Wallach, in trust, to sell the same in case the debt should remain unpaid ten days after the 1st day of December then next. The same were accordingly sold by Wallach, for default of payment of tlie note, on the 2.3d of February, 1S33, and were bought at the sale by Tucker and Thompson, who received a deed of the same on the 7th of March, of the same year. It was admitted, that after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February, 1S33( when he executed a deed, including tlie same and other iiarcels of land, to liis mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of $1,138.61, which he owed his mother; for the recovery of which she had instituted a suit against him, and of oth- er sums advanced him, a particular account of which had not been kept, and of the fur- ther sum of §o. At the time of the sale of Wallach, the defendant gave public notice of her title to the premises, and she pubhcly claimed the same as her absolute right. The defendant further gave evidence at the trial, to prove tliat at the time of the execution of the deed by Barry to Wallach, he, Barry, was an infant under 21 yeare of age; and, at the time of the execution of the deed to the defendant, he was of the full age of 21 years. Upon this state of the evidence, the coun- sel for the defendant prayed the court to instruct the jury, that if upon the whole evi- dence given as aforesaid to the jury, they should believe the facts to be as stated as aforesaid, then the deed from the said Wal- lach to the plaintiffs, did not convey to the plaintiffs any title which would enable them lis FA NTS. 295 to sustain the action. This Instruction the court gave; and this constitutes the exception now relied on by the plaintiff in error in his first bill of exceptions. Some criticism has been made upon the lan- guage in which this instruction is couched. But, in substance, it raises the question which has been so fully argued at the bar, as to the validity of the plaintiffs' title to recover; if Barry was an infant at the time of the execu- tion of his deed to Wallach. If that deed was originally void, by rea.son of Barry's in- fancy, then the plaintiff, who must recover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and not void, and yet It has been avoided by the subsequent convey- ance to the defendant by Barry; then the same conclusion follows. And these, accord- ingly, are the considerations which are pre- sented under the present instruction. In regard to the point whether the deed of lands by an infant is void or voi. the court held that an acquiescence by the gran- tor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of that con- veyance; that some positive act was neces- sary, evincing his assent to the conveyance. In Curtin v. Batton. 11 Sorg. & R. 311. the court held that, to constitute a confirmation of a conveyance or contract by an infant, after he arrives of age, there must be some distinct act, by whicli he either receives a benefit from the contract after he arrives at age, or does some act of express ratification. There is much good sense in these decisions, and they are indispensable to a just sup- port of the rights of infants according to the common law. Besides, in the present case, as Barry was In possession of the premises during the whole period until the execution of his deed to Mrs. ;Morelaud. there was no evidence to justify the jury in draw- ing any inference of any intentional acquies- cence in the valitlity of the deed to Wallach. The 3d instruction is, for the reasons al- ready stated, unmaintainable. The deed to 2Mrs. Moreland contains a convej'ance of the very land in controversy, with a warranty of the title against all persons claiming under liim, (Barrj',) and a covenant, that he had good right and title to convey the same, and, therefore, is a positive disaffirmance of the former deed. The 4th instruction proceeds upon the sup- position that if the deed to Mrs. Moreland was fraudulent between the parties to it. it was utterly void, and not merely voidable. But it is clear that, between the parties, it would be binding and availaltle; however, as to the persons whom it was intended to defraud, it might bo voidable. Even if it was made for the very purpose of defeating the conveyance to Wallach, and was a mere contrivance for this purpose, it was still an act competent to be done by Barry, and amounted to a disaffirmance of the convey- ance to Wallach. In many cases, the dis- affirmance of a deed made during infancy, is a fraud upon the other party. But this has never been held sufficient to avoid the disaffirmance, for it would otherwise take away the veiy protection which the law in- tends to throw round him, to guard him from the effects of his folly, rashness, and misconduct. In Saunderson v. Marr, 1 H. Bl. 75, it was held that a warrant of attor- ney, given by an infant, although there ap- peared circumstances of fraud on his part, was utterly void, even though the applica- tion was made to the equity side of the court, to set aside a judgment founded on it. So, in Conroe v. Birdsall, 1 Johns. Cas. 127. a bond made by an infant, who declared at the time that he was of age, was held void, notwitlistanding his fraudulent declaration; for the court said that a different decision would endanger all the rights of infants. A similar doctrine was held by the court in Curtin v. Patton, 11 Serg. & R. 309, o^o. In- deed, the same doctrine is to be found af- firmed more than a century and a half ago. in Johnson v. Pie. 1 Lev. 100. 1 Sid. 2.">S; 1 Kebb. 905, 913. See Bac. Abr. "Infancy and Age," H; 2 Kent, Comm. Lect. 31. But what are the facts on which the in- struction relies as pr(X)f of the deed to Mrs. Moreland being fraudulent and void? They are "the relative positions of the parties to said deed, at and previous to its execution:" that is to say. the relation of mother and son, and the fact tliat she had then insti- tuted a suit against him, and arrested him, and held him to bail, as stated In the evi- dence, and "from the circumstances attend- ing the execution of it;" that is to say, that Mrs. Moreland was informed by Barry, be- fore his deed to her, that he had so convey- ed the said property to Wallach, and that subsequently, and with such knowledge, she prevailed on Bariy to execute to her the 3D0 CAPACITY OF PARTIES. same conveyance. Now, certainly, these facts alone could not justly authorize a con- clusion that the conveyance to Mrs. More- land was fraudulent and void; for she might be a bona fide creditor of her son. And the considei-ation averred in that conveyance showed her to be a creditor, if it was truly stated, (and there was no evidence to con- tradict it;) and if she was a creditor, then she had a legal right to sue her son, and there was no fraud in prevailing on him to give a deed to satisfy that debt. It is prob- able that the instruction was designed to cover all the other facts stated in the bill of exceptions, though in its actual terms it does not seem to comprehend them. But if it did, we are of opinion that the jury would not have been justified in inferring that the deed was fraudulent and void. In the first place, the proceedings in the orphans' court may, for aught that appears, have been in good faith, and under an innocent mistake of a year. of the actual age Of Barry. In the next place, ii not. so, still, the mother and the son were not estopped in any other proceed- ing to set up the nonage of BaiTy, whatever might have heen the case as to the parties and property involved in that proceeding. In the next place, there is not the slightest proof that these proceedings had, at the time, any reference to, or intended opera- tion upon, the subsequent deed made to Wal- lach, or that Mrs. Moreland was party to, or assisted in, the negotiations or declarations on which the deed to Wallach was founded Certainly, without some proofs of this sort, it would be going too far to assert that the jury might infer that the deed to Mrs. More- land was fraudulent. Fraud is not presum- ed either as u matter of law or fact, unless under circumstances not faariy susceptible of any other interpretation. The rtb instruction was properly refused by the court, for the plain reason that there was no evidence in the case of any acts or declarations by Mrs. Moreland to the effect therein star/^d. It was. therefore, the com- mon case uf an ir.'itif ction asked upon a mere hycjotbotica' statement, ultrj, the evi- dence. The third bill of exceptions is as follows:^- I "The court having refused the 2d, 3d, 4th, ^ and 5th instructions prayed by the plaintiffs, and the counsel, in opening his case to the jury, contending that the questions present- ed by the said instructions wore open to the consideration of the jury, the counsel for the defendant thereupon prayed the court to in- struct the jury that if, from the evidence so as aforesaid given to the jui-y, and stated in the prayers for the said instructions, they should be of opinion that the said Richard was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach, under whom the plaintiffs claim their title in this case, and that at the time he made his deed as here- inbefore mentioned to the defendant he was of full age, that such last-mentioned deed was a disaffirmance of his preceding deed to him the said Richard Wallach, and that in that case the jury ought to find their ver- dict for the defendant, and that the evidence upon which the 2d, 3d, 4th, and 5th instruc- tions were prayed by the plaintiff as afore- said, which evidence is set forth in the in- structions so prayed, is not competent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds or for any of the reasons set forth in the said prayers, or to authorize them to find a ver- dict for the plaintiff, if they should be of opinion that the said Richard Barry was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach. "Which instruction the court gave as pray- ed, and the counsel for the plaintiff excepted thereto." It is unnecessary to do more than to state, that the bill of exceptiotis is completely dis- posed of by the considerations already men- tioned. It contains no more than the con- verse of the propositions stated in the sec- ond bill of exceptions, and the reassertion of the instruction given by the court in the first bill of exceptions. Upon the whole, it is the opinion of the court that the judgment of the circuit court ought to be affirmed, with costs. INFANTS. 301 HENRY V. ROOT. (33 N. Y. o2G.) Court of Appeals of New York. Sept, 1865. L. J. Burditt, for appellant. E. M. Harris, for respondent. DA\'IES, J. This action was brought to recover tlie amount of a promissory note for $000 made at Fort Des Moines, in the state of Iowa, by the defendant, whereby he prom ised to pay to the plainti.T, for value received, the .said sum of .$G00, with interest at the rate of ten per cent per annum, on or before the l.jth day of April, 1857. The defendant set up in his answer two dis- tinct grounds of defense: First. That the note was given for part of the consideration of certain lots, situated in the town of Logan, in the territory of Nebraska; that the agree- ment for the purchase of said lots was made by the defendant with one Campbell, the agent of the plaintiff, when and whereby the defendant agreed to purchase said lots at and for a price of $700; that he paid in cash $100, and gave said note for the residue of the con- sideration or purchase-money of said lots; that said purchase was the only consideration for the same, and that he relied wholly upon the statements and representations of said Campbell as to the situation and value of said lots. The answer then sets out the represen- tations made, and that the plaintiff's title was good, whereas he had no title to the same, and such repre.sentatious were untrue, and that he was deceived and defrauded thereby; that he, the defendant, never had possession of said lots, and had never sold or conveyed any or either of them. For a second defense, the defendant aver- red that at the time of making and executing the said note, he was an infant under the age of twenty-one years. On the trial the note was produced and read in evidence; and the plaintiff rested. The defendant then offered himself as a witness, and testilied that at the time the note was executed he was not twenty-one years of age, and further testimony to the same effect was offered. The defendant at- tained the age of twenty -one years on the J.'.th of February. 1S57. The witness testi- lied that on the 20th of Januarj', 1857, tlie day after date of the note, he received a con- veyance for said lots of land executed by Campbell as agent of the plaintilT, and that the same was acknowledged the same day. 'I'lie plaintiff then offered the same in evi- dence, and the deed was objected to by the defendant's counsel, on the ground that it was not properly acknowledged nor authenticated; that it was not .shown that the person who executed it had authority from the grantor, and also that it was not under seal, and there- fore void. The court sustained the objection, and the plaintiff excepted. The plaintiff then offered to show by the witness that defendant took possession of the land under this deed, and that on the 19th of May. 1857, defendant conveyed a portion of the land to one Sand- ford B. Terry of Chicago by a deed not under seal, for the consideration of $100. This was objected to by the defendant, on the ground that no title was obtained by the defendant by the paper received by him, and the objec- tion was sustained by the court, and the plaintiff excepted. The witness testified that the consideration of the note was for the con- veyance of real estate. The deed was then put in evidence by the defendant, and by it the plaintiff, for the con- sideration of $100 paid, the receipt whereof was acknowledged, and the further consider- ation of $000, to be paid on the 15th day of April, 1857, sold, released, and forever quit- claimed to the defendant all his right, title and interest to the said real estate, and the plaintiff did thereby w-arrant and defend the above property. It was dated June 2f>, 1857, and signed, "Wm. R. Henry, by his agent, H. C. Campbell." It was acknowledged on the same day by the agent before a notarj- public. The court held and decided the paper in evidence conveyed no title to the land in ques- tion to the defendant, not being under seal, and no power of attorney shown; to which i-uling and decision the counsel for the plain- tiff excepted. The court also decided that the defendant was not bound to tender to the plaintiff a reconveyance; to which ruling and decision the counsel for the plaintiff also duly excepted. The court also held and decided that the defendant was not liable on the note, because he was an infant when he executed it: to which ruling and decision the plaintiff also duly excepted. And thereupon the court directed the jurj- to render a verdict for the defendant; to which ruling and direction the plaintiff' al.so excepted. Thereupon, the ex- ceptions were directed to be heard in the first instance at the general term, where judgment thereon was given for the defendant. The plaintiff now appeals to this court. There is no controversy that the defendant was an infant at the time this note was ex- ecuted. If he has done nothing since attain- ing his majority which makes the contract obligatory upon him. then the direction of the court to the jury to find a verdict for the de- fendant was correct. But if however he promised to pay the note, after arriving at full age, or ratified the contract, or affirmed the purchase for which the note was given, then the note became obligatory upon him. The defendant failed to sustain the allega- tion by his answer that any fraudulent rep- resentations had been made to him to induce him to enter into the purchase, or that tliere was any failure of title in the plaintiff, and consequently a failure of the consideration of the note. There has been much discussion in the books as to what acts or declarations of a party will revive a debt barred by the statute of limitations, or one discharged by an in- 302 CAPACITY OF PARTIES. solvent or bankrupt discbarge, or render ob- lisatory and valid the contract of an infant. There has been a commingling of all these cases in judicial opinions, and frequently no clear and marked lines of distinction have been presented. I shaU make the effort to eliminate some principles which are applica- ble to each of these cases, and endeavor to show wherein they differ and the reasons for such difference, and wherein they are coinci- dent and the principles which have been es- tablished as applicable to these three classes of cases. A clear imderstanding of the vari- ous decisions and the principles settled by them, makes such an examination imperative, and from it we shall discover the doctrine settled, and the reasons therefor. In Sands v. Gelston, 15 Johns. 519, Spencer, J., lays down what appears to be the correct rules in reference to debts barred by the stat- ute of limitations, debts of infants not for necessaries, and the debts of bankrupts dis- charged under the bankrupt acts. In all these cases, although by reason of certain provisions of law such debts cannot be en- forced against the debtors, still the debt re- mains, and the moral obligation to pay con- tinues in fuU force. Hence it is after a debt is baiTed by the statute in the one case or discharged by the operation of the bankrupt or insolvent laws in the other, or in the case of the infant who on attaining his majority, and not before, can make a legal contract, which can be eo instanti enforced against him, that in all these cases the moral obliga- tion has been held a sufficient and legal con- sideration without any other, for the promise or undertalving to pay the debt, by acknowl- edgment, ratification or a new promise. In other words, the courts have, in truth, re- garded the old debt as continued or revived, and no new consideration was required to .support it. Spencer, J., says, in Sands v. Gelston: "I never could see the difference as regards the revival of a debt, between one barred by the statute of limitations and one from which the debtor has been discharged under the bankrupt or insolvent laws. The remedy is equally gone In both cases. The statute of limitations requires all actions on contract to be commenced within six years next after the cause of such action accrued, and not after. The remedy being suspended after six years, there yet exists a moral duty on the part of the debtor to pay the debt; and accordingly a promise to pay a debt not ex- liuguished, but as to which the remedy is lost, is a valid pi-omise, and may be enforced on the ground of the pre-existing moral duty. There is then no substantial difference be- tween a debt barred by the statute of limi- tations, and a debt from the payment of which the debtor is exonerated by a discharge under bankrupt or insolvent laws. Both of these rest on the same principle with a debt contracted by an infant not for necessaries; yet it is singular that in neither of the latter ca.ses wiU the bare acknowledgment that the debt once existed and has not been paid, sup- port an action— an express promise to pay being necessary.'" A review of the cases on the question of what is necessary to revive a debt barred by the statute of limitations, will clearly show that a bare or mere acknowledg- ment of the existence of the debt is sufficient, as the law will imply or infer from its exist- ence a promise to pay it; and it is of little moment whether it be regarded as a new promise or a revivor and continuation of the old one. In Johnson v. Beardslee, 15 Johns. 4, an acknowledgment of the debt was holden to be sufficient evidence for the jury to presume a new promise. In Sluby v. Champlin, 4 Johns. 4G1, the defendant said the debt ought to be paid, and mentioned eighteen months as the time he wanted for payment. This was held a promise sufficient to make him liable. In Jones V. Moore, 7 Bin. 573, an acknowledg- ment of a subsisting debt was sufficient to take the case out of the statute, and it was held it would authorize the jury to infer a new promise to pay, or rather that the old promise was continued, or as some choose to call it, revived. Mosher v. Hubbard, 1.3 Johms. 510. On the claim being presented to the defendant, he did not intimate that he intended to avail himself of the statute; but the only question to his mind seemed to be whether the account had not been paid, and he promised to examine his papers, and if he found he had paid the order he was to write the witness, but as the witness testified he had never written, the court held that this was sufficient to raise an implied promise to pay the money, unless on examination it should be found that the order had been paid, and there was no evidence whatever of any payment. Sands v. Gelston, supra. Spencer, J., says: "I am bound by authority to con- sider the acknowledgment of the existence of a debt within six years before the suit was brought, as evidence of a promise to pay the debt." In Clemenstine v. Williamson, 8 Cranch, 72, Marshall, C. J., says: "It has been fre- quently decided that acknowledgment of a debt, barred by the statute of limitations. takes the case out of that statute, and re- vives the original cause of action. So far as decisions have gone, principles may be con- sidered as settled, and the court will not lightly unsettle them. * * * It is not suf- ficient to take the case out of the act tliat the claim should be proved, or be acknowledged to have been originally just: the acknowl- edgment must go to the fact that it is still due." The same learned judge, in Wetzel v. Buz- zard, 11 Wheat. 309, remarked: "It is con- tended on the part of the plaintiff that he has proved an acknowledgment of the debt, and that such acknowledgment, according to a long series of decisions, revived the original I promise, or it lays the foundation upon which the law raises a new promise. The English INFANTS. ms and American books are filled with decisions which support this general proposition. An iiiKlualified admission that the debt was due at the time has always been held to remove the bar created by the statute." In Bloodgood v. Bruen, 8 X. Y. 302, Gardi- ner, J., says: "A mere ackuowledj^ment of an indebtedness is but evidence from which a promise to pay may be inferred. When it is unconditional, a court or jury may infer a willingness to pay, or a promise to that ef- fect, because it would be ditlicult to assign any other reason for a voluntary admission of this sort." Marcy, J., says in Depuy v. Swart, 3 Wend. 1;'>'J, "that the bare acknowledgment of a debt, barred by the statute of limitations, is held to revive it." In Purdy v. Austin, 3 Wend. 189, the same jiLstice says, after discussing the reasoning of the court in Sands v. Gelston, that the un- qualified and unconditional acknowledgment of a debt, made by a party within six years before suit brought, is adjudged at law to imply a promise to pay. In Bell V. Morrison, 1 Pet. 3.31, Justice Story, in delivering the opinion of the court, oljserves, that "the rule announced in 11 Wheat, was the result of a deliberate exam- ination by the court of the English and Amer- ican authorities," and adds: "We adhere to the doctrine as there stated, and think it the only exposition of the statute which is con- sistent with its true object and import." He then says: "If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an un- qualified and direct admission of the previous subsisting debt which the party is liable and willing to pay." At the conclusion of the opinion, he says that it is to be understood that it is not miauimous, but that of a ma- jority of the court, and that it has been prin- cipally, if not exclusively, infiuenced by the course of decision in Kentucky on this sub- ject. I think particular note should be made of this remark, as Judge Story's observations in this cause have been disapproved of by two of the judges of our own state, hereafter al- luded to. It is to be observed that Judge Stoiy introduces an element which is not, so far as my researches extend, contained in any previous authority, viz.: that the party maJc- ing the acknowledgment must be "willing to pay." He does not s:iy that he must express that willingness, as some judges have sup- > posed, or whether that willingness may be in- ' ferred from his acknowledgment of the pre- vious subsisting debt. I think the latter view nuist be the correct interpretation of this re- mark, as I am unable to find any dictum of any judge anterior to this, that in addition to the acknowledgment it was required that the | party must also express a willingness to pay. In Purdy v. Austin, supra, the judgment was reversed on the ground that the acknowledg- ment of the defendant did not amount to an , unequivocal and positive recognition of tlie subsisting claim in favor of the plaintiff. In Stafford v. Bryan, 3 Wend. 53o, Suther- land, J., in delivering the opinion of the court of errors, says: "All acknowledgment, which is to have the effect of taking a demand out of the effect of the statute of limitations, ought to be clear and explicit in relation to the subject of the demand to which it refers. The acknowledgment or new promise is to be aflirnuUively establislied by the plaintiff." He adds: "Although I cannot yield my assent to aU the points decided in that case (Bell v. Morrison), nor to all the reasonings and posi- tions advanced by the learned judge who de- livered the opinion of the court, the general views to which I have assented appear to me to be sound and impressive." In Dean V. Hewitt, 5 Wend. 2.'37, Marcy, J., remarks, that "the statute of limitations proceeds upon the presumption of payment; a recognition of the existence of the debt, after the statute has attached, revives the remedy which was lost, but the cause of action is the same as it was before the remedy. This court has al- ways considered the acknowledgment or new promise as a contiuu,;nce of the old promise. * * * The acknowledgment rebuts the pre- sumption of payment; and when made be- fore the statute attaches, has the same effect as though made afterward. It keeps alive, if I may so express it, the remedy. • * * It cannot be said that the new promise either revives the cause of action or the remedy'; it only continues the latter." He adds, t li it he is aware that some of the positions there stated conflict with the views of Mr. Justice Stoiy, as expressed in Boll v. Morrison, but we cannot yield to these views, and give full effect to them, without unsettling principles that have been so long established as to en- title them to be evidence of the laws of this state. In Hancock v. Bliss, 7 Wend. 2G7. Chief Justice Savage said, the acknowledgment must however be explicit, and without a de- nial of the equity or legality of the demand, hence if the defendant denies the justice of the demand, or ivposes himself upon the stat- ute, a promise will not be presumed. In Patterson v. Choate, 7 Wend. 445, the court by Suth.-rland, J., held that an ac- knowledgment of an existing indebtedness was suthcient to raise a new promise. There the witness first stated what the defendant said, as follows: That "the balance as ex- hibited by their books of account was due to the plaintiff at the time of the dissolution of the copartnership, and had not been paid to his knowledge." Upon being internipted by the plaintiff's counsel, he said the expression used by Patterson was that the balance was due at the time of the dissolution, and still is due, as witness thought; it might have been, that it was then due and had never been paid; either version of it amounts to a clear and explicit admission of a subsisting io- debtedness. 304 CAPACITY OF PAKTIES. In Galley v. Crane, 21 Pick. 523, the su- preme court of Massachusetts says, the doc- trine laid down in the case of Bangs v. Hall, 2 Pick. oLiS, was well considered, has since been tested by experience, and is undoubtedly sound and wise. It has been everywhere ac- knowledged as sound law (citing a large num- ber of authorities to sustain this position). The court further say: "The principles there laid down are. that to take a debt out of the statute of limitations there must be either an express promise to pay, or an imqualitied ac- knowledgment of present indebtedness. In the latter ease the law will imply a promise to pay." In Allen v. Webster, 15 Wend. 284, Savage. C. J., after reviewing all the authorities, says: "Whatever therefore uviy be the true philo- sophy of the rule, and learned judges have differed on that subject, yet since the case of Sands v. Gelston, there has been no dispute as to what the rule in fact is, to-wit: that to revive a debt barred by the statute of limita- tions, whether the statute theoretically oper- ates upon the debt itself, or upon the remedy only, there must be an express promise or an acknowledgment of a present indebtedness, a subsisting liability, and a willingness to pay." This last remark about a willingness 1o pay has no foundation, but Judge Story's ob.->ervation in BeU v. Morrison, and which liad been disapproved of by two of our judges; Gardiner, J., states the rule as he is inclined to think it is in Wakeman v. Sher- man, 9 N. Y. 91, in these words: "That to revive a demand thus barred there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circum- stances, that such a promise may be fairly implied." And this case also enunciates the rule laid down in many other cases, that the acknowledgment of existing indebtedness or the promise to pay must be made to the party to whom the debt is due, or to his agent; an acknowledgment or promise to a stranger will not answer. As has been seen from the remarks of Chief Justice Spencer in Sands v. Gelston, some- thing more has been required to establish a debt against a bankrupt, which has been dis- charged by his certificate, or a discharge from his debts under an insolvent law. In the latter case the debt has ceased to exist. It has been extinguished, and though the moral obligation notwithstanding remains to pay it, and is held to be a good consideration for the promise to pay it, yet there must be a new promise equivalent to a new contract. In the case of a debt barred by the statute of limi- tations, we have seen that the debt is not dis- charged, but the remedy by action is only takeu away or suspended until the debt is re- vived. In the case of Roberts v. Morgan, 2 Exch. 73G, Eyre, C. J., says a debt barred by a eeitificate, under a commission of bankruptcy, by a new promise to pay it, becomes a new- debt. Lord Mansfield also says, when there has been a new promise after the discharge, the bankrupt is liable as on a new contract. Doug. 192. The moral obligation uniting to the new promise makes what he calls in the case of Truman v. Fenton, Cowp. 544, "a new undertaking and agreement." In Dupuy v. Swart, 3 Wend. 135, Marcy, J., says: "The bare acknowledgment of a debt barred by the statute of limitations is held to revive it; but an acknowledgment of a debt from which the defendant has been dis- charged, be it ever so explicit, gives no chance of action." After referring to the authorities also alluded to he says: "The authorities clearly show that the new promise is the con- tract upon which the action against the de- fendant must rest. The old debt has no fur- ther connection with this suit than what arises from the circumstance that it is resort- ed to for the purpose of furnishing a consid- eration for the promise, by reason of its moral obligation after its legal obligation is de- stroyed by the discharge. The liability there- fore of the defendant is on the new contract." A protracted struggle has been maintained in the courts, on the one hand to protect in- fants or minors from their own improvidence and folly, and to save them from the depre- dations and frauds practiced upon them by the designing and imprincipled, and on the other to protect the rights of those deaUng with them in good faith and on the assump- tion tliat they could lawfully make contracts. Much discussion has been had in the books, by eminent and learned judges, whether the contracts of an infant were void or voidable, and the earlier decisions were that such con- tracts were void. And the method adopted by the courts to protect an infant against the effects of his own weakness, has been to con- sider his acts as not binding. Bing. Inf. 5. Miserable (says Lord INIansfield, in 3 Bur- rows, ISOl) must the condition of minors be, excluded from the society and commerce of the world, deprived of necessaries, education. enq)loyment and many advantages, if they could do no binding acts.' Great inconven- ience must arise to them if they were bound by no act. The law therefore at the same time that it protects their inability and in- discretion from injury, through their own im- prudence, enables them to do binding acts, and without prejudice to themsdves, for the benefit of others. And in that case (Couch v. Parsons), it was expressly decided that an infant's conveyance, by lease and release, was voidable only and not void. This deci- sion has been considered by many judges and lawyers as unsound, and particularly by Mr. Preston, in his work on Conveyancing, in which he says: "No lawyer of eminence has thought it safe to follow that decision in prac- tice. To admit indeed that such a decision is law, is to confound all distinctions and to oppose all authorities on this head" (2 Prest. Conv. 24S); and at page 375 he also says: "It would be well for every lawyer that such a decision had never existed." These views INFANTS. o05 of this learned author show how firmly iui- Ijlanted in the loyal muid was the doctrine, that the acts and conti'acts of an infant wei"e void and not voidable. We shall see that the modem doctrine is fully iu harmony with that laid down in Couch V. I'arsous, and that such is now the well and firmly-eslablished rule of law. A void act never is nor never can be binding, either on the person with whom it origi- nates or on others. All who claim through or under it must fail, and it never can, at any time or by any means, be confirmed or rendered valid. A voidable act is binding on others until disafhrmed by the party with whom it originated; it is capable, at a prop- er time and by proper means, of being con- firmed or rendered valid. Bing. Inf. 7. I tliink it will be found, on a careful exam- ination of the cases and the current of de- cision by learned judges, that the doctrine of an express promise by an infant, after his attiiiuiug his majority, being necessary to es- tablish a contract as binding made by him during infancy, originated maiuly from two sources: First, the notion of the English Judges that it was their peculiar duty to pro- tect infants from their own acts of impru- dence and folly; and second, that their con- tracts being wholly void, something must be done equivalent to a new contract after com- ing of age to make that legal and effective wluch before had no force or existence. And from this latter consideration I think another error had its origin into which so many judg- es have fallen, that to make binding a con- tract of an infant after he attained his ma- jority, acts must be done of an equal charac- ter or degree which a bankrupt discharged from a debt must peilorm to give new life, vigor and vitahty to a debt discharged and canceled by his bankrupt or insolvent dis- Qharge. The promise to pay a debt dis- charged under an ins)lvent law, as we have seen, becomes a new contract. In the case of Roberts v. :Morgan, 2 Exch. 730, Eyre, C. ,T., says a debt barred by a certificate under a commission of bankruptcy, by a new prom- ise to pay it, , becomes a new debt. Lord Mansfield also says, when there has been a new promise after the discharge, the bank- rupt is liable as on a new contract. Doug. 192. The moral obligation, uniting to the new promise, makes what he calls, in the case of Truman v. Fenton, Cowpi 544, "a new undertaking and agreement." In Lynbuiy v. Weightman, 5 Exch. 198, Lord Ellenborough said, that in order to bind a bankrupt by a new promise, he should ex- pect a positive and precise promise to pay; and in a note to this case it is said that bankrupts and infants stand on a dittereut ground with respect to debts from which they are discharged. If the contract of the infant be not void, but only voidable, can it be justly said that it has been discharged paid, that is. as if it had no existence? It seems to me not, and HOPE. SEI.. CAS. CONT. — 20 that the course of argument of many learned judges, in assuming that the conti-act of the infant aud that of a bankrupt discharged by the act are to be placed on the same foot- ing, cannot be sustained, either by sound rea- soning or by authority. I think the founda- tion of the reas c ases, liable for torts committed by them, but they are not liable where the wrong is connected with a con- tract and the result of the judgment is to indirectly enforce the contract Judge Cooley says: "If the wrong grows out of contract relations, and the real injury consists in the non-performance of the contract into wliith the party wronged has entered with an in- fant the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform It, or omis- sion of duty under it as a tort." Cooley, Torts, 116. In another place the same au- thor says: "So, if an infant effects a sale by means of deception and fraud, his in- fancy protects him." Cooley. Torts, 107. Addison, following the English cases, says an infant is not liable "if the cause of action is grounded on a matter of contract with the infant and constitutes a breach of con- 316 CAPACITY OF PARTIES. tract as well as a tort." Add. Torts, par. 1314. Upon this principle it has been held In some of the cases that an infant is not liable for the value of property obtained by means of false representations. Hewlett v. Has- well, 4 Camp. 118; Green v, Greenbank, 2 Mai-sh. 4S5; Vasse v. Smith, 6 Cranch, 226, 1 Am. Lead. Gas. 237; Studwell v. Shapter, 54 N. Y. 249. It is also generally held that an infant is not estopped by a false repre- sentation as to his age; but this doctrine rests upon the principle that one under the disability of coverture or infancy has no power to remove the disability by a repre- sentation. Carpenter v. Carpenter, 45 Ind. 142; Sims v. Everhardt, 102 U. S. 300; Whit- comb V. Joslyn, 51 Vt. 79; Conrad v. Lane, 26 Minn, 3S9, 4 N. W. 695; Wieland v. Ko- bick, 110 111. 16; Ward v. Insurance Co., 9 N. E. 361. It is evident, from this brief reference to the authorities, that it is not easy to extract a principle that will supply satisfactory rea- sons for the solution of the difficulty here presented. It is to be expected that we should find, as we do, stubborn conflict in the authorities as to the question here di- rectly presented, namely, whether an action will lie against an infant for falsely repre- senting himself to be of full age. Johnson V. Pye, 1 Sid. 25S; Price v. Hewett, 8 Exch. 146; Association v. Fairhurst, 9 Exch. 422; Brown v. D'jnham, 1 Root, 272; Curtin v. Patton, 11 Serg. & R. 309; Homer v. Thwing, 3 Pick. 492; Word v. Vance, 1 Nott & M. 197; Fitts v. Hall, 9 N. H. 441; Norris v. Vance, 3 Rich. 104; Gilson v. Spear, 38 Vt. 311. Our judgment, however, is that, where the infant does fraudulently and falsely repre- sent that he is of f uU age, he is liable in an action ex delicto for the injury resulting from his tort. This result does not involve a violation of the principle that an infant is not liable where the consequence would be an indirect enforcement of his contract; for the recov ery is no t upon the contract , "that~lsT;reated a.s of no~efl;ect, nor is he jfta4ev ^pay tEeTontract price^ of the article purrhfiBf^d by h'""i, «« Tip ig-nrily hr-lrt-rh gjTT swer for the a ctual loss c aused by h is fraud . loItrnr^rTnm responsible for~~EIIe In holdifljr him responsible for the conse- quences of his wrong, an equitable conclusion is reached, and one which strictly harmon- izes with the general doctrine that an infant is liable for his torts. Nor does our con- clusion invalidate the doctrine that an in- fant has no power to deny his disability; for it concedes this, but affirms that he must answer for his positive fraud. Our conclusion that an infant is liable in tort for the actual loss resulting from a false and fraudulent representation of his age is weU sustained by authority, although, as we have said, there is a fierce conflict, and it is strongly entrenched in principle. It has been sanctioned by this court, although, perhaps, not in a strictly authoritative way; for it was said by Worden, J., speaking for the court, in Carpenter v. Carpenter, supra, that "the false representation by the plaintiff, as alleged, does not make the contract valid, nor does it estop the plaintiff to set up his in- fancy, although it may furnish ground of an action against him for tort. See 1 Pars. Cont. 317; 2 Kent, Comm. (12th Ed.) 241." The reasoning of the court in the case of Pittsburgh, etc., Co. v. Adams, 105 Ind. 151, 5 N. E. 187, tends strongly in the same direc- tion. In NefC V. Landis (Pa. Sup.) 1 Atl. 177, it was said: "It cannot be doubted that a mi- nor who, under such circumstances, obtains the property of another, by pretending to be of full age and legally responsible, when in fact he is not, is guilty of a false pretense, for which he is answerable under the crim- inal law. 2 Whart. Or. Law, 2099." If it be true, as asserted in the case from which we have quoted, that an infant who falsely and fraudulently represents himself to be of full age is amenable to the criminal law, it must be true that he is responsible in an action of tort to the person whom he has wronged. The earlier English cases were undoubtedly against our conclusion, but the later cases seem to take a different view of the question. Thus, in Ex parte Unity, etc., Ass'n, 3 De Gex & J. 03, it was held that, in equity, an infant, who falsely and fraudulently repre- sented himself to be of full age, was bound to pay the obligation entered into on the faith of his representation. In the note to the case of Humphrey v. Douglass, 33 Am. Dec. 177, Mr. Freeman says, in speaking of the decision in Kilgore v. Jordan, 17 Tex. 341, that, "aside from any question of author- ity, the rule given in the case last cited by Hemphill, C. J., as the rule of the Spanish, derived from the civil law, that if a minor represents himself to be of age, and from his person he appears to be so, he will be bound by any contract made with him, seems to be most consonant with reason and justice." ]\Ir. Pomeroy pushes the doctrine much fur- ther than we are required to do here, for he says, "If an infant procures an agreement to be made through false and fraudulent rep- resentations that he is of age, a court of equi- ty will enforce his liability as though he were an adult, and may cancel a conveyance or ex- ecuted contract obtained by fraud." 2 Pom. Eq. 465. In addition to cases cited which sustain our view may be cited the following authori- ties: Fitts V. Hall, 9 N. H. 441; Eckstein V. Frank, 1 Daly, 384; Schunemann v. Para- dise, 46 How. Prac. 426; Tyler, Inf. 182; 1 Pars. Cont. 317, note; 1 Story, Eq. 385. The English cases recognize a distinction between suits of equitable cognizance and actions at law, and declare that a representa- tion as, to age, when falsely and fraudulently made, will bind an infant in equity. Ex I INFANTS. 317 parte Unity, etc., Ass'n, supra, and authori- ties cited. UndG' our system, we can rec- ognize no such distinction,— a distinction which is, as we thinli, a shadowy one under any system, for, in our system, the rules of law and equity are merged and mingled. Under such a system as ours, courts should pursue such a course as will render justice to suitors under the rules of equity, wliich, after all, are but the embodiment of the prin- ciples of natural justice. It cannot be the duty of any court of In- diana to deny substantial justice because the complaint states a cause of action in a pecu- liar form; for, under our system, courts must render such judgments as yield justice to those who invoke their aid, irre.spective of mere forms, in all cases where the substan- tial facts are stated, and are such as entitle the party to the general relief sought. They will not inquire whether the proceeding which asks their aid is at law or in etjuity, but they will render justice, to those who ask it, in the method prescribed by our Code of Civil Procedure. It is laid down as a general rule by all the text writers that infants are liable for their torts; but many of these writers, when they come to consider such a question as we have here, are sorely per- plexed by the early English decisions, and, by subtle refinement, attempt to discriminate between pure torts and torts connected with contracts, and to create an artificial class of actions. Their reasoning is not satisfactory. Aside from mere personal torts, it is scarce- ly possible to conceive a tort not in some way connected with a contract, and yet all the autliorities agree that the liability of infants is not confined to mere personal torts. There is a connection between a contract and a tort in every case of bailment, of the bargain and sale of personal property, and of the pur- chase and sale of real estate; and, if an in- fant is not responsible for his fraudulent representation of his age in connection with such transaction, there is not within the whole range of business transactions any case in which he could be made liable for his fraud. There are many cases, far too numerous for citation, where there is some connection between the contract and the tort, and yet it is unhesitatingly hold that the in- fant is liable for his tort Cooley, Torts, 112, authorities cited in notes. The cases certainly do agree — it is, indeed, dillicult, if not impossible, to perceive how it could be otherwise — that, although there may be some connection between the contract and the wrong, the infant may be liable for his tort. It seems to us that the only logical and de- fensible conclusion is that he is liable, to the extent of the loss actually sustained, for his tort, where a recovery can be had without giving effect to his contract. The test, and the only satisfactory test, is supplied by the answer to the question- Can the infant be held liable without directly or indirectly en- forcing his promise? There is no enforcement of a promise where an infant, who has been guilty of a positive fraud, is made to answer for the actual loss his wrong has caused to one who has dealt with him in good faith, and has exercised due diligence; nor does such a rule open the way for designing men to take ad- vantage of an infant, for it holds one who contracts witli an infant to the exercise of good faith and rea.sonable diligence, and does not enable him to make any profit out of the transaction with the infant, for it allows him only compensation for the actual loss sus- tained. It does not permit him to make any profit out of an executory contract, but it simply makes good his actual loss. It is wortliy of observation that, in the cas- es which hold that an infant's representa- tion will not estop him to deny his disability, it is generally declared that he may, never- theless, be held liable for his tort. It may often happen that the age and appearance of the infant will be such as to preclude a recov- ery for a fraud, because reasonable diligence, which is exacted in all cases, would warn the plaintiff of the nonage of the defendant. On the other hand, the infant may be in years almost of full age, and in appearance entirely so, and thus deceive the most dili- gent by his representations. Suppose a mi- nor who is really 20 years and 10 months old, but in appearance a man of fuU age. should obtain goods by falsely and fraudu- lently representing that he is 21 years of age, ought he not, on the plainest principles of natural justice, to be held liable, not on his contract, but for the loss occasioned bv his fraud? The rule which we adopt will enable courts to protect, in some measiu-e, the honest and dUigent, but none other, who are misled by a false and fraudulent repre- sentation; and it will not open the way to imposition upon infants, for in no event can anything more than the actual loss sustained be recovered, and no person who trusts where fair dealing and due diligence require him not to trust can reap any benefit. It will not apply to an executory contract which an infant refuses to perform, for, in such a case, the action would be on the promise, and the only recovery- that could be had would be for the breach of contract, and the terms of our rule forbid such a result; but it will ap- ply where an infant, on the faith of his false and fraudulent representation, obtains prop- erty from another, and then repudiates his contract Any other rule would, in many cases, suffer a person guilty of positive fraud to escape loss, although his fraud had enabled him to scK'ure and make way with the property of one who had trusted in good faith to his rep- resentation, and had exercised due care and diligence. We are unwilling to sanction any rule which will enable an infant who has obtiined the property of another by falsely and fraudulently representing himself to be of full age, to enjoy the fruits of his fraud. 318 CAPACITY OF PARTIES. either by keeping the property himself, or selling it to another, and, when asked to pay- its just and reasonable value, successfully plead his infancy. Such a rule would make the defense of Infancy both a shield and a sword, and this is a result which the princi- ples of justice forbid, for they require that it should be merely a shield of defense. Judgment reversed, with instructions to overrule the demurrer to the complaint c^ > INSANE PERSONS AND IDIOTS. 319 ALLIS V. BILLINGS. (6 Mete 415.) 1^ r,^ Supreme Judicial Court of Massachusetts. Sept Term, 1843. Writ of entry to recover seven acres of land in Hatfield. At the trial, the tenant gave in evidence a deed from the demandant, dated March 25th, 1835, convcyinj; the demanded premises, and several other parcels of land, being the farm and outlands belonging to the demandant, whose previous title, by devise from his father, was admitted. The consid- eration of said deed was a note, given to the demandant by the tenant and a surety, for $4,G00, payable In six years, with yearly in- terest. On this note were sundry indorse- ments, reducing it to about $3,000. Some of these indorsements were in the hand-writing of the tenant, and some in that of the de- mandant. The demandant did not offer to re- turn the note or the money received. The tenant sold the said farm, and part of said outlands for a sum somewhat exceeding $5,000; and a writ of entry was commenced against his grantee, by the demandant, to re- cover the same; which writ was returnable at a term subsequent to that at which the present action was tried. It appeared that the tenant went into pos- session under said deed, and was In posses- sion of the demanded premises, when this ac- tion was commenced, claiming title thereto under said deed. The demandant, to avoid the effect of the said conveyance to the tenant, offered to prove that he was insane when it was ex- ecuted by him, and also that it was obtained by undue influence. The evidence which he introduced tended to show that he had been insane and sane, at different times, for a number of years prior to the making of said conveyance, and also since. The tenant requested the Judge who tried the cause to instruct the jury: "That if the demandant was subject only to temporary turns of insanity, and insane when he made the deed, yet if, after he became sane, and when sane, he did acts in affirmation of the contract, as by receiving payments on the note, and the like, he could not afterwards maintain an action to avoid the deed on the ground of insanity; that, as between the pres- ent parties, this action could not be main- tained for one of several parcels described in the deed, and remaining in the possession of the tenant; and that the demandant, to main- tain his action, should return the note and yio money received." The judge instructed the jurj', that if they were satisfied that the demandant was not of sane mind when he made the deed, it was void absolutely, and not voidable merely, and that the receipt of money on tlie note would not bar an action, though the demandant was sane at the time he received it; that it was not necessary for him to return the note or money received, under the circumstances of this suit; and that the demandant was not obliged to demand in this action all the par- cels in the possession of the tenant and un- sold. The jury found that the deed was made when the demandant was Insane, and they did not consider the allegation of fraud. New trial to be granted, if the ruling of the judge was incorrect; otherwise, judgment to be rendered for the demandant, on the ver- dict Mr. Huntington, for the tenant Forbes, for the demandant Wells & DEWEY, J. The quf stion raised In the present case is whether the deed of one who is insane at the time of the execution thereof is void absolutely, or merely voidable. The term "void," as applicable to convey- ances or other agreements, has not at all times been used with technical precision, nor restricted to its peculiar and limited sense as contradistinguished from "voidable"; it be- ing frequently Introduced, even by legal writ- ers and jurists, where the purpose is nothing further than to indicate that a contract was invalid, and not binding in law. But the dis- tinction between the terms "void" and "void- able," in their application to contracts, is often one of great practical importance; and when- ever entire technical accuracy is required the term "void" can only be properly applied to those contracts that are of no effect whatso- ever; such as are a mere nullity, and incapa- ble of confirmation or ratification. This question, then, arises: Is the deed of a person non compos mentis of such a char- acter that it is incapable of confirmation? This point is not now for the first time raised, but has been the subject of comment both by elementary writers and in judicial opinions. Mr. Justice Blackstone, in his Commentaries (volume 2, p. 291), states the doctrine thus: "Idiots, and persons of non-sane memory, in- fants, and persons under duress, are not to- tally disabled to convey or purchase, but sub modo only, for their conveyances and pur- chases are voidable, but not actually void." Chancellor Kent says, "By the common law, a deed made by a person non compos is void- able only, and not void." 2 Kent, Comm. (4th Ed.) 451. In Wait v. Maxwell. 5 Pick. 217, this court adopted the same principle, and directly ruled that the deed of a non compos, not under guardianship, was not void, but voidable. Such a deed conveys a seizin to the grantee, and the deed, to that extent is valid, until, by entry or action the same is avoided. Mitchell V. Kingman, 5 Pick. 431, is to the like effect In Seaver v. Phelps, 11 Pick. 305, the contracts of ins;ine persons are noticed as contracts not absolutely void, but voidable. It may seem somewhat absurd to hold that a deed should have any effect when wanting in one of the essential elements of a valid contract, viz. that of parties capable of giv- ing an assent to such contract But this ob- 320 CAPACITY OF PARTIES. jection as strongly applies to cases of deeds executed by infants, who axe aJike wanting in capacity to make a binding contract Yet this principle of giving so much effect to the contract as removes it beyond that of a mere nullity, and renders it, to some present purpose, effectual, and susceptible of complete future ratification, is well settled and under- stood as to infants who enter into contracts; and it will be found that there is a common principle on this subject, alike applicable to the inability of a contracting party, arising from lunacy or infancy. The civil and the common law writers group together idiots, madmen, and infants, as parties incapable of contracting for want of a rational and delib- erate consenting mind. 1 Story, Eq. § 223, and authorities there cited. It is true that the rule of the common law, as held at one time, seemed to sanction, in one particiilar, a most xinwarrantable distinc- tion between the cases of deeds made by per- sons non compos and those made by infants; holding that the former could not be avoided by the party, upon the ground that no man of fiill age should be admitted to stultify him- self, although it allowed privies in blood, or privies in representation, after the death of the non compos, to avoid the deed, on the ground of incapacity in the grantor. This •distinction has not been adopted by out courts. On the contrary, we hold that such conveyance by one non compos mentis may be avoided by himself, as in the case of an in- fant grantor. This principle was directly recognized in the case of Mitchell v. King- man, 5 Pick. 431. Indeed, the English rule has, in modem times, been often questioned in England; and in the courts of our sister states it has received little if any sanction. 1 Story, Eq. § 225, and cases there cited. It was urged by the demandant's counsel that the doctrine that the deed of a non com- pos person was voidable only, and not void, was to be limited to feoffments, or cases where there is livery of seizin, or what is equivalent, and would not embrace a convey- ance by an unrecorded deed. But we do not think that such a distinction can be main- tained. As between the grantor and gran- tee, such unrecorded deed is good and effec- tual, by force of our statute; and the effect of such a conveyance would be to vest the title of the grantor in the grantee immediately upon the execution of the deed, and before the same is recorded. Marshall v. Fisk, 6 Mass. 31. A deed made in proper form, and duly acknowledged and recorded, is, in this commonwealth, equivalent to a feoffment with livery of seizin. Somes v. Brewer, 2 Pick. 197. Without the registry, where the delivery of the deed is accompanied by the surrender of the possession of the conveyed premises to the grantee, the effect would be the same as to the conveyance by a non com- pos as would result from a feoffment made by him. A deed of bargain and sale, it is said, places the grantee upon the footing of a feoffment, as it passes the estate by the de- livery of the hand; such grants or deeds as take effect by delivery of the hand being voidable only. Somes v. Brewer, 2 Pick. 197; Zouch v. Parsons, 3 Burrows, 1S04. We come, therefore, to the result, that the deeds of infants and insane persons are alike void- able, but neither are absolutely void. Upon the trial of the present action the plaintiff put his case upon two distinct grounds: 1st. That he was insane at the time he executed the deed under which the tenant derives his title: 2d. That the deed was obtained by vmdue influence and fraud on the part of the tenant. Upon both these points the plaintiff introduced evidence. What was the extent of the evidence upon the latter ground, and what would have been the finding of the juiy upon that point, we have no means of judging. This was a dis- tinct and independent ground, and one which, if found hi favor of the demandant, might have been decisive of the case, but which, in the final disposition of the cause, was not considered or passed upon by the jury. AU the evidence, therefore, bearing upon this point, is now to be treated as if never of- fered, and the sole inquiry for our considera- tion is whether the instructions of the court were such, in matter of law, that the verdict may be maintained, taken as it was upon the first ground solely. The presidin£_iudge_juled, as a matter of la w. tEafXdeed of an lns ane_person was ab- solutely vo id. Under this ruling, all that 'was required of the demandant to entitle himself to a verdict in his favor was to show a temporary insanity at the time of the exe- cution of the deed. No matter what might have occurred subsequently, or how soon afterwards the demandant might have been restored to a sound mind; no matter what acts of confirmation may have been done by him, or however fully he may have adopted and ratified the transaction, by the receipt of money, or other valuable consideration paid for the land,— still the legal title in the land would be in him. This was the necessary result of the doctiine that the deed of a non compos was absolutely void, while, if it had been held only voidable, these subsequent acts of the party might materially affect the ver- dict of the jury. But adopting, as we do, the principle that the deed of an insane per- son is only voidable, this, while it gives the insane grantor full power and authority to avoid his deed, and thus furnishes full pro- tection to him against all acts injurious to his interests, done while he was non compos, also entitles the other party to set up the deed, if he can show a ratification or adoption of it by the grantor, after he is restored to a sound mind. If the grantor when thus capable of acting, and with full knowledge of his previous acts, and of the nature and ex- tent of them, will deliberately adopt and rat- ify them; if he will knowingly and in the exercise of his proper faculties, take the bene- INSANE PERSONS AND IDIOTS. 521 fit of a contmct mado while he was Insane,— it is competent fur him to do so. But the consequence will be, to give force, effect, and legal validity to his contract, which was be- fore voidable. In the present case, therefore, upon the point first relied upon In the defence, viz. that the demandant was In.sane when he ex- ecuted the deed, the jury should have been Instructed that this fact. If established, ren- dered the deed voidable, and that it was com- petent for the demandant to avoid it on that ground If not estopped by his subsequent acts, done while in his ri^^ht mind; but that a voidable deed was capable of confirmation; and that If the grantor, in his lucid Intervals, HOPK. BEL. 0A8. CONT. — 2 1 or after a general restoration to sanity, then being of sound mind and well knowing and imderstanding the nature of the contract, rat- ified it, adopted it :!- a valid contract, and participated in the beuffits of it by rtH^e.ving from the purchaser the purchase money due on the contract, this would give effect to the deed, and render the same valid in the hands of the grantee, and would thus become ef- fectual to pass the lands, and divest the title of the grantor. Such Instructioas would have presented the question in ls.sue in a different aspect to the jury, and might have led to a different result upon the only point upon which they passed. Verdict set aside, and a new trial granted- R?2 CAPACITY OF PARTIES. /y c C^"- HOVEY V. HOBSON. /^ ^ (53 Me. 451.) / S; ^ . Supreme Judicial Court of Maine. A. MerriD, for plaintiff. H. P. Deane, for defendant. APPLETON, C. J. On July 27, 1835, Ste- phen Xeal, then owning the land in contro- versy, conveyed the same to Samuel E, Crock- er, from whom the tenant by various mesne conveyances derives his title. On Dec. 28, 1836, Stephen Neal died, leav- ing Lydia Dennett, then wife of Oliver Den- nett, his sole heiress at law. On Dec. 18, 1851, Oliver Dennett died. On July 15, 1858, Lydia Dennett conveyed the demanded premises to the plaintiff. The plaintiff introduced evidence tending to show that Stephen Neal at the date of his deed to Crocker was insane, and claimed to avoid said deed by reason of such insan- ity. After the testimony reported had been in- troduced, the presiding justice ruled "that, if Samuel E. Crocker without fraud, for an adequate consideration, purchased the land of Stephen Neal, and afterwards said Crock- er and those claiming under him, conveyed said land in good faith until it came into the hands of the tenant, for a valuable consider- ation, without any knowledge on his part of any defect in the title, or of any right or claim of any other person therein, then Mrs. Dennett or those claiming under her could not avoid her father's deed as against the de- fendant, on the ground of his unsoundness of mind; and that the tenant would be en- titled to a verdict." If Crocker, "without fraud, for an ade- quate consideration, purchased the land of Stephen Neal," Neal being sane, his grantees would undoubtedly acquire a good title. The ruling Is that, if insane, the same result would follow, the grantees of Crocker being bona fide purchasers, and ignorant of the Insanity of Neal. The questions therefore arise, (1) as to the rights of an insane man when restored to sanity, or of his heirs to avoid, as against his immediate grantee, his deed executed and delivered when insane; and, (2) as to the rights of those deriving a title in good faith without notice, and for a valid consideration from such grantee. 1. The deed of an insane man not under guardianship is not void but voidable, and may be confirmed by him if afterwards sane, or by his heirs. If under guardianship, the deed is absolutely void. Wait v. Maxwell, 5 Pick. 219. The right of avoiding a contract exists, notwithstanding the person with whom the insane man contracted was not apprized of and had no reason to suspect the existence of such insanity, and did not overreach him by any fraud or deception. Seaver v. Phelps, 11 Pick. 304. So an infant may avoid his contract, though the person dealing with him supposed him of age (Van "Winkle v. Ketcham, 3 Caines, 323); or even when he fraudulently and falsely represent- ed himself of age (Conroe v. Birdsall, 1 Johns. Cas. 127). The deed of an insane man being voidable, he may ratify it after he be- comes sane, or his heirs after his decease. Allis V. Billings, 6 Mete. Olass.) 415. An in- sane person or his guardian may bring an action to recover land of which a deed was made by him while insane, without first re- storing the consideration to the grantee, the deed not having since been ratified nor con- firmed. Gibson v. Soper, 6 Gray, 279. In this case, the remark of Shaw, C. J., in Ar- nold V. Iron Works, 1 Gray, 434, that if "the unfortunate person of unsound mind, com- ing to the full possession of his mental facul- ties, desires to relieve himself from a con- veyance made during his incapacity, he must first restore the price. If paid, or surrender the contract for it, if unpaid," is limited and restricted by Thomas, J., "to the case of a grantor having in his possession the notes which were the consideration of the deed and restored to the full possession of his mind." In the deed or other contract of an insane man the consenting mind is wanting. "To say that an insane man," observes Thomas, J., 'Tiefore he can avoid a voidable deed, must first put the grantee in statu quo, would be to say, in effect, that, in a large majority of cases, his deed shall not be avoided at all. The more insane the grantor was when the bargain was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. It would be absurd to annul the bargain for the mental incompetency of a party, and yet to require of him to retain and manage the proceeds of his sale so wisely and discreetly that they shall be forthcoming, when with restored intellect he shall seek its annul- ment" Lunatics and persons non compos are not bound by their contracts, though no fraud nor imposition has been practiced on them. Chew v. Bank, 14 Md. 318. The ruling presupposes a sale without fraud and for an adequate consideration. That a grantor sold his land for a fair price, that the purchase money was fully secured, that in the transaction he evinced by his conduct a knowledge of the value of his property and capacity in its management, would go far to negative an utter incompe- tency to contract, inferable only from a loss of memory common to old age or from a disregard of the decencies or courtesies of life. So the conversion by a feeble old man past labor, of property unproductive and bur- dened by taxation, into notes well secured and bringing an annual income, would hard- ly be deemed proof of utter imbecility, if the price was equal to the fair market value of the property sold. As the deed of an insane man is voidable only, it follows that it is capable of subse- quent ratification by the grantor if he be re- stored to reason, or by his heirs. The reten- INSANE PERSONS AND IDIOTS. 323 tion of the notes after such restoration and the receiving payments on them, would be evidence of such ratification. In the analo- gous case of infancy, it scorns that there may be an acquiescence by the grantor under such circumstances as would amount to an eqiiitable estoppel. In Wallace's Lessee v. Lewis, 4 liar. 75, it was held, that an In- fant's acquiescence in a conveyance for four years after age and seeing the property ex- tensively improvetl, would be a confirmation. Though mere lapse of time will not amount to a confirmation, unless continued for twen- ty years, yet in connection with other cir- cumstances It maj' amount to a ratification, Crosinger v. Welch, 15 Ohio, 15G; Wheaton V. East, 5 Yerg. 41. Whether, in the case be- fore us, the deed of Stephen Ncal has been affirmed by the reception, by those author- ized, of the purchase money for the land, or the heir at law after the death of her hus- band or the passage of the laws in relation to maiTied women is equitably estopped by her omission to act under circumstances which required action on her part, are ques- tions which at this time are not pressing for consideration. It Is true the English courts adopt a some- what different doctrine from that of the .\merican courts as to the right of an in- sane man when sane, or of his heirs to avoid a deed or contract executed when in- sane. Thus, In Solby v. Jackson, 6 Beav. 200, Lord Langdale refused to set aside a deed executed in good faith by an insane man and for an adequate consideration, when the parties could not be reinstated. "There are." observes Tuck, J., in Chew v. Bank, 14 Md. 318, "many cases in England to show that such persons are held by their i-ontracts unless fraud and Imposition have l)oen practiced, but to this we cannot assent. The doctrine in this country is the other way, and, as we think. Is sustained by bet- ter reasoning than the English rule as an- nounced in some of their decisions. The ef- fect in many cases would be to place luna- tics on the same footing with persons of sound mind, with less effective means to protect the injured party against the fraud, for at law, as well as in equity, fraud or imposition may be relied on, without refer- ence to the mental capacity of the parties except so far as such defect may give weight to other facts, from which the fraud may be deduced." The ruling, however, in the case at bar, ia not in accordance with that of the English courts, which require that, in addition to good faith and a full consideration, the person con- tracting should be apparently of sound mind, and not known to be otherwise to the party with whom he contracts. Molton v. Camroux, 2 Exch. 487. These elements are not requir- ed by the ruling under consideration. 2. It is Insisted, even if the deed of Neal might have been avoided as between the orig- inal grantor and grantee, that this right of avoidance ceases when the title has passed into the hands of third persons in good faith, for an adequate consideration, and ignorant of any facts tending to impeach such title. It is apparent that the protection of the insane and the idiotic will be materially di- minished, If the heirs cannot follow the projicr- ty conveyed, but are limited in their rigiit of avoidance to the Immediate grantee of such Insane or idiotic person. The acts of lunatics and infants are treated as analogous, and subject to the same rules. Key V. Davis, 1 Md. 32; Hume v. Barton, 1 Ridg. PI. 77. "The grants of infants and persons non compos are parallel both in law and reason." Thompson v. Leach, 3 Mod. 310. The law is well settled that a minor when of age may avoid his deed given when an in- fant. He may do this not merely against his grantee, but he may follow the title wherever it may be found and recover his land. "It may be objected," observes Marshall, J., in Myers v. Sanders' heirs, 7 Dana, 524, "that these restrictions upon the right of an adult to avoid his deed obtained by fraud are incon- sistent with the principle which allows an in- fant to avoid his deed, into whose hands soever the bill may have passed and without regard to time, except as a statutory bar run- ning after he becomes of age. But, waiving the inquiry how far the mere acquiescence of an infant grantee after he becomes of age may determine his right of revoking his title from the hands of a purchaser for value, who has acquired it after such acquiescence, we think the analogy between the cases is too slight to have any decisive influence upon the present question. The right of an infant to avoid his deed is an absolute uncontrollable privilege, founded upon an incapacity con- clusively fixed by the law to bind himself ab- solutely by deed or to pass an indefeasible title. These principles are irreversibly fixed by the law, and it enforces them without in- quiring into particular circumstances, and without regard to consequences. It must do so in order to maintain them. The right of an adult grantor, to avoid his deed for fraud, stands upon an entirely different basis. It grows out of the particular circumstances; it is founded in a regard to justice between man and man; it is given as a remedy for the hardship of his case. In its very foundation and essence, it is limited by the justice which is due to others, and therefore cannot be ex- ercised without a regard to their rights and \nterests." "But again, infancy is not, like fraud, a circumstance wholly extraneous from the ti- tle. The deed shows who the grantee is; the purchaser knows tl.at an infant grantee can- not pass an indefeasible title; he is bound to know the identity of the person, who assumes to convej- the title; and It Is not an unrea- sonable requisition that he shall know wheth- er the grantee, under whom he claims title. Is under incapacity or not. In this view of the subject, no purchaser under an infant's 324 CAPACITY OF PARTIES. deed is innocent In the eye of the law, until the title has been confirmed by the matured consent of the grantor." In Bool v. jMix, 17 Wend. 119, the suit was against one claim- ing by a title derived from the grantee of the minor, but the ground was not taken that in consequence thereof the tenant had an indefeasible title. The principles applica- ble to deeds voidable for the Infancy of the grantor are equally applicable where the gran- tor is insane. When a man is defrauded, he may, as against his grantee, avoid his deed, but not against those deriving in good faith and for an adequate consideration a title from such grantee. He has the ability to convey an indefeasible title,— and he does convey such title to all bona fide purchasers from his grantee. The insane man has not the power to convey such indefeasible title. This in- capacity inheres in all titles derived from him. The grantee, whose title is thus deriv- ed, must rely on the covenants of his deed. He risks the capacity to convey of all through whom his title has passed. The right of infants and of the insane alike to avoid their contracts is an absolute and paramount right, superior to all equities of other persons, and may be exercised against bona fide purchasers from the grantee. 1 Am. Lead. Cas. 259. Exceptions sustained. The case to stand for triaL CUTTING, WALTON, DICKEESON. DAN- FORTH and TAPLEY, JJ., concurred. INSANE PEKSONS AND IDIOTS. 325 MUTUAL LIFE INS. CO. t. BDQNT. (79 N. Y. &41.) Court of Appeals of New York. 1879. Robert P. Harlow, for appellanta. Win- chester Britton, lor respondent. DANFORTH, J. The action is for the fore- closure of a bond and mortgage, dated April 23, 1S70, and then executed by the defendant Hunt for the purpose of securinj,' lu the plaintiff the payment of $4,000 on the 1st of September, 1S71. The complaint shows that interest was paid on the 1st of March, 1871, but default made in September following; that in December, 1871, the defendant Hunt was adjudged a lunatic, and Arnold H. Wag- ner appointed committee of her person and estate. He was made co-defendant with her; and in her behalf, and by way of de- fense, alleges "that at the time of the exe- cution of the bond and mortgage she was a lunatic, and incapable of making or execut- ing them." The issue thus presented was tried before a careful and experienced judge at special term and he found as a fact: "That at the time of the execution and de- livery of the bond and mortgage, the said Camilla Hunt was of sound mind, and was capable of making and executing said bond and mortgage," and ordered judgment in ac- cordance with the prayer of the complaint. The finding is well warranted by the evi- dence, and upon this ground alone we should be required to affirm the judgment But the learned court at general term went beyond it and for the purposes of the ap- peal assumed, without deciding the contrary of the finding to be the truth, yet held that as the case presented a contract executed upon a valuable consideration, of which the lunatic had the benefit, made by the plain- tiff "in good faith, without fraud or unfair- ness, without knowledge of the insanity, and without notice or information calling for in- quiry," the plaintiff was entitled to recover. The correctness of this conclusion is strenu- ously assailed by the learned counsel for the appellant, but both upon principle and au- thority we think it must be sustained. Up- Dn principle because the plaintiff's money was had by the defendant, appropriated to her use, and thus tended to increase the oody of her estate, and although in some cases a man ma.v now, notwithstanding the old com- mon-law maxim to the contrary (Beverly's Case, 2 C3oke, 508, pt 4, 123b), "be admitted to stultify himself" yet he cannot do so to the prejudice of others, for he would thus make his own misfortune an excuse for fraud, and against that the doctrine of the maxim stands unaffected by any exception. 1 Story, Eq. Jur. § 22G. In this case the loan was made in the ordinary course of business; it was a fair and reasonable transaction; the defendant acted for herself, but with the aid of an attorney; if mental unsoundness ex- isted it was not known to the plaintiff, and the parties cannot now be put in statu quo. The defendant was therefore properly held 11 able. Very much in point and upon circumstan- ces similar to those above stated was Mol- ton V. Camroux, 2 Welsh. H. & G. 487; af- firmed in error, 4 Welsh. H. & G. 17. Con- cerning it the chancellor, in Elliott v. luce, 7 De Gex, M. & G. 487, says: "The principle of that case was very sound, viz.: that an executed contract, when parties have been dealing fairly and in ignorance of the lunacy, shall not afterward be set aside; that was a decision of necessity, and a contrary doc- trine would render all ordinary dealings be- tween man and man unsafe." And so it has been held, and like contracts enforced upon the same principle, in repeated instan- ces, in the courts of this and other states. Loomis V. Spencer, 2 Paige, 153; Matter of Beckwith, 3 Hun, 443; Canfield v. Fairbanks. 03 Barb. 401; Banlv v. Moore, 78 Pa. St 407; Wilder V. Weakley, 34 Ind. 181; Matthiessen V. McMahon, 38 N. J. Law, 536; Behrens v. McKenzie, 23 Iowa, 333. These cases stand on the maxim, "that he who seeks equity must do equity," and it is applicable to the case in hand; for the defendant seeks to deprive the plaintiff of its remedies to en- force the security while she retains the ben- efit of the contract This is so plainly in- equitable and unjust as to render a further discussion unnecessaiy. Nor does the fact that the borrower was subsequently, upon inquisition taken, declared to be insane, al- ter the result. Such proceeding has no ef- fect upon a contract made without such no- tice, and on the faith of the presumption tliat the person contracted with was of compe- tent understanding. The judgment should be affirmed. All concur. Judgment affirmed. 326 b i^ SEAVER V. PHELPS. ^^ (11 Pick. 304.) Supreme Judicial Court of Massachusetts. CAPACITY OF PARTIES 3 Hampden- Sept. Term, 1S31. Trover, to recover the value of a promis- sory note, pledged by the plaintiff to the de- fendant. The suit was brought on the ground that the plaintiff was in a state of insanity at the time when he made the pledge. At the trial in the common pleas, before Williams, J., the counsel for the defendant requested the judge to instruct the jury, that although they should believe the plaintiff was insane and incapable of vrndurstauding at the time of making the contract, yet that if tlie defendant was not apprized of that fact, or had no rea- son, from the conduct of the plaintiff" or from any other source, to suspect it, and did not oven-each or impose upon the plaintiff', or practise any fraud or unfairness, then the contract was not to be annulled. But the judge held this not to be law, and instructed the jury otherwise; and the jurj' returned a verdict for the plaintiff. To this opinion the defendant excepted. Mr. WUlard, in support of the exceptions. G. Bliss and G. Ashmun, opposed. WHLiDE, J., delivered the opinion of the court. The general doctrine that the eon- tracts, and other acts in pais, of idiots and insane persons, are not binding in law or equity, is not denied. Being bereft of reason and understanding, they are considered in- capable of consenting to a contract, or of do- ing any other valid act And although their contracts are not generally absolutely void, but only voidable, the law takes care effectu- ally and fully to protect their interests; and will allow them to plead their disability in avoidance of their conveyances, purchases and contracts, as was settled in Mitchell v. King- man, 5 Pick. 431. And such is probably the law in England at the present day, although the doctrine for a long time prevailed there, that no one should be allowed to plead his own incapacity and to stultify himself. These principles are not controverted by the de- fendant's counsel; but they maintain, that if the plaintiff was of unsound mind and in- capable of understanding, at the time he pledged the note to the defendant, yet if the defendant was not apprized of that fact, or had no rea.son to suspect it from the plain- tiff's conduct, or from any other source, and did not overreach him, or practise any fraud or unfairness, then that the contract of bail- ment was valid and binding, and could not be avoided in the present action. And they re- quested the court of common pleas so to in- struct the jury. That court, however, were of opinion that the law was otherwise, and we all concur in the same opinion. K It had been only proved that the plaintiff was a per- son of weak understanding, the instructions requested would have been appropriate and proper. For every man after arriving at full age, whether wise or unwise, If he be compos mentis, has the capacity and power of con- tracting and disposing of his property, and his contracts and conveyances wUl be valid and binding, provided no undue advantage be taken of his imbecility. It is sometimes difficult to determine what constitutes insanitj% and to distinguish be- tween that and great weakness of imder- standing. The boundary between them may be very narrow, and in fact often is, although the legal consequences and provisions attach- ed to the one and the other respectively are widely different. In the present case however this point is settled by the verdict, and no question is made respecting it. We are to consider the plaintiff as in a state of insanity at the time he pledged his note to the defendant; and this being admitted, we think it cannot avail him, as a legal defence, to show that he was ig- norant of the fact, and practised no imposi- tion. The fairness of the defendant's condjjct cannot silpply" The plaintin s want of "cap acity -—- The dufg hdant's counsel rely principally on a distinction between contracts executed, and those which are executory. But if this dis- tinction were material, we do not perceive how it is made to appear that the contract of bailment is an executed contract, for if the note was pledged to secure the performance of an executory contract, and was part of the same transaction, it would rather be con- sidered an executory contract. But we do not consider the distinction at aU material. It is well settled that the conveyances of a uon compos are voidable, and may be avoid- ed by the writ dum fuit non compos mentis, or by enti-y. The case of Bagster v. Earl of Portsmouth, 5 Barn. & C. 172. but more fully reported in 7 Dowl. & R. 614, has been relied on as coimte- nancing the distinction contended for, and to show its bearing on the point in question; and it is true that some of the remarks which fell from the court in giving their opinion, may be thought to have some bearing in this respect. But the point decided, and the grotmds of the decision, not only fail to sup- port the defence in this action, but may be considered as an authority in favor of the plaintiff. That was an action of assumpsit for the use of certain carriages hired by the defendant he being at the time of unsound mind, and judgment was rendered for the plaintiff, on the ground that no imposition had been practised on his part; and particu- larly because the carriages furnished appear- ed to be suitable to the condition and degree of the defendant considering the contracts of a non compos on the same footing as those of an infant; and the court say in Thompson V. Leach, 3 Mod. 310, "that the grants of In- fants, and of persons non compos, are par- allel both In law and reason." Now no one would, we apprehend, undertake to maintain that the plaintiff would have been bound, if he had been a minor when he pledged the INSANE PEliSONS AND IDIOTS. 327 note. It does not appear to have been pledged for necessaries; and all contracts of infants are either void or voidable, unless made for education or necessaries suitable to their degree and condition. And even If the note had been pledged as security for the payment of necessaries, it would not have been bind- ing if the plaintiff had been an infant For a pledge is in the nature of a penalty, and may be forfeited, and can be of no advantage to the infant, and therefore shall not bind him. If then idiots and Insane persons are lia- ble on their contracts for necessaries, they are certainly entitled to as much protection as infants. It matters not, however, how this may be, since the contract in question is not one for necessaries. In the case of Browne v. Joddrell, 1 Moody & M. 105, Lord Tenterden expressed an opinion, that in assumpsit for goods sold and delivered and for work and labor, it would be no defence that the defendant was of un- bound mind, unless the plaintiff knew of, or In any way took advantage of his Incapacity, to Impose on him. This, however, was an opinion expressed at nisi prius, and whether the opinion was followed up to the final de- cision of the cause or not, does not appear. But however this may be, the opinion is founded on the old rule, somewhat qualified, that no one can be allowed to plead his own disability or incapacity, in avoidance of his contracts. This rule having been wholly ex- ploded in this commonwealth. Lord Tenter- don's opinion can have no weight here, un- less some good reason could be shown for overruling the case of Mitchell v. Kingman; which we think cannot be done. We are aware that insanity is sometimes hard to detect, and that persons dealing with the insane may be subjected to loss and dif- ficulty; but so they may be by dealing with minors. The danger, however, cannot be great, and seems to furnish no sufficient cause for modifj-ing the rules of law in relation to Insane people, if we had any power and au- thority so to do; which we have not. Judgment of com*t of common pleas afflrm< ed. il :r CAPACITY OF PARTIES. SAWYER V. LUFKIN. (56 Me. 308.) Supreme Judicial Court of Maine, 1868. Hancock. The following is the official report: Assumpsit on an account annexed, for "la- bor in taking care" of the defendant "144 weeks, to March, 1859, at $1.50 per week," with certain credits. On the part of the plaintiff it appeared that the defendant was insane, and entirely in- capable of taking care of herself; that her family consisted of herself and two minor sons; that in May, 1856, at the request of one of the sons, who was then about eighteen years of age, the plaintiff went to the defend- ant's house, and nursed and took care of her; that she found her in a very filthy condition as to clothing, etc.; that the defendant was violent at times, and needed much care; that the guardian came to the defendant's house but two or three times during the whole time the plaintiff was there, and exercised no con- trol and furnished nothing; that the plaintiff continued there during the time mentioned In the writ; and that the defendant's sons were absent most of the time. Thomas S. Puller appeared as guardian of the defendant, duly appointed prior to the time the plaintiff's services were rendered, established his guardianship, contested the plaintiff's claim, and offered testimony tend- ing to prove thrit the guardian contracted with the defendant's sons to take care of and sup- port their mother, that in consideration there- of they were tc be paid out of her property, and that the items of credit were received from the sons. If the action was maintain- able, the action was to stand for trla'. Mr. Eaiowles, for platntifu C. J. Abbott, for defendant There Is no conflict between sections 7 and 22, c. 67, Rev. St., the former includes those under as well as those over twenty-one years of age. They have different objects; the former renders void all contracts and transfers of property made during the pendency of an ap- plication for the appointment of a guardian; the other declares all contracts and- transfers of property made by persons over twenty -one years of age and under guardianship to be imqualifi&dly and absolutely void, notwith- standing the death, resignation, or removal of the guardian. APPLETON, C. J. This, is an action for necessaries furnished the defendant, an in- sane person, over twenty-one years of age, and under guardianship. The guardian ap- pears and contests the plaintiff's claim, K necessaries are furnished a person in this condition in good faith and under circum- stances justifying their being so furnished, the person furnishing may recover. If the law were not so, the insane might perish, if a guardian, having means, should neglect or refuse to furnish the supplies needed for their support They stand in the same position as minors, and are liable for necessaries. Seaver V. Phelps, 11 Pick. 304; Leach v. Marsh, 47 Me. 548. Such is the rule of the common law. Nor is this limited liability changed by Rev. St. 1857, c. 67, § 22, which provides that "when a person over twenty years of age is under guardianship, he shall be deemed in- capable of disposing of his property other- wise than by his last will, or of making any contract, notwithstanding the death, resigna- tion or removal of the guardian," etc. This prohibits all express contracts by the insane. They cannot be liable on any express prom- ise. But their estate may be held when the law implies one. The insane must not be allowed to starve, though the guardian is dead, has resigned or been removed. The es- tate of the insane is legally, as well as eq- uitably, liable for necessaries furnished in good faith, and under circumstances justify- ing their being so furnished. McCrillis v. Bartiett, 8 N. H. 569; 1 Pars. Cont. 313 et seq. The case to stand for trial. KENT, WALTON, BARROWS, and DAN- FORTH, JJ., concurred- DRUNKEN PEKSOXS. 329 ^^ BARRETT v. BUXTON, l^i (2 Aik. 167.) Supreme Court of Vermont. Jan., 182G. Rutland. Assumpsit, on a promissory note, for the sum of one thousand dollars aud the interest. Plea, the general issue. The case was, the plaintiff and defendant had entered into a written contract for an ex- change of certain real estate, and the note was given on that occasion, by the defendant to the plaintiff, for the diJIcreuce money agreed to be paid, between the two parcels of real estate. The plaintiff afterwards executed a deed on his part, according to the contract, and tend- ered it to the defendant. The defendant re- fused to accept the deed, or pay the note. These facts being proved on the trial of the issue, the defendant olTered testimon}- tending to prove, that at the time of e.xeciitiug the said contract and note, and of making the bargain therein specitied, he was drunk, and thereby incapacitated to judge of the nature or conse- quences of said bargain. But the plaintiff ob- jecting, the court refused to admit said testi- mony, unless the same could be accompanied with testimony, tending to prove that the said drunkenness was procured by or at the instiga- tion of the plaintiff. To which decision the defendant excepted. The defendant also offered testimony tend- ing to prove, that the farm which he had agreed to convey to the plaintiff, at the time of giving said note, was actually worth as much, or more than the premises which the plaintiff had agreed to convey to the defendant in ex- change This testimony, being objected to, the court refused to receive; and to this decision also, the defendant excepted. A verdict was returned for the plaintiff; and the defendant now moved that the same be set aside, and for a new trial, for the reasons ap- parent in the exceptions aforesaid. The counsel for the defendant, in support of the motion, relied on a recent decision of *l(j8 this court in Addison countv. They*also cited 1 Chitty's PI. 470, 479.-3 Campb. 33, Pitt vs. Smith.— Bull. N. P. 172. For the plaintiff', it was contended, that drunkenness will not relieve a man, for it is a great offence and aggravates the act done, and is no excuse for him. unless it was procured by the contrivance or managonicnt of the man who received the deed, or made the contract with him. To avoid any contract made, or deed given by the party wlieu drunk, would be taking ad- vantage of his own wrong; which no man ia permitted to do. — 2 Co. Kcp. 5(58, Beverley's case. — 1 Mad. Chancerj', 2;{8. — 1 Fonblanque 60. .—3 Campb. Rep. 35.-4 Mass. ICl, Churchhill vs. Suter. Chauncey Langdon and Chs. K. "Williams, for plain till. Wm. Page and R. B. Bates, for defendant. Tlie opinion of the Court was pronounced by PRENTISS, J. This is an action upon a prom- issory note, executed by the defendant to the plaintiff for the sum of !?I000, being the differ- ence agreed to be paid the plaintiff on a con- tract for the exchange of lands. The agree- ment of exchange was in writing, and the plain- tiff afterwards tendered to the defendant a deed, in performance of his part of the agree- ment, which the defendant refused. The de- fendant offered evidence to prove, that at the time of executing the note and agreement, he was intoxicated, and thereby incapable of judg- ing of the nature and consequences of the bar- gain. The court refused to admit the evidence, without proof that the intoxication was pro- cured by the plaintiff. The question is, whether the evidence was admissible as a defence to the action, or, in other words, whether the defend- ant could be allowed to set up his intoxication to avoid the contract. This question has been already substantially decided b\' the court on the present circuit; but the importance of the question, and the magnitude of the demand in this case, have led us to give it further consideration. According to Beverley's case, 4 Co. 123, a party cannot set up intoxication in avoidance of his contract under any circumstances. Although Lord Coke admits, that a drunkard, for the time of his drunkenness, is Twn ce decreed as against the feme covert or her hoirs. By the common law a feme covert could not by uniting with her husband in any deed or conveyance, bar herself or her heirs of any estate of which she was seised in her own right, or of li^r right of dower in the real es- tate of her husband. This disability Is sup- posed to be founded in the principle that the separate legal existence of the wife is sus- [)onded during the marriage, and is strength- ened by the consideration that from the nature of the connection, there is danger that the influence of the husband may be im- properly exerted, for the purpose of forcing the wife to part with her rights In his favor. The law therefore considers any such deed or conveyance as the act of the husband only, although the wife may have united In it, and restrained its operation to the husband's in- terest in the premises, and gives to it the same effect as though he alone had executed the conveyance. The only mode in which a feme covert could at common law convey her real estate, was by uniting with her husband In levying a fine. This Is a solemn proceeding of record. In the face of the court, and the judges are supposed to watch over and protect the rights of the wife, and to ascertain by a private examination that her participation in the act Is voluntary and unconstrained. This is the principle up- on which the efficacy of a fine is put by most of the authorities. 3 Cruise, Dig. 153, tit 35, c. 10; 2 Inst. 515; 1 Vent. 121a. But whatever may be the foundation of the doc- trine, it is now fully established. Our statute declares that no estate of a feme covert residing in this state shall pass by her deed, without a previous aclvnowledg- raent made by her before a proper officer apart from her husband, that she executed such deed freely without fear or compulsion of her husband. 1 R. L. 3G9. This provision, it will be observed. Is an enlargement and not a restraint of the common law powers of a feme covert It authorizes a less formal 1 Irrelevant parts omitted. mode of conveyance than was known to the common law. It gives to her deed, when duly aclcnowledged, the same power and ef- fect as a fine; but if not acknowledged ac- cording to the directions of the statute, it de- clares that no estate shall pass by it. It loaves It as It would have stood at the com- mon law, if the statute had never been pas.**- cd, absolutely void and inoperative. It was conceded that such must be the con- sequence at law; but it was contonded that a court of equity would consider it as an agreement to convey, and if it was shown to have been voluntarily made for a valuable consideration, would compel the wife or her heirs specifically to perform It. This doctrine appears to me to be unsound in principle and unsupported by any color of authority. A feme covert, by the principles of the common law, is not only incapable of conveying her real estate by deed, but she cannot, as a gen- oral rule make a valid contract of any de- scription Ln relation either to real or personal property. This disability results from the nature of the matrimonial connection. In contemplation of law, the wife is hardly con- sidered as having a separate legal existence. She and her husband constitute but one per- .son. She cannot bind either her husband or herself by any contract. She may execute a naked power, and as to her separate estate, that is, such estate, either real or personal, as is settled on her for her separate use, with- out any control over it on the part of her husband, a court of chancery for certain pur- poses will consider her a feme sole, and her contracts in relation to It may be binding (5 Day, 496; 2 Kent, Comm. 137-141; 1 Johns. Gas. 450; 3 Johns. 77; 17 Johns. 548); but her own lands, or her right of dower In the lands of her husband are not her separate estate, within the meaning of this rule. It certainly will not be contended that the con- veyance in this case can have any greater effect than an express covenant on the part of the hu.sl)and and wife to convey; and I apprehend that an examination of the cas<">3 will show that such a covenant made during coverture would be absolutely void against the wife and her heirs, both at law and in equity. The greatest extent to which the English courts liave ever gone, is to hold that an ac- tion would lie against a wife after the death of her husband, upon a covenant of war- ranty contained in a fine, executed by her and her husband, though she was a feme covert when it was levied. This was held in the case of Wotton v. Helo, 2 Saimd. 178, and 1 Mod. 290. It was also held in some of the earlier cases, that if baron and feme joined in a lease for years by indenture of the wife':? land, and she accepted rent after his death, she was liable to the covenants in the lease. Greenwood v. Tyber, Cro. Jac. 563, 564; 2 Saund. ISO, note 9. The acceptance of the rent is a confirmation of the lease, and may be considered equivalent to a new execution 332 CAPACITY or PARTIES. and delivery, though the wife was at liberty, after her husband's death, to avoid or affirm It if she had chosen. The doctrine that a wife is bound by her covenant of warranty, entered into during coverture, is considered by Chancellor Kent (2 Kent, Comm. 140) as at war with the es- tablished principle of the common law; that she is incapable of binding hei-self by any cou tract; and a contrary doctrine has been expressly held, both in this state and in Massachusetts (Fowler v. Shearer, 7 Mass. 21; Colcord V. Swan, 7 Mass. 291). In these cases it was observed, that although the deed of a married woman is ipso facto void by the com- mon law of England, j-et by the immemorial usage of Massachusetts it would pass her es- tate, and she would be estopped by her coven- ants, though no action would lie against her for a breach of them. But the supreme court of this state, in Jaclison v. A^anderheyden, 17 Johns. 107, went still fiirther, and held that a feme covert not only was not liable to an action on the covenants contained in a deed executed and acli;nowledged according to the statute, by her and her husband, but that she was not estopped by her covenant from setting up any outstanding title to the premis- es, or any other defence. Chief Justice Spen- cer, in delivering the opinion of the court, observed, that it was a settled principle of the common law, that coverture disqualifies a feme covert from entering into a contract or covenant personally binding upon her. She may at common law pass her real property by a fine duly levied; and under our own statute, she may also in conjunction with her husband, on due examination before a com- petent officer, convey her real estate; but such deed cannot operate as an estoppel to her subsequently acquired interest in the same land. There is a class of cases in which, where the husband had expressly covenanted that his wife should join in a fine of her real estate, he has been decreed specifically to perform his covenant, or to snfFer imprisonment by way of penalty. Griffin v. Taylor, Toth. lOG; Har- rington V. Horn, 2 Eq. Cas. Abr. 17, pi. 7; Hall V. Hardy, 3 P. Wms. 187; Morris v. Stephenson, 7 Ves. 474; Withers v. Pinchard, cited in Morris v. Stephenson. In most of those cases, however, it did not appear that the wife had refused to unite in the fine; and the only reason on which the decisions are put, is, that it is to be presumed she was con- sulted by her husband before he entered into the covenant, and gave her assent to it. Lord Cowper, however, questioned this doctrine in Outread v. Round, 4 Viner, Abr. 203, pi. 4, cited m 1 Fonbl. 293, note 7, as did the master of the rolls In Daniels v. Adams, Ambl. 495. Its soundness was also denied by Chief Baron Gilbert, in his Lex Prsetoria, 24.5, and most pointedly by Lord Eldon, in Emery v. Wade, 8 Ves. 514, and in Martin V. Mitchell, 2 Jac & W. 425. It was conceded by the counsel and by Sir Thomas Plumer, the master of the rolls, that such was not the law at this day. The same opinion had been previously expressed by the same learn- ed judge, in Howell v. George, 1 Madd. Ch. 16. The case of Baker v. Childs, 2 Vern. Gl, is the only one which I have been able to find which contains the slightest intimation that a feme will be decreed specifically to execute an agreement made by her during coverture. The whole report of that case is this: "Where a feme covert, by agreement made with her husband, is to sun-ender or levy a fine, though the husband die before it be done, the court wiU by decree compel the woman to perform the agreement." No facts or circumstances are stated. Whether it was an ante-nuptial agi-eement between the husband and wife, or an agreement made by them with some third person, it is difficult to discover. It is altogether too loose and bald a case to be entitled to any consideration; and it is said of that case, in 1 Eq. Cas. Abr. G2, pi. 2, that upon looking into the register's minutes, it appeared that the court made no decree in it; but it was, by consent referred to Mr. Serjt. Rawlinson for his arbitration. It is in no point of view, therefore, an au- thority. The case of Roupe v. Atkinson, Bumb. 163, cited by the counsel for the ap- pellants, was this: A lease for a term of years was assigned to the trustees before marriage, in trust that they should malie leases for the benefit of the husband and wife. After marriage, the husband and wife assigned the lease to one Sparke for a valu- able consideration. After the death of the husband, the widow brought her biU against Sparke, to be levied against this assignment made during coverture, on the groimd that no fine had been levied. It was held that the assignment by the cestuis que trust was in the nature of an appointment, and should bind him in equity as much as if it had been made by the trustees by their direction. It bears no analo.^y to this case. The anony- mous case in Moseley, 248, is equally inap- plicable. An estate was purchased in trust for the husband and wife and their heirs, and the husband and wife joined in a mortgage to the vendor to secure a part of the purchase money. The mortgagee brought a bill of fore- closure, and the husliand and wife put in a joint answer, in which it is to be inferred no objection was taken to the mortgage on account of the coverture of the wife. The husband died ponding the suit, and the wife then moved for leave to amend her answer, in order to set up the defence that no fine had been levied. The lord chancellor refused the motion, with the single oljservation, that though the mortgage was insufficient at law, he should consider the answer that had been put in as equal to a fine. Penne v. Peacock, Cas. t. Talb. 41, was a case of a mortgage given by the husband to the plaintiff upon the MARRIED WOMEN. 33a lands of his wife, which had been conveyed by her to trustees, with his privity, before the marriage, in trust to pay the rents and profits to her separate use for her life. After the mortgage given, the husband and wife levied a line of the mortgaged premises, and both declared the uses of the fine to be to the plaintiff, for securing the principal and in- terest of the mortgage. The wife insisted in her answer that she had joined in the fine by duress of her husband, and that she had no estate in the premises upon which a fine could operate. The suggestions of duress and fraud were not sustained by the proofs, and it was held as an established doctrine, that the operation of a fixie is the same upon ti-ust as upon legal estates. That case also is entirely inapplicable to this. The precise question, however, involved In this case has arisen in a sister state, and been very ably discussed both by the counsel and the court. I allude to the case of Butler v. Buckingham, 5 Conn. 492. It was there held that an agreement by a feme covert, with the assent of her husband, for the sale of her real estate, was absolutely void at law, and could not be enforced against her in a court of equity. The defendant in that case, Mrs. Buckingham, as the widow of her former husband Joseph Bryan, had a right of dower in a particular lot of land of which he died seised. She subsequently married Gideon Buckingham, and she and her husband, in .Tanuary, 1793, agreed to sell all her interest in the premises to the plaintiffs Butler and Atwator, and joined in a penal bond to them; the condition of which was, that if she should quit-claim all her right of dower in the prem- ises to the obligees, then the bond should be void. The petition (which was in the nature of a bill in chancery) stated that the petition- ers Immediately entered into the possession of said land, and from that time to the date of the petition, a period of more than 20 years, liad had peaceable and uninterrupted posses- sion of the same; that they had made valua- ble improvements thereon, -with the knowl- edge of the defendant and her husband, in full confidence that they would perform their agreement; that Gideon Buckingham, the luisband of the defendant, died in 1810; and tliat she, upon regular and repeated applica- tions, had refu.sed to quit-claim her right of dower, and had recently commenced an ac- tion at law to recover the same from the plaintiffs. The petition prayed for a perpetu- al injunction, or tJiat the defendant should be decreed to convey her right of dower in the premises. Upon a demurrer to this peti- tion, it was held by the nine judges sitting as a court of en-ors, that the petitioners were entitled to no relief. It was observed by the court that the whole system of the common law was opposed to the doctrine on which the petition was founded; that it was a funda- mental principle of the common law that the contract of a feme covert is absolutely void, except where she conveys her estate by fine duly acknowledged, or by some matter of rec- ord, when slje is privately examined in order to ascertain whether such convej-ance is voluntary on her part; and it is pertinently said. How absurd then would it be to enforce such a conti-act to convey, made without such examination? It would be saying that a feme covei-t cannot directly convey her real estate, unless she be privately examined; and yet she can contract to convey without such ex- amination, and such contract will be enforc- ed against her. By this mode, the established law in relation to a feme covert and her real estate will be completely subverted. A feme covert, in relation to her separate property, that is, property settled to her sepa- rate use by deed or will, with a power of ap- pointment, and rendered subject to her ex- clusive control, and also with respect to prop- erty which she holds as trustee without any beneficial interest in her own right, is consid- ered as a feme sole, and her contracts in re- lation to those subjects may be valid, and a court of equity may interfere to enforce them. As to all other matters, they are absolutely void, and it is no less a moral than a legal absurdity, to say that a court of equity will enforce a void contract; it is a mere nullit>'; there is nothing to be carried into execution. The deed of a feme covert, not acknowledged according to the statute, forms no considera- tion for a promise to pay the purchase money; a note given under such circumstances is a nudum pactum and void as between the par- ties. This was expressly adjudged by the supreme court of Massachusetts, in Fowler v. Shearer, 7 Mass. 14, and must be so upon every principle applicable to contracts. If an absolute sale consummated by a deed is void, unless such deed is acknowledged in the mode prescribed by the statute, it is impossible that a contract to sell and convey at some future time should be valid. The language of the master of the rolls. Sir Thomas Plumer, in Martin v. Mitchell, 2 Jac. & W. 424, upon the general principle ap- plicable to the contracts of married women, is very strong and explicit. He says: "The acts of a married woman with respect to her estate are perfectly void. She has no dis- posing power, though she may have a dis- posing mind. An agreement signed by her with her husband cannot affect her estate, and cannot give the party a right to call upon her in a court of equity to execute a convey- ance, to bar her if she survives, and to bind her inheritance. If an agreement is signed by a person competent to contract, and is for a valuable consideration, but defective in form, there is a remedy in equity; for you have a valid contract to stand upon. But with a married woman there can be no bind- ing contract. The instrument is not good as an agreement; then how can it be said to bind her?" The same language substantially is used by the court in the case of Wright v. 334 CAPACITY OF PARTIES. Buller, 2 Ves. Jr. 676, and is to' be found in all the elementary ti'eatises upon the sub- ject. The cases of Jackson v. Stevens, 16 Johns. 114: Jackson v. Calms, 20 Johns. 303; and Doe ex dem. Depeyster v. Rowland, 8 C-ow. 277, — show verj' conclusively the opinion which has always been entertained in our courts of the absolute nuUity of a conveyance or contract made by a married woman in re- lation to her real estate. In the first case Judge Spencer observed, that the conveyance, although signed and sealed by the wife, was not her deed until she had acknowledged it according to the statute. It could not bind her as a contract. She was not confirming an inchoate and imperfect agreement. The deed took its efficacy from the period of her acknowledgment. There was nothing prior, to which it could relate. The other cases are equally strong to the same point. Vide, also, 7 Johns. 81. The bill is not framed with a view to the refunding of the purchase money paid by the appellant for the premises In question. It seeks distinctly a specific exe- cution of the agreement, or a perpetual in- jimction of any suit at law. Whether the representatives of Abner Dwelly could be compelled to refund, it is not now necessary to consider. I am in favor of affirming the decree, with costs. MAElilED WOMEN. 335 tEGORT v. PIERCE. (4 Mete 478.) Supreme Judicial Court of Massachusetts. 1842. Assumpsit on a promissory note, signed by the defendant in the presence of an attesting witness, dated October Gth, 1825, and pay- able to Putnam & Gregory, partners, of whom the plaintiff is survivor. The case was submitted to the co^rt of common pleas, on an agreed statement of facts, as follows: "The defendant was mar- ried to Varney Pierce, Jr., In 180G, who, in ISIG, became insolvent, and left her and went out of the commonwealth, and did not return till 1S18, when he came back and remained with ner about a week. He then left her and went to Ohio, where he remained till his death In 1S32. He made no provision for the support of his wife and family, after he left her in ISIG; but she supported herself and family, after he left her, by her own labor, contracting debts and making contracts in her own name. Putnam & Gregory em- ployed her to do work for them, and supplied her with necessaries for the support of her- self and family; and the note in suit was given for the balance of accoimt between the parties." The court of common pleas rendered judg- ment for the plaintiff, and the defendant ap- pealed to this court. Wells & Davis, for plaintiff. Mr. Brooks, for defendant SHAW, C. J. The principle Is now to be considered as established in this state, as a necessary exception to the rule of the com- mon law, placing a married woman under disability to contract or maintain a suit, that where the husband was never within the commonwealth, or has gone beyond its juris- diction, has wholly renounced his marital rights and duties, and deserted his wife, she may make and take contracts, and sue and be sued in her own name, as a feme sole. It is an application of an old rule of the common law, which took away the disability of cover- ture when the husband was exiled or had ab- jured the realm. Gregory v. Paul, 15 Mass. 31; Abbot V. Bayley, 6 Pick. 89. In the lat- ter case, it was held, that in this respect, the residence of the husband in another state of these United States, was equivalent to a res- idence in any foreign state; he being equally beyond the operation of the laws of the com- monwealth, and the jurisdiction of its courts. But, to accomplish this change in the civil relations of the wife, the desertion by the husband, must be absolute and complete; It must be a voluntary separation from and abandormaent of the wife, embracing both the fact and Intent of the husband to renounce de facto, and as far as he can do it, the mar- ital relation, and leave his wife to act as a feme sole. Such is the renunciation, coupled with a continued absence in a foreign state or couutry, which is held to operate like an abjuration of the realm In the present case, the court are of opin- ion, that the circumstances stated are not suflJcieut to enable the court to detcnnine whether the husband had so deserted his wife, when the note in question was given. The only facts stated are, that he was in- solvent when he went away; that he was absent, residing seven or eight years in Ohio; that he made no provision for his wife uiid her family, after 181G; and that she support- ed herself and them by her own labor. But It does not appear that he was of ability to provide for her; that he was not in corres- pondence with her; that he declared any in- tention to desert her. when he left, or mani- fested any such intention afterwards; or that he was not necessarily detained by sick- ness, imprisonment or poverty. The fact of desertion by a husband may be proved by a great variety of circumstances leading with more or less probability to that conclusion; as, for instance, leaving his wife, with a declared Intention never to return; marrying another woman or otherwise living in adultery, abroad; absence for a long time, not being necessarily detained by his occupa- tion or business, or otherwise; making no pro- vision for his wife, or wife and family, being of ability to do so; providing no dwelling or home for her, or prohibiting her from follow- ing him; and many other circumstances tend- ing to prove the absolute desertion before described. The general rule being that a married woman cannot make a contract or be sued, the burden of proof is upon the plain- tiff to show that she Is within the exceptioru In an agreed statement of facts, such fact of desertion, using this term in the technical sense above expressed, as a total renunciation of the marriage relation, must be agreed to, or such other facts must be agreed to. as to render the conclusion inevitable. If the facts stated are all that can be proved in the case, the court would consider that the pbiintifif had not sustained the burden of proof, and therefore could not have judgment See Wil- liamson V. Dawes, 9 Bing. 292; Stretton v. Bushnach, 4 Moore & S. GTS, 1 Bing. 139: Bean v. Morgan, 4 McCord, 14S. But ap- prehending that the statement may have been agreed to, under a misapprehension of the legal effect of the facts stated, and tliat other evidence may exist the court are of opinion, and do order, that the agreed statement of facts be discharged and a trial had at the bar of the court of common pleas. CAPACITY or PARTIES. WILLARD T. EASTHAM et al. I ■ ' (15 Gray, 328.) Snpreme Judicial Court of Massachusetts. March, 1860 A. G. Burke, for plaintiff. G. H. Preston, for defendants. HOAR, J. This case presents a question en- tirely novel in the jurisprudence of this com- monwealth, and which could not have come before us until the grant of the full equity powers which were conferred upon this court by a recent statute. St. 1857, c. 214. It is a bill in equity, by which the plaintiff seeks to charge the separate estate of a man-led wo- man with the payment of a promissory note made by her. The bill avers, In substance, that the brother of Mrs. Eastham purchased of the plaintiff his interest in a copartnership; that, being himself of no sufficient credit or pecuniary responsibility, he procured the note of his sister, who was then, and still is, a married woman, payable to himself, and in- dorsed it to the plaintiff in payment of the purchase money; that she made the note for this purpose, and promised to pay it at mi-i- tnrlty; that It has not been paid; and thai Mrs.' Eastham was at the date of the note, and still 1& possessed of valuable real estate, which she holds as he.- separate property. and which ici leased to two persons who art joined in the bill as defendants, who pay her rent for the same; and prays that these rents may be sequestered and appropriated to the payment of the note. The husband of Mrt. Eastham is joined as a defendant; and to this bill all the defendants demur. The question is, to what extent and imder what limitations the separate estate of a mar ried woman is to be applied in equity to the discharge of her contracts and engagements. It was held from a very early period in Eng land, that a married woman, although in- competent at law to make a valid contract, would be regarded in equity as a feme sole, in respect to her separate estate. Grlgby v. Cox, 1 Ves. Sr. 517; Peacock v. Monk, 2 Ves. Sr. 190. And the rule seems to have been universally recognized, where a married woman made an express contract respecting such an estate, of which she was entitled to the beneficial use, that she and the party with whom she contracted might have the aid of a court of equity to make the contract effectual. This doctrine Is the legitimate con- sequence of the principle that a married woman may execute a power, and so may make a valid appointment. But in Hulme v. Tenant, 1 Brown, C. C. 16, the doctrine was extended much farther; and Lord Thurlow there says that "determined cases seem to go thus far; that the general engagement of the wife shall operate upon her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estate, and rents and profits when they arise, to the satisfaction of such general engage- ment." At a subsequent stage of the case he expresses the principle thus: "I have no doubt about this principle; that if a court of equity says a feme covert may have a sepa- rate estate, the court will bind her to the whole extent as to making that estate liable to her own engagements; as, for Instance, for payment of debts, etc." The decision In Hulme v. Tenant, although repeatedly doubted by Lord Eldon, was fol- lowed and acted upon l:)y him and by all the chancellors through a long series of cases. In some of these there was an attempt to re- strict the application of the doctrine to cases of written contracts, and to treat these con- tracts as in the nature of appointments. But this distinction was subsequently abandoned as unsound; and a full discussion of the whole subject, presenting with great clearness the result of the modem English authorities, is found in the elaborate judgment of Lord Brougham, in Murray v. Barlee, 3 Mylne & K. 209, and in that of Lord Cottenham in Owens V. Dickenson, Craig & P. 58. "In all these cases," says Lord Brougham, "I take the foundation of the doctrine to be this: The wife has a separate estate, subject to her own control, and exempt from all other interference or authority. If she cannot af- fect it, no one can; and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if sLe -.vcr^ discovert. The p'ywer to affect ii being un- questionable, the only doubt that can sr-ze is whether or not she has validlj- incumber- ed it At first, the court seems to havj sup posed that nothing could touch it but some real charge, as a mortgage, or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement. B at afterwards her intention was more regarded, and the court only required to be satisfied that she intended to deal witt her separate property. When she appeared to have done so, the court held her to have charged it, and made the trustees answer the demand thus created against it. A good deal of the nicety that attends the doctrine of powers thus came to be imported into this consideration of the subject. If the wife did any act directly charging the separate estate, no doubt could exist; just as an instrument expressing to be in an execution of a power was always of course considered as made in execution of it But so, if by any reference to the estate it could be gathered that such was her intent, the same conclusion followed. Thus, if she only executed a bond, or made a note, or accepted a bill, because those acts would have been nugatorj- if done by a feme covert, without any reference to her separate estate, it was held, in the cases I have above cited, that she must be Intended to have de- signed a charge on that estate, since in no other way could the instrument thus made MARRIED WOMEN. o37 by her have any validity or operation. In the same manner as an instrument, which can mean nothing If it means not to execute a power, has been held to be 'made in execu- tion of that power, though no direct refer- ence is made to the power. Such is the prin- ciple. But doubts have been m one or two instances expressed as to the effect of any dealing whereby a general engagement only is raised; that is, where she become.s indebted without executing any written instrument at all. I own I can perceive no reason for draw- ing any such distinction. If, in respect of her separate estate, the wife is in equity taken as a feme sole, and can cliarge it by instru- ments absolutely void at Liw, can there be any reason for holding that her liability, or, more properly, her power of affecting the separate estate, shall only be exercised by a written Instrument? Are we entitled to in- vent a rule, to add a new chapter to the stat- ute of frauds, and to require writing where that act requires none? Is there any equity, reaching written dealings with the property, which extends not also to dealing in other ways, as by sale and delivery of goods? Shall accessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing? No such dis- tinction can bfc taken upon any conceivable principle." In Owens v. Dickenson, Lord Cottenham says of a written agreement: "It would have been operative upon the feme coverfs Separate estate, but not by way of the exe- eutioa of a power, although that has been an expression sometimes used, and, as I appre- hend, very Inaccurately used, in cases where the court has enforced the contracts of mar- ried women against their separate estate. It cannot be an execution of the power, be- caust" it neither refers to the power nor to the subject-matter of the power; nor, in- deed, in many of the cases has there been any power existing at all. Besides, as It was argued In Murray v. Barlee, if a mar- ried woman enters into several agreements of this sort, and all the parties come to have satisfaction out of her separate estate, they are paid pari passu; whereas, if the instru- ments took effect as appointments under a power, they would rank according to the priorities of their dates. It Is quite clear therefore that there is nothing in such a transaction, which has any resemblance to the execution of a power. What it is, it is not easy to define. It has sometimes been treated pa a disposmg of the particular es- tate; but the contract is silent as to the separate estate, for a promissory note is mere- ly a contract to pay, not saying out of what It is to be paid, or by what means it is to be paid; and it is not correct, according to legal principles, to say that a contract to pay Is to be construed into a contract to pay out of a particular property, so as to con- HOPK.&BUCAS.CONT. — 22 stltute a lien on that property. Equity lays hold of the separate property, but not by virtue of any tiling expressed in th<' contract; and it is not very cons stent with correct nrin- ciples to add to the contrar-t that whicii the party has not thought fit to introduce into it. The view taken of the matter by Lord Thur- lovv, in Huline v. Tenant, is more correct. According to that view, the separate prop- erty of a married woman being a creature of equity, it follows that if she has a power to deal with it, she has the other power inci- dent to property in general, namely, the pow- er of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabili- ties, but by laying hold of the separate prop- erty, as the only means by which they can be satisfied." The result ot the English decisions would therefore seem to be that the separate es- tate of a married woman is answerable foi all her debts and engagements, to the full ex- tent to which It Is subject to hei ovn dis- posal. The rule adopted by most of tht'* coarlc in the United States has been materially dif- ferent from that established in England; and the general current of American authoritioc supports the principle that a married woman has no power in relation to her separate es tate but such as Is expressly conferred in the creation of the estate; and that her sep- arate estate is not chargeable with her debts or obligations, unless where a provision for that purpose is contained in the instrument creating the separate estate. These authori- ties are very fully collected and commented on in the notes to the case of Hulme v. Ten- ant, 1 White & T. Lead. Cas. Eq. (Hare & W. Ed.) 324. The decisions In the state of New Yort approximate somewhat more nearly to the English rule, but with some Important modi- fications. The courts of chancerj- have thert- held that a feme r^overt, with respect to he- separate estate, is so far to be regarded as a feme sole that she may dispose of it without the consent of her trustee, unless she le specially restrained by the instrument under which she acquires it; that if she enters into an agreement, and sufficiently indicates her intention to affect by it her separate estate, a court of equity will apply it to the satis- faction of sucJi an engagement; but that her general personal engagement will not of Itself affect her separate property; and therefore, where creditors do not claim under ajiy charge or appointment made in pursuance of the instrument of settlement, they must show that the debt was contracted either for the benefit of her separate estate, or for her own benefit upon the credit of the separate es- tate; and that such estate is not to be char- ged upon any implied undertalang. Jaqnea 338 CAPACITY or PARTIES. V. Church, 17 Johns. 548; Dyett v. Coal Co., 20 Wend. 570; Gardner v. Gardner, 7 Paige, 112; Curtis v. Engel, 2 Sandf. Ch. 2S7; Knowles v. McKamley, 10 Paige, 343; Cruger V. Cruger, 5 Barb. 227. In Vanderheyden v. Mallory, 1 N. Y. 453, it is said that any debt contracted by a married woman for hereelf or her husband will generally be regarded as prima facie evidence of an intention to charge her separate estate. But in the recent case of Yale V. Dederer, IS N. Y. 2G5, the ques- tion arose of the liability of the wife's sep- arate estate for the payment of a note which she had signed as a surety with her hus- band, the whole consideration having been received by him; and the court of appeals held that >t was not liable. The relation of married women to their sep- arate estates in this commonwealth has been materially affected by statute, especially so far as concerns the case at bar, by the stat- utes of 1845 (chapter 208) and 1855 (chapter 304). By the provisions of these statutes, a man-led woman may, by a marriage settle- ment, or by any deed, gift, or devise, made to her by any person except her husband after her marriage, take and hold any prop- erty, real or personal, to her sole and sep- arate use, free from the intervention or con- trol of her husband; and may hold in like manner any property belonging to her at the time of her marriage; and may contract, sue and be sued, and have and be subject to the same remedies in law or equity in relation to property so held, and to any contracts re- specting it made by her, as if she were un- married She may also engage in any trade or business on her own account, and may sue and bp sued as if sole in regard to her trade, business, labor, services and earnings. It Is obvious from these provisions, that if the contract which we are considering were to be regarded, in conformity with the Eng- lish decisions, as a contract relating to the separate estate of the wife, merely because it would be otherwise wholly ineffectual and •without validity, the plaintiff has made no case calling for the aid of a court of equity, because he has a plain, adequate and com- plete remedy at law. A married woman may now be sued upon any contract relating to her separate estate, and a judgment may be recovered against her upon it, and her sep- arate estate may be attached In the suit nnd afterwards taken on execution, in liKe man- ner as if she were sole. But aside from this objection to the plain- tiff's suit, we cannot assent to the correct- ness of the principle upon which it is found- ed. We can see no sufficient reason for hold- ing a contract which is whoUy void at law, from which neither the married woman nor her estate receives any benefit, and which does not in any manner refer to hor separate property or undertake to make any charge upon it, to be a contract relating to such property. If the giving of a note or a bond could be considered as equivalent to an appointment or charge upon her separate estate, and the source of the equity against her be foimd in such a charge or appointment, there would seem to be no well founded distinction be- tween a contract by her as a surety and a contract as principal. But against this the reasoning in Murray v. Barlee and Owens v. Dickenson, before cited, is quite conclusive. And we think, upon mature and full con- sideration, that the whole doctrine of the liability of he.' separate estate to discharge her general engagements rests upon grounds which are artificial, and which depend upon implications too subtle and refined. The true limitations upon the authority of a court of equity in relation to the subject are stated with great clearness and precision In the elaborate and weU reasoned opinions of the court of appeals in New York in the case of Yale V. Dederer. And our conclusion is that when by the contract the debt is made ex- pressly a charge upon the separate estate, or is expi-essly contracted upon its credit, or when the consideration goes to the benefit of such estate, or to enhance its value, then equity will decree that it shall be paid for such estate or its income, to the extent to which the power of disposal by the married woman may go. But where she is a mere surety, or makes the contract for the accom- modation of another, without consideration received by her, the contract being void at law, equity will not enforce it against her estate, unless an express instrument makes the debt a charge upon It. Demurrer sustained, and bill dismissed, with costs. MARRIED WOMEN. 339 OWEN V. CAWLEY.i (3G N. Y. 600.) Court of Appeals of New York. 1SG7. Appeal from liie supreme court. The action was for jjrofessioual sen'icea rendered to a married woman for the benetit of her separate estate, and the relief sought was that the same be declared an equitable lien on such separate estate, and that so much thereof as might be necessary be appropriated to the satisfaction of the claim. On the first hearing, before Judge Mitchell, the referee, judgment was rendered for the plaintiffs for a greater amount than on the last trial. That judgment was reversed at the general term, for the reasons appearing in the report of the case. 3G Barb. 52. The order of reversal procured on that oc- casion provided that the evidence taken on the first trial should stand as evidence on the new trial, and that either party should be at liberty to add such further evidence as they might be advised. Neither party appealed from this order, and, so far as ap- pears, it was mutually acquiesced in and acted upon by both. On the last hearing, before the same ref- eree, judgment was recovered by the plain- tiffs, pursuant to the prayer of the complaint; the amount of the lien, charged on the de- fendant's estate, being adjudged to be $61.25, with interest from the 30th of May, 1859, and costs. The defendant appealed to the general term of the supreme court in the First district, and the judgment was unanimously affirmed, the opinion of the court being delivered by Mr. Justice Sutherland. The following facts were admitted in the verified pleadings, as amended: (1) That the plaintiffs were attorneys and counselore, in partnership, in the city of New York. (2) That the appellant, Jane F. Cawley, was the wife of the defendant, Samuel B. Cawley. (3) That she was possessed, in her own right, separate from her hnsband, of a large amount of real and personal property in this state, including a house and lot in Queens county, and a store of goods in New York, In which she had conducted the ship chandlery business from a period before the 1st of Jan- uary, 1858, down to the commencement of the suit; and that, in the course thereof, In the years 1S58 and 18.59, and prior to the commencement of this action, she had vari- ous sums due and owing to her by various individuals, ships and vessels. (4) That during these periods, and previous thereto, her husband carried on the business, as her agent, and, as such, managed and conducted the same in all its details. The complaint also alleged the professional services and disbursements of the plaintiffs. at her request and that of her agent; the 1 ConCTirring opinioa of Parker, J., omitted. amount due therefor, and the fact that such services were rendered and such disburse- ments made, on the credit and for the ben- efit of her separate estate. These allegations were put in issue by the answer. The referee found, among other things, as a matter of fact, that all the services alleged were rendered, and that all the facts staled in the complaint were true, with certain ex- ceptions as to amounts, etc., not material to be stated. lie found, as matter of fact, that all the sen-ices embraced in the amount he allowed were rendered for the benefit of Mrs. Cawley and of her separate estate; that she employed the plaintiffs to render them, through the agency of her husband, to whom she had intrusted the whole management of the business of her separate estate, having fuU confidence in his ability to act for her, and not restricting his authority in any way, but requesting him "to let law alone, if pos- sible, and to do a cash business." This re- quest was not made known to the plaintiffs. The prosecution of each of the actions and proceedings was expedient, and there was no prospect that the demands would be collect- ed without suit. The defendant attempted to establish a special agreement that no compensation should be made for services which did not result in collecting the money; but the ref- eree found, as matter of fact, that no such agreement was made. A question was raised whether some of the proceedings which were taken in the names of nominal assignees of the appellant, for particular reasons disclosed by the evidence, were not really for the benefit of such as- signees; but the referee found, as matter of fact, that they were so taken for the benefit of Mrs. Cawley, and of her separate estate, and by the direction of the husband as her agent. He also found, that each of the claims pre- sented by the plaintiff, arose out of sales by her husband as her agent, of goods belnng- ing to her separate estate, except in a single instance. In that case the claim was for goods sold by J. C. Sleight & Co.. the previ- ous proprietors of the store, and which, with other goods and demands, had been absolute- ly assigned to her, in payment of a debt for advances from her separate estate. The defendant attempted to prove a subse- quent agreement between Sleight and his creditors, for the purpose of showing that the transfer to her was only colorable: but the referee found that such agreement was not satisfactorily proved. In the course of the trial several questions arose as to the admission of evidence; and exceptions were also taken to the refusal of the referee to dismiss the complaint, and to his ultimate conclusions of law upon the facts as found. D. McMahon, for the appellant Thomas G. Shearman, for the respondent 340 CAPACITY OF PARTIES. PORTER, J. The principal question in tills case arises under tlie statutes of 1S4S and lSi9, in relation to the property of married women. The primary purpose of these acts was to enable every feme covert to hold prop- erty in her own right, without the intei-ven- tion of trusts or marriage settlements. It was neither their design nor effect to place such property beyond the reach of all reme- dial process, nor to secure to the wife a mere doi-mant and barren title, with none of the usual incidents of the jus disponendi. Under their operation she succeeded to the right which a trustee could have exercised under the old law, to protect the interests thus vested by all the usual agencies, and to en- force and defend her claims in the tribunals of law and equity. While her antecedent disabilities arising from the conjugal rela- tion were not wholly removed, they were necessarily so far modified as to secure her in the beneficial enjoyment of the new in- terests she was permitted by law to acquire. Yale V. Dederer, IS N. Y. 272, 278, 22 N. Y. 451; Bucliley v. WeUs, 33 N. Y. 522. She was still left without capacity to bind herself personally by a naked promise, note or bond; but she could exercise the right of an owner by subjecting her separate estate to charges in equity, for services rendered at her request for the benefit of such estate; or she could dedicate it to other purposes if she chose to evince her intention by a formal and de- liberate pledge. The mere fact however that she was the owner of a separate estate, did not affix to it, under these acts, a liability in equity in respect to her engagements at large. Such a lien could only be deduced from an express or implied agreement to that effect on her part, or from some equivalent obliga- tion resulting from her acts by operation of law. Where services are rendered for a mar- ried woman by her procurement, on the credit And for the benefit of her separate estate, there Is an implied agreement and obligation springing from the nature of the considera- tion, which the courts will enforce by char- ging the amount on her property as an equi- table lien. Yale v. Dederer, 18 N. Y. 276, 282. 284. 22 N. Y. 4G0. Where a charge Is created by her own express agreement, for a good consideration, though for a purpose not beneficial to her separate estate, or even for the sole benefit of her husband, she is bound in equity by the obligation which she thus deliberately chooses to assume. Yale v. De- derer, 28 N. Y. 276, 283, 22 N. Y. 451. It was at one time a mooted question in the courts, whether under the statutes above re- ferred to, and prior to the act of 1800, the common-law disabilities of the wife were so far modified as to permit her to manage her estate through the inteiTention of agents and employees; but it is now entirely settled that she acquired in this respect, the usual rights Incident to absolute ownership, and that she could avail herself of any agency, even that of her husband, with the same effect as If they were not united in marriage. Knapp y, Smith, 27 N. Y. 277. 280; Buckley v. Wells, 33 N, Y. 518, 522; Smith v. Sweeney, 35 N. Y. 294, 295; Draper v. Stouvenel, Id. 513; Abbey v. Deyo, 44 Barb. 382. In this case the referee finds as matter of fact, that the plaintiffs were employed by the appellant through her authorized agent, to whom she had intrusted the entire man- agement of her business and estate. She was as effectually bound by the act done in her name, as if she had personally engaged the professional services of the respondents. She accredited her husband to the public, as her general agent in all that pertained to her business; and as the plaintiffs had no notice of any private restrictions upon his authority, the fact that any such were given would have been unavailing, even if she had succeeded in proving it. Bank v. Astor, 11 Wend. 87; Johnson v. Jones, 4 Barb. 369, 373. It Is also found as matter of fact that all the sei^ices In question were rendered for Mrs. Cawley, and for the benefit of her sepa- rate estate. Her coim^el Insists that such of them as appertained to suits in which there was a failure to collect the amount of the claims, should not be deemed beneficial in their character. No such distinction can be maintained. The rule of equity under which the estate of a married woman is sub- ject to a charge in respect to services ren- dered for its benefit, has reference to the sub- ject-matter and nature of such services, and not to the contingent and ultimate gain or loss of the parties procuring them. A build- er, who at the request of a feme covert, erects a dwelling on her land, performs a ser- vice for the benefit of her estate within the meaning of the rule; and its nature would not be changed, though the edifice should afterward be destroyed by fire. An employee who tills her land for hire, has an equitable claim to compensation; and if he discharges his duty faithfully, he has a remedy for his wages, though her fields should prove un- productive. In this case the claims in ques- tion formed a part of the separate estate, and the services were for its direct and immediate benefit. Dillaye v. Parks, 31 Barb. 132. The appellant preferred not to prosecute the suits in person; and the attorneys who conducted them in her behalf, having served her with suitable skill and fidelity, are not responsible for any defects in her proof, or for the in- ability of her debtors to respond to their ob- ligations. It follows from those views, that on the principal questions involved in the case, the referee was right in his conclusions. The plaintiffs were properly allowed to- prove the admissions of the appellant on the previous hearing. They constituted a por- tion of the evidence, which under the order entered at the general term, either party was entitled to read, and this right was exer- cised on the second trial by both. Where an absolute and unqualified admission is made in a pending cause, whether by written s-tipu- MARRIED WOMEN. 841 latlon of t±ie attomoy or as matter of proof on the hearing, it cannot be retracted on a subsequent triai, unless by leave of the court No cause for granting such leave was shown, and there was ao allegation of mistalce, im- position or surprise. People v. Ilathbun, 21 Wend. 543, 544; Elton v. Laikins, 24 E. C. L. 372; Doe v. Bird. 32 N. Y. 41G; Langley V. Earl of Oxford, 1 Mees. & W. 508. It is claimed in behalf of the appellant that the referee should not have pennitted the reading, on the new trial, of the evidence on the former hearing, as provided in the or- der of reversal. We see no reason why the parties are not concluded by that order, in which both of them seem to have acquiesced. No appeal from It has ever been taken, no motion was made to modify it, and both par- ties have acted under It Vail v. Remsen, 7 Paige, 207. It was read In evidence without objection, and no qiiestion In regard to it was raised before the referee. Portions of the proof, introduced under It were objected to on other and specific grounds; but the posi- tion now taken, that the whole was inadmis- sible, was not even suggested on the trial. Upon the facts disclosed by the case, we do not think the objection tenable; but if it had been well founded, It would be too late to raise It on appeaL Newton v. Harris, G N. Y. 34.^; Judd v. O'Brien, 21 N. Y. 100. In the course of the trial, objections were taken to proof of the acts and declarations of the defendant's agent in relation to the legal proceedings conducted by the plaintiffs. They constituted a part of the res gestie, and as his agency was conceded, they were ad- missible as acts and declarations of his prin- cipal. McCotter v. Hooker, 8 N. Y. 503; Fleming v. Smith, 44 Barb. 554. Other grounds of error are alleged, but they seem to us plainly untenable. The judgment should be affirmed, with costs. PARKER, J., concurs. 342 CAPACITY OF PARTIES. DO\>/nING t. MX. WASHINGTON KOAD *- ^. CO. (40 N H. 230.) Supreme Court of New Hampshire. Merri- mack June Term, 18G0. Assumpsit, brought by Lewis Downing & Sous, to recover the price of eight omnibxises, and a model for the same, one light wagon, and one baggage wagon, made for the de- fendants, under a contract entered into by D. O. Macomber, president of the defendant corporation in their behalf. The light wagon was made and sent to one Cavis, the agent for building the road, and was used by him in making it. The omni- buses and baggage wagon were intended to be used in conveying passengers up and down the mountain, after the road was com- pleted. The omnibuses were constructed in a peculiar way, and are not fit for use on ordinary roads. By their act of incorporation, passed July 1, 1853, the corporation was empowered to lay out, make, and keep in repair, a road from such point in the vicinity of Mt. Wash- ington as they may deem most favorable, to the top of said mountain, etc., and thence to some point on the northwesterly side of said mountain, etc., to take tolls of pas- sengers and for carriages, to build and own toll-houses, and to take land for their road. The coi-poration was duly organized, and at a meeting of the directors on the 31st of August, 18o3, before said contract was made, it was "voted that the president be the legal agent and commissioner of the company;" and his compensation as such was fixed. "The president" was "directed to proceed with the letting of the work for the con- struction of the road, * * * the obtaining the right of way," and "what other action he shall deem proper for the interests of the company," etc. A committee was appointed "to settle in relation to the right of way, etc., and in re- lation to land on \ Inch to build stables and other buildings, for the use of the road, and also for building all such stables and houses as may be necessary for the operations of the company." It appeared that by an additional act, passed July 12, 18.50, the corporation were authorized "to erect and maintain, lease and dispose of any building or buildings, which may be found convenient for the accommo- dation of their business, and of the horses and carriages and travellers passing over said road." The defendants denied the authority of Macomber to make such a contract in behalf of the corporation, and the power of the corporation tmder its charter either to au- thorize or to enter into such a contract. BELL, C. J. Corporations are creatures of the legislature, having no other powers than such as are given to them by their charters. or such as are incidental, or necessary to caxi-y into effect the pui-poses for which they were established. Trustees v. Peas- lee, 15 N. H. 330; l^erriue v. Chesapeake Canal Co., 9 How. 172. In giving a construc- tion to the powei-s of a corporation, the lan- guage of the charter should in general nei- ther be construed strictly nor liberally, but according to the fair and natural import of it, with reference to the purposes and ob- jects of the corporation. Enfield Bridge v. Hartford R. R., 17 Conn. 454; Strauss v. Eagle Co., 5 Ohio St. 39. If the powers conferred are against com- mon right, and trench in any way upon the privileges of other citizens, they are, in cases of doubt, to be construed strictly, but not so as to impair or defeat the objects of the incorporation. In the present case the power to take the lands of others, and to take tolls of trav- ellers, must be strictly construed, if doubts should arise on those points; but it is not seen that the other grants to the defendant corporation should not receive a fair natural construction. The charter of the Mt. Washington Road empowers them to lay out, make and keep in repair, a road from Peabody River Valley to the top of Mount Washington, and thence to some point on the northwest side of the mountain. It grants tolls on passengers and can-iages, and authorizes them to take lands of others for their road, and to build and own toll-houses, and erect gates, and appoint toll-gatherers to collect their tolls. The re- maining provisions contain the ordinary pow- ers of corporations relating to directors, stock, dividends, meetings, etc. Laws 1853, c. 1486. This chapter confers the usual powers heretofore granted to turnpike corporations, and no others. The most natural and satis- factory mode of ascertaining what are the powers incidentally granted to such compa- nies, is to inquire what powers have been usually exercised under them, without ques- tion by the public or by the corporators. It may be safely assumed that the powera which have not heretofore been found neces- sarj', and have not been claimed or exer- cised under such charters, are not to be con- sidered generally as incidentally granted. Such charters have in former years been vei-y common in this and other states, and they have not, so far as we are aware, been understood as authorizing the C9rporations to erect hotels, or to establish stage or trans- portation lines, to purchase horses or car- riages, or to employ drivers in transporting passengers or freight over their roads; and no such powers have anywhere been claimed or exercised under them. We are, therefore, of opinion that the power to establish stage and transportation lines to and from the mountain, to purchase carriages and horses for the purpose of carrying on such a busi- ness, was not incidentally granted to the de- CORPORATIOXS. 843 fendant corporatiou by their charter. State V. Commissioners of Mansfield, 23 N. J. Law, 510. But it is contended that the power to malce this contract is conferred by the act in amendment of the charter, passed July 12, 1S56. By this act the corporation may "erect and maintain, lease and dispose jf any building or buildings which may be found convenient for the accommodation of their business, and of the horses and carriages and travellers passing over their said road." By their business, which the buildings to be erected were designed to accommodate, it is said tlie legislature must have intended some permanent and continuing business beyond that of merely building and maintaining a road; and that it could be no other th;m that of erecting a hotel on the mountain, and es- tablishing lines of carriages, for the pur- pose of carrying visitors up and down the mountain. But the foundation of this Implication is very slight. The express grant is of an au- thority to erect, etc., buildings, not of all kinds, but such as may be found convenient for the accommodation of their business, and of travellers, etc. The business here re- ferred to must be understood to be such as they are by their charter authorized to en- gage in. If nothing had been said of horses and travellers, there could hardly be any foimdation for the idea that a hotel could have been contemplated by the legislature. Buildings suitable for the accommodation of their toll-gatherers and workmen employ- ed on their road, would probably be thought evei-ything the legislature intended to au- thorize by this additional act. Connected as this authority now is with travellers, horses, and carriages, there is scarce a pre- tence for argument that this additional act goes any further than the original act, to authorize a stage and transportation com- pany. It is not unlikely that some of the projectors of this enterprise intended to se- cure much more extensive rights than those of a turnpike and hotel company, but it seems certain they have not exhibited this feature of their case to the legislature so dis- tinctly as to secure their sanction, and the charter and its amendment as yet justifies them In no such claim. The power of buying and selling real and personal property for the legitimate pur- poses of the corporation, and the power of contracting generally for the same purposes, within the limits prescribed by the charter, being granted, we understand the principle to be, that their purchases, sales, and con- tracts generally, will be presumed to be made within the legitimate scope and pur- pose of the corporation, until the contrary appears, and that the burden of showing that any contract of a corporation is beyond its legitimate powers, rests on the party who objects to it. Indiana v. Woram, 6 Hill, 37; Ex parte Peiu Iron Co., 7 Cow. 540; Farmers' Loan & Trust Co. v. Clowes, 3 N. Y. 470; Farmers' Loan & Trust 'Co. V. Curtis, 7 N. Y. 400; Beers v. Pha?nix Glass Co., 14 Barb. 3.j8. If a corporation attempt to enforce a con- tract made with them in a case beyond the legitimate limits of their corporate power, that fact, being shown, will ordinarily con- stitute a perfect defence. Green v. Seymour, 3 Sandf. Ch. L'S.1; Bangor Boom v. Whiting, 29 Me. 123; Life & Fire Ins. Co. v. Mechan- ic Fire Ins. Co., 7 Wend. 31; New York, etc., Ins. Co. v. Ely, 5 Conn. 500. And if a suit is brought upon a contract alleged to be made by the corporation, but which is shown to be beyond its coiporate power to enter into, the contract will bo re- garded as void, and the coi-poration may avail themselves of that defence. Beach v. Fulton Bank, 3 Wend. 573; Albert v. .Sav- ings Bank, 1 Md. Ch. Dec. 407; Abbot v. Baltimore, etc., Co., Id. 542; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; Baron v. Mis- sissippi Ins. Co., 31 Miss. 110; Bank of Gen- esee V. Patchin Bank. 13 N. Y. 315; Gage v. Newmarket, 18 Q. B. 457. The contract set up in this case, was made not by the corporation itself, by a vote, nor by an agent expressly authorized to sign a contract already drawn, but it was made by the president of the corporation, acting under an appointment as their general agent; and it is argued that he was fully author- ized by votes of the corporation to bind them by such a contract as the present; but it is not necessary to consider this question, as we think it settled that the powers of the agents of corporations to enter into contracts in their behalf are limited, by the nature of things, to such contracts as the corpora- tions are by their charters authorized to make. This principle is distinctly recognized in McCullough v. Moss, 5 Denio, 567, over- ruling the case of Moss v. Rossie Lead Co., 5 Hill, 137, and in Central Bank v. Em- pire Stone-Dressing Co., 2t3 Barb. 23; Bank of Genesee v. Patchin Bank, 13 N. Y. 315. The same want of power to give authority to an agent to contract, and thereby bind the corporation in matters beyond the scope of their corporate objects, must be equally conclusive against any attempt to ratify such contract. What they cannot do directly they cannot do indirectly. They cannot bind themselves by the ratification of a contract which they had no authority to make. 5 E>enio, 567, above cited. The power of the agent must be restricted to the business which the company was authorized to do. Within the scope of the business which they had power to transact, he, as its agent, may be authorized to act for it, but beyond that he could not be authorized, for its powers extend no further. This view seems to us entirely conclusive against the claim made for the omnibuses and model, and probably for the baggage wagon. 344 CAPACITY OF PARTIES. As to the light wagon, that may stand on a different ground. Such a wagon might be useful and necessai-y for the use of the agent of the company, in conducting the un- doubted business of the corporation,— the building and maintaining the road. We are unable to a;ssent to the position taken in the argument, that a ratification of part is a ratification of the whole contract. While the corporation may be restricted from ratifying a contract beyond the scope of the objects of the corporation, there could be no such objection as to any matter clearly with- in their power. The other contracting party might have a right to reject such ratification, claiming that the contract is entire, and if not ratified as such, it should not be made good for a part only. But if they claim the bene- fit of the partial ratification, the corporation can hardly object. CORPORATION'S. 845 THOMAS v. RAILROAD COMPANY. (101 U. S. 7L) Supreme Court of United Suites. Oct Term, 187'J. Error to the circuit court of the United States for the Eastern district of Peuusyl- vania. This was an action of covenant, by George W. Thomas, Alfred S. Porter, and Nathaniel F. Chew, against the West Jersey Railroad Company, and they, to maintain the issue on their part, offered to prove the following facts: On the eighth day of October, 18G3, the Millville and Glassboro Railroad Company, a coi-poration incorporated by the legisla- ture of New Jersey, March 9, 1859, entered Into an agreement with them, whereby It was stipulated that the company should, and did thereby, lease its road, buildings, and rolling-stock to them for twenty years from the first of August, 18<>3, for the consid- eration of one-half of the gross sum col- lected from the operation of the road by the plaintiffs during that period; that the company might at any time terminate the contract and retalie possession of the rail- road, and that in such case, if the plaintiffs so desired, the company would appoint an arbitrator, who, with one appointed by them, should decide upon the value of the contract to them, and the loss and damage incurred by, and justlj ana eqaitably due to them, by reason of such termination thereof; that In event of a difference of opinion between the arbitrators, they were to choose a third, and the decision of a majority was to be final, conclusive, and binding upon the par- ties. On the 10th of April, 1867, the legislature of New Jei-sey passed an act entitled "A supplement to the act entitled 'An act to incorporate the Millville and Glassboro Rail- road Company.' " It was therein enacted that it should be unlawful for the direct- ors, lessees, or agents of said railroad to charge more than the sums therein named for passengers and freight respectively. The plaintiffs claim that at the date of the passage of this act, It was well linown that they were acting under the said agreement of Sth October, 1SG3. On the 12th of October, 1SG7, articles of agreement were entered into between the Millville and Glassboro Railroad Company and the West Jersey Railroad Company, the defendant, whereby It was agreed that the former should be merged Into and consol- idated with the latter. In November, lSt)7, a written notice was served by the Millville and Glassboro Rail- road Company upon the plaintiff's, putting an end to the contract and to all the rights thereby granted, and notifying them that the company would retake possession of the railroad on the flrst day of April, 1868. On the ISth of March, 1863, the legislature of New Jersey passed an act whereby it was enacted that, upon the fullillincnt of certain preliminaries, the Millville and Glassboro Railroad Companj should be consolidated with the West Jersey Railroad Company, "subject to all the debts, liabilities, and ob- ligations of both of said companies." The conditions required by that act were ful- filled, and the railroad was duly deUvered by the plaintiffs to the West Jersey Railroad Company on the first of April, 1808. On April 13 18G8, and again on May 22 of the same year, notices to arbitrate ac- cording to the teims of the agreement were served by the plaintiffs upon the Millville and Glassboro Railroad Company, and immediate- ly thereafter upon the West Jersey Railroad Company. The latter company refused to com- ply with the terms of either notice; but sub- sequently, on the 21st of December, 1808, an agreement of submission was entered in- to between the plaintiffs and the latter com- pany, whereby H. F. Kenney and Matthew Baird were appointed arbitrators, with power to choose a third, to settle the controversy between the parties. These arbitrators, dis- agreeing, called in a third, who joined with said Baird in an award, by which the value of the unexpired term of the lease, and the loss sustained by reason of the termination thereof, to and by the plaintiffs, was ad- judged to be the sum of $159,437.07; and the West Jersey Railroad Company was or- dered to pay that sum to the plaintiffs. This award was subsequently set aside in a suit in equity brought in New Jersey. The plaintiffs further offered to prove their compliance In all respects with the terms of the lease. Its value, and the loss and damage they had sustained by reason of its termina- tion as aforesaid. The court excluded the offered testimony on the ground that the lease by the Millville and Glassboro Railroad Company to the plaintiffs was ultra vires, and directed the jury to return a verdict for the defendant The plaintiffs duly excepted, and sued out this writ They assign for error that the court below erred,— 1. In excluding from the consideration of the jury the offered evidence of the said agreement between the MillviUe and Glass- boro Railroad Company and the plaintiffs; of the acts of assembly of New Jersey, one an act to incorporate the Millville and Glass- boro Railroad Company, approved the 9th of March, 1859, and another an act entitled "A supplement to the act entitled 'An act to incorporate the MillviUe and Glassboro Rail- road Company,' passed the tenth day of April, 1SG7," and the acts referred to therein; of the fact that it was well known at the date of the last-named act that the plaintiffs were lessees acting imder the said contract and agree- ment: and of all the ether acts of the leg- islature of the state of New Jersey relating 346 CAPACITY OF PARTIES. to the West Jersey Railroad Company, and to the Millville and Glassboro Raih-oad Com- pany. 2. In directing the jury that their verdict must be for the defendant. 3. In entering judgment upon the verdict for the defendant. Mr. Justice MILLER, after stating the case, delivered the opinion of the court. The ground on which the court held the contract to be void, and on which the ruling is supported in argument here, is that the contract amounted to a lease, by which the railroad, rollmg-stock, and franchises of the corporation were transfeiTed to plaintiffs, and tliat such a contract was ultra vires of the company. It is denied by the plaintiffs that the con- tract can be fairly called a lease. But we know of no element of a lease which is wanting in this instnament. "A lease for years is a contract between lessor and lessee, for possession of lands, etc., on the one side, and a recompense by rent or other considera- tion on the other." 4 Bac. Abr. 632. "Any thing corporeal or incorpoi'eal lying in livery or in grant may be the subject-matter of a lease, and, therefore, not only lands and houses, but commons, ways, fisheries, fran- chises, estovere, annuities, rent-charges, and all other incorporeal hereditaments are in- cluded in the common-law rule." Bouv. Law Diet. "Lease"; 1 Washb. Real. Prop. 310. The railroad and all its appurtenances and franchises, including the right to do thfi business of a railroad and collect the proper tolls, are for a period of twenty years leased by the company to the plaintiffs, from whom In return it receives as rent one-half of all the gross earnings of the road. The usual provi- sion for a right of re-entry on the failure to perform covenants in addition to the special right to terminate the lease on notice, and the usual covenant for repairs and proper running of the road, equivalent to good husbandry on a farm, are inserted in the instrument. The provision for the complete possession, control, and use of the property of the com- pany and its franchises by the lessees is per- fect. Nothing is left in the lessor but the right to receive rent. No power of control in the management of the road and in the exer- cise of the franchises of the company is re- served. A solitary exception to this state- ment, of no value in the actual control of af- fairs, is found in the sixth clause of the lease, which covenants that the lessees will dis- charge any one in their service on the request of the corporation, evidenced by a resolution of the board of directors. But while we are satisfied that the contract Is both technically and in its essential charac- ter a lease, we do not see that the decision of that point either way affects the question on which we are to pass. That question is, whether the railroad company exceeded its powers in making the contract, by whatever name it may be called, so that it is void. It is, perhaps, as well to consider this ques- tion in the order of its presentation by the learned counsel for plaintiffs, upon whom the burden of showing the error of the circuit court devolved as well as the duty of proving one of the following propositions: 1. The contract was within the powers granted to the railroad company by the act of the New Jersey legislature under which it was organized. 2. That if this be not established, the lease was afterwards ratified and approved by an- other act of that legislature. 3. That if both these propositions are found to be untenable, the contract became an ex- ecuted agreement under which the rights ac- quired by plaintiffs should be legally respect- ed. The authority to make this lease is placed by counsel primarily in the following lan- guage of the thirteenth section of the com- pany's charter: "That it shall be lawful for the said com- pany, at any time during the continuance of its charter, to make contracts and engage- ments with any other corporation, or with in- dividuals, for the transporting or conveying any kinds of goods, produce, merchandise, freight, or passengers, and to enforce the ful- fillment of such contracts." This is no more than saying: "You may do the business of carrying goods and passen- gers, and may make contracts for doing that business. Such contracts you may make with any other corporation or with individuals." No doubt a contract by which the goods re- ceived from railroad or other carrying com- panies should be carried over the road of this company, or by which goods or passengers from this road should be carried by other railroads, whether connecting immediately with them or not, are within this power, and are probably the main object of the clause. But it is impossible, under any sound rule of construction, to find in the language used a permission to sell, lease, or transfer to others the entire road and the rights and franchises of the corporation. To do so is to deprive the company of the power of making those con- tracts which this clause confers, and of per- forming the duties which it implies. In Ashbury Railway Carriage & Iron Co. v. Riche (decided in the house of lords in 1875> L. R. 7 H. L. 6.53, the memorandum of asso- ciation, which, as Lord Cairns said, stands under the act of 1862 in place of a legislative charter, thus described the business which the company was authorized to conduct: "The objects for which this company is established are to make, sell, or lend on hire railway- carriages and engines, and all kinds of rail- way plant, fittings, machinery, and rolling- stock; and to carrj' on the business of me- chanical engineers and general contractors; to purchase and sell as merchants timber, coal. CORPORATIONS. 847 metals, or other materials; and to buy and sell any such materials on commission or as agents." This company purchased a conces- sion for a railroad in Belgium, and entered into a contract for its construction, on which it paid large sums of money. The company was sued afterwards on its agreement with Riche, the contractor, and the contract was held valid in the exchequer chamber by a majority of the judges, on the ground that while it was in excess of the power conferred on the directors by the memorandum, it had been made valid by ratification of the share- holders, to whom it had been submitted. The house of lords reversed this judgment, holding unanimously that the contract was beyond tlie powers conferred by the memo- randum above recited, and being beyond the powers of the association, no vote of the shareholders whatever could make it valid. The case is otherwise important in its rela- tion to the one before us, but it is cited here for its parallelism in the construction of the clause defining the powers of the company. If a memoi-audum which describes the par- ties as engaging in furnishing nearly all the materials, machinery, and rolling-stock which enter into the construction of a railroad and its equipments, and then empowers them to carry on the business of mechanical engineers and general contractors, cannot autliorize a contract to build a railroad, surely the author- ity to build a railroad and to contract for car- rying passengers and goods over it and other roads is no authority to lease it, and with the lease to part with all its powers to another company or to individuals. We do not think there is anything in the language of the char- ter which authorized the making of this agreement. It is next insisted, in the language of coun- sel, that though this may be so, "a corporate body may (as at common law) do any act which is not either expressly or impliedly pro- hibited by its charter; although where the act is unauthorized by the charter a share- holder may enjoin its execution, and the state may, by proper process, forfeit the charter." We do aot concur in this proposition. We take the general doctrine to be in this country, though there may be exceptional cases and some authorities to the contrary, that the powers of corporations organized under legis- lative statutes are such and such only as those statutes confer. Conceding the rule ap- plicable to all statutes, that what is fairly im- plied is as much granted as what is expressed, it remains that the charter of a corporation Is the measure of its powers, and that the enu- meration of these powers implies the exclu- sion of all others. This class of subjects has received much consideration of late years in the English courts, and counsel have relied largely on the decisions of those courts. Among the eases cited by both sides is East Anglian Ry. Co. v. Eastern Counties Ky. Co., 11 C. B. 775. In that case the Eastern Counties Railway Company had made a contract In which, among other things, It covenanted to take a lea.se of seveial other railroads whose compa- nies had Introduced into parliament a bill for consolidation under the name of East Anglian Railways Company, and to assume the pay- ment of the parliamentary expenses of this act of consolidation. This covenant was held void as beyond the power conferred by the charter. "They cannot," said the court, "engage in a new trade, because they are incorporated only for the purpose of making and maintaining the Eastern Counties Railway. What addi- tional power do they acquire from the fact that the undertaking may in some way bene- fit their line? Whatever be their object or prospect of success, they are still but a corporation for the purpose only of making and maintaining the Eastern Counties Rail- way; and if they cannot embark in new trades because they have only a limited au- thority, for the same reason they can do nothing not authorized by their act and not within the scope of their authority." This case, decided in 1851, was afterwards cited with approval by the lord chancellor in ls.57 in delivering the opinion of the house of lords in Eastern Counties Ry. Co. v. Hawkes, 5 H. L. Cas. 331; and it is there stated that it was also acted on and recognized in the exchequer chamber in McGregor v. Deal & Dover Ry. Co., 22 Law J. Q. B. 69. IS Q. B. G18. Both these cases are cited approv- ingly in the opinion of Lord Cairns in the Ashbury Case on appeal in the house of lords. This latter case, as decided in the excheq- uer chamber (L. R. 9 Exch. 224). is much relied on by counsel for plaintiffs here as showing that, though the contract may be ultra vires when made by the directors, it may be enforced if afterwards ratified by the shareholders or if partly executed. But In the house of lords, where the case came on appeal, this principle was over- ruled unanimously in opinions delivered by Lord Chancellor Cairns, Lords Selbome, Chelmsford, Hatherly, and O'Hagan, and the broad doctrine established that a contract not within the scope of the powers con- feiTod on the corporation cannot be made valid by the assent of every one of the shareholders, nor can It by any partial per- formance become the foundation of a right of action. It would be a waste of time to attempt to examine the American cases on the sub- ject, which are more or less conflicting, but we think we are warranted in saying that this latest decision of the house of lords represents the decided preponderance of au- thority, both in this country and in England, and is based upon sound principle. There is another principle of equal impor- tance .and equally conclusive against the va- 348 CAPACITY OF PARTIES. Udity of this contract, which, if not coming exactly within the doctrine of ultra vires as we have just discussed it, shows very clearly that the railroad company was with- out the power to make such a contract. That principle Is that where a corporation, like a railroad company, has granted to it by charter a franchise intended in large measure to be exorcised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which under- takes, without the consent of the state, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the state, and is void as against public policy. This doctrine is asserted with remarkable clear- ness in the opinion of this court, delivered by Mr. Justice Campbell, in New York & M. L. R. Co. V. Winans, 17 How. 30. The cor- poration in that case was chartered to build and maintain a railroad in Pennsylvania by the legislature of that state. The stock in it was taken by a Maryland corporation, called the Baltimore and Susquehanna Rail- road Company, and the entire management of the road was committed to the Maryland company, which appointed all the officers and agents upon it, and furnished the roll- ing stock. In reference to this state of things, and its effect upon the liability of the Pennsylvania corporation for infringing a patent of the defendant in error, Winans, this court said: "This conclusion [argument] implies that the duties imposed upon the plaintiff by the charter are fulfilled by the construction of the road, and that by alienat- ing its right to use, and its powers of con- trol and supervision, it may avoid further responsibility. But those acts involve an overturn of the relations which the charter has arranged between the corporation and the community. Important franchises were conferred upon the corporation to enable it to provide facilities for communication and intercourse, required for the public conven- ience. Corporate management and control over these were prescribed, and corporate responsibility for tlieir insufficiency provided as a remuneration to the community for their grant. The corporation cannot absolve itself from the performance of its obliga- tions without the consent of the legislature. Beman v. Rufford, 1 Sim. (N. S.) 550; Winch v. Birkenhead, L. & C. J. Ry. Co., 13 Eng. Law & Eq. 506." And in the case of Black v. Delaware & R. Canal Co., 22 N. J. Eq. 130, Chancellor Zab- riskie says: "It may be considered as set- tled that a corporation cannot lease or alien any franchise, or any property necessary to perform its obligations and duties to the state, without legislative authority." Id. 399. For this he cites some ten or twelve de- cided cases in England and in this country. This brings us to the proposition that the legislatiu-e of New Jersey has given its consent by an act which amounts to a rati- fication of this lease. That act is entitled "A supplement to the act entitled 'An act to incorporate the Mill- ville and Glassboro Railroad Company," ap- proved April 10, 1867; and its only purpose was to regulate the rates at which freight and passengers should be carried. It reads as follows: "That it shall be unlawful for the direct- ors, lessees, or agents of said railroad to charge more than three and a half cents per mile for the carrying of passengers, and six cents per ton per mile for the carrying of freight or merchandise of any descrip- tion, unless a single package, weighing less than one hundred pounds; nor shall more than one-half of the above rate be charged for carrying any fertilizing materials, either in their own cars or cars of other companies running over said railroad: provided, that nothing contained in this act shall deprive the said railroad company, or its lessees, of the benefits of the provisions of an act en- titled 'An act relative to freights and fares on railways in the state,' approved March 4, 1858, and applicable to all other railroads in this state." It may be fairly inferred that the legisla- ture knew at the time the statute was passed that plaintiffs were running the road, and claiming to do so as lessees of the corpora- tion. It was not important for the purpose of the act to decide whether this was done under a lawful contract or not No inquiry was probably made as to the terms of that lease, as no information on that subject was needed. The legislature was determined that who- ever did run the road and exercise the franchises conferred on the company, and under whatever claim of right this was done, should be bound by the rates of fare es- tablished by the act Hence, without under- taking to decide in whom was the rigLit to the control of the road, language was used which included the directors, lessees, and agents of the railroad. The mention of the lessees no more im- plies a ratification of the contract of lease than the word "directors" would imply a disapproval of the contract. It is not by such an incidental use of the word "lessees" in an effort to make sure that all who col- lected fares should be bound by the law, that a contract unauthorized by the charter, and forbidden by public policy, is to be made valid and ratified by the state. It remains to consider the suggestion that the contract, having been executed, the doc- trine of ultra vires is inapplicable to the case. There can be no question that, in many instances, where an invalid contract which the party to it might have avoided CORPORATIONS. 84"J or refused to perform, has been fully per- formed on both sides, whereby money has been paid or property chanj^ed hands, the courts have refused to sustain an action for the recovery of the property or the mon- ey so transferred. In regard to corporations the rule has been well laid down by Comstock, C. J., in Parish v. Wheeler, 22 N. Y. 4»4, that the executed dealings of corporations must be allowed to stand for and against both par- ties when the plainest rules of good faith require it. But what is sought In the case before us Is the enforcement of the unexecuted part of this agreement So far as it has been executed, namely, the four or five years of action under it, the accounts have been adjusted, and each party has received what he was entitled to by its terms. There re- mains unperformed the covenant to arbitrate with regard to the value of the contract. It is the damages provided for in that clause of the contract that are sued for in this action. Damages for a material part of the contract never performed; damages for the value of a contract which was void. It is not a case of a contract fully executed. The very nature of the suit Is to recover dam- ages for its non-performance. As to this it Is not an executed contract. Not only so, but It Is a contract forbidden by public policy and beyond the power of the defendants to make. Having entered In- to the agreement, it was the duty of the company to rescind or abandon it at the earliest moment. This duty was independ- ent of the clause in the contract which gave them the right to do it Though they de- layed its performance for several years, it was nevertheless a rightful act when it was done. Can this performance of a legal duty, a duty both to stockholders of the company and to the public, give to the plaintiffs a right of action? Can they found such a right on an agreement void for want of cor- porate authority and forbidden by the policy of the law? To hold that they can is, in our opinion, to hold that any act performed in executing a void contract makes all its parts valid, and that the more that is done under a contract forbidden by law, the stronger is the claim to Its enforcement by the courts. We cannot see that the present case comes within the principle that requires that con- tracts, which, though invalid for want of corporate power, have been fully executed, shall remain as the foundation of rights acquired by the transaction. We have given this case our best consid- eration on account of the importance of the principles involved In its decision, and after a full examination of the authorities we can see no error in the action of the circuit court Judgment affirmed. a/- CAPACITY OF PAllTIES. u BRADLEY v. BALLARD. (55 III. 413.) Supreme Court of Illinois. Sept. Term, 1870. Appeal from circuit court. Cook county. LAWRENCE, C. J. This was a bill in chanceiT brought bj' Bradley against Bal- lard and others, for the purpose of enjoining the prosecution of a suit pending in the cir- cuit court of Cook county, against a coi-pora- tioa called "The North Star Gold and Silver Mining Company," in which complainant was a stockholder, upon certain promissory notes given by said company, and also to can- cel certain other notes not yet in suit. The court sustained a demurrer to the bill, and the complainant not asking to amend, a de- cree of dismissal was entered. It appears by the averments in the bill that «arious persons associated themselves to- gether in the city of Chicago in the year 18GG, and filed their articles of organization in the circuit court of Cook county, under the general incorporation law, whereby they be- came incoi-porated under the title above stat- ed. The statute requires the certificate to state the town and county in which the opera- tions of a company thus Incoi-porated are to be carried on, and the certificate of this com- pany stated that their operations were to be carried on in the city of Chicago, in the county of Cook and state of Illinois. It fur- ther appears from the bill that the company thus organized engaged in mining in the ter ritory of Colorado, and in the prosecution of that work borrowed large sums of money, for which the notes described in the bill were given, except some that are alleged to have been given for official salaries. It is not claimed that they were not given for a full and fair consideration, but their cancellation Is sought upon the gi-ound that they were given for money borrowed to enable the com- pany to prosecute a business which it had no IKiwer to prosecute, and that this purpose was known to the lenders of the money. It Is insisted that, although the business of the corporation was mining, yet, by the terms of its certificate, it had no power to prosecute that business beyond the limits of the city of Chicago, or certainly not beyond the limits of this state. Whether this is the proper construction of the statute is a question we do not find it necessary to decide. Conceding that it is, and that this corporation had no power to engage in mining in Colorado, we are still of opinion the complainant has not, by his bill, entitled himself to relief. He became a stock- holder to the extent of $25,000, and from the name and character of the company he must have known it was organized for the purpose of mining beyond the limits of this state. He subsequently became one of the directors of said company, and it is a legitimate infer- ence from the bill that at least a part of these debts were created while he was thus participating in the control of the company. There is no pretence in the bill that he ever, in any mode, objected to the mining opera- tions of the company, in Colorado, or to the borrowing of money therefor, and the fair, and, indeed unavoidable inference, from the nature of the company, the connection of complainant with it, and the silence of the bill in this regard, is that he did not object. On what ground, then, can he ask a court of equity to enjoin the collection of these notes? It is said by counsel for complainant, that a corporation is not estopped to say, in its defence, that it had not the power to make a contract sought to be enforced against it, for the reason, that if thus estopped, its pow- ers might be indefinitely enlarged. While the contract remains unexecuted on both sides, this is undoubtedly true; when, under cover of this principle, a corporation seeks to evade the payment of borrowed money, on the ground that, although it had power to borrow money, it expended the money bor- rowed in prosecuting a business which it was not authorized to prosecute, it is pressing the doctrine of ultra vires to an extent that can never be tolerated, even though the lender of the money knew that the corporation was transacting a business beyond its chartered powers, and that his money would be used in such business, provided the business itself was free from any intrinsic immorality or il- legality. Neither is it correct to say that the applica- tion to corporations of the doctrine of equi- table estoppel, where justice requires it to be applied, as when, imder a claim of cor- porate power, they have received benefits for which they refuse to pay, from a sudden dis- covery that they had not the powers they had claimed, can be made the means of en- abling them indefinitely to extend their pow- ers. If that were true. It would be an in- superable objection to the application of the doctrine, even for the purpose of preventing injustice in individual cases. But it is not true. This doctrine is applied only for the purpose of compelling corporations to be hon- est, in the simplest and commonest sense of honesty, and after whatever mischief may belong to the performance of an act ultra vires has been accomplished. But while a contract remains executory, it is perfectly true that the powers of corporations cannot be extended beyond their proper limits, for the purpose of enforcing a contract. Not only so, but on the application of a stock- holder, or of any other person authorized to make the application, a court of chancery would interfere and forbid the execution of a contract ultra vires. So too, if a contract ultra vires is made between a corporation and another person, and, while it Is yet wholly unexecuted, the corporation recedes, the oth- er contracting party would probably have no claim for damages. But if such other party proceeds in the performance of the contract. COHPORATIONS. 851 expending his money and his labor In the production of values which the coi-poration appropriates, we can never hold the cuiijora- tiou excused from payment, on the plea that the contract was beyond its power. Talie, for example, the case of a corpora- tion chartered to build a railway from Chi- cago to llock Island. Under such a charter, the company would have no power to build steamboats for the pui-pose of running a line of such vessels between llock Island and St Louis. But suppose the company, notwith- standing the want of power, should make a contract for the building of a vessel, and it is built by the contractor, and accepted and used by the railway. Could any court per- mit the corporation, when sued for the value of the vessel, to excuse itself from payment, on the ground that, although it has and uses the steamer, it had no authority to do so by its charter? Or, suppose that instead of hav- ing a vessel built by a contractor it employs a superintendent to build it, and hires me- chanics by the day. Could it escape the pay- ment of their wages, on the ground that it had employed them in a work ultra vires V In cases of such character, courts simply Bay to corporations: You cannot in this case raise the question of your power to make the contract. It is sufficient that you have made it, and by so doing have placed in your cor- porate treasury the fruits of others' labor, and everj' principle of justice forbids tliat you be permitted to evade payment by an appeal to the limitations of your charter. We are aware that cases may be cited in apparent conflict with the principles here an- nounced, but the tendency of recent decisions is in harmony with them. While courts are incUned to maintain with vigor the limita- tions of corporate action, whenever it is a question of restraining the corporation in ad- vance from passing beyond the boundaries of their charters, they are equally inclined, on tl)e other hand, to enforce against them contracts, though ultra vires, of which they have received the benefit. This is demand- ed by the plainest principles of justice. 2 Kent, Comm. (11th Ed.) p. 3S1, note; Zabris- kie V. Railroad Co., 23 How. 3S1: Bissell v. Raflroad Co., 22 N. Y. 25S; Cary v. Railroad Co., 29 Barb. 35; Parish v. Wheeler, 22 N. Y. 494; De Groff v. Thread Co., 21 N. Y. 124; Argentl v. San Francisco, 16 Cal. 255; McClner v. Railroad, 13 Gray, 124; Chap- man V. Railroad Co., 6 Ohio, 137; Hall v. In.surance Co., 32 X. H. 297; Railroad Co. V. Howard. 7 Wall. 413. If tlie complainant in this case had, as a stockholder, asked a court of chanceiy to enjoin this corporation from mining in Col- orado, it would have examined the charter, and if it had arrived at the conclusion that such mining was beyond the powers derived from filing the certificate in question, under our statute, would have Issned the Injunc- tion. But this he did not do. On the con- trary, he has participated in the work, and so long as there was hope of gain, he was willing the money should be borrowed by which the work was to be carried forward. The borrowing of the money was not, in itself, an act ultra vires, nor was the giving of the notes. The money was not bon-owed to be used for an illegal or immoral puiT'Ose. The lenders have been guilty of no violation of law, nor wrong of any kind. The corpora- tion has received their money and used it for a purpose, which, whether ultra vires or not, was unquestionably the sole ijurpose for which the corporators associated themselves together, and for which this complainant be- came a stockholder. Justice requires the coi-poration to repay the money it has thus borrowed and expended. What we have said appUes only to private corporations, organized for pecuniary gain. If, to increase their profits they embark in enterprises not authorized by their charter, still, as to third persons, and when neces- sary for the advancement of justice, the stockholders will be presumed to have as- sented, since it is in their power to restrain their officers when they transgress the lim- its of their chartered authority. But munic- ipal corporations stand upon a different ground. They are not organized for gain, but for the purpose of government, and debts illegally contracted by their officers -annot be made binding upon the taxpayers, from the presumed assent of the latter. There are some vague charges in the bill of conspiracy between the holders of the notes upon which suit has been brought and some of the directors, but no facts are al- leged showing, or tending to show, any wrongful or fraudulent intent. The alleged conspiracy seems merely to be an under- standing between the holders of the notes and the majority of the dirt-ctors, by which the latter will allow the former to obtain judgment on their notes, and we do not per- ceive why they should not. If the complain- ant lias had the misfortune to associate him- self \\ith p'^rsons of less pectmiary responsi- bility than himself for the purpose of carry- ing on a hazardous business, in which heavy debts have been incurred, it is a misfortune of which the courts cannot relieve him. mere- ly on a vague and general charge of con- spiracy against his feUow stockholders or directors. No facts are alleged in this bill which can be made the foundation of relief. As before remarked, the counsel of appel- lant has presented his case simply on the question of corporate power. We are of opinion the demurrer was properly sustained to the bill. Decree affirmed. Mr. Justice SCOTT dissents. CAPACITY OF PARTIES. //T UNION BANK v. JACOBS. (6 Humph. 515.) Supreme Court of Tennessee. Sept Term, 1845. On the 28th day of September, 1841, Ja- cobs, as president of the Hiwassee Railroad Company, executed a note, binding that com- pany to pay to said Jacobs the sum of $5,641, negotiable and payable at the branch of the Union Bank at Knoxville, foiu- mouths after date. The note was indorsed by Jacobs to Trautwine, and by Trautwine to the Union Bank, and delivei-ed to the president and di- rectors of the bank, and discounted by the bank for the benelit of the Hiwassee Com- pany. At maturity, the note was protested, and suit brought by the bank against Jacobs, as indorser, in the circuit court of Knox coun- ty. It was tried by Judge Lucky and a jury at the February term, 1845. He charged the jui-y that the Hiwassee Company had no power to borrow money, and that the note given in execution of a void contract was null and void also. The jury returned a verdict for the defend- ant, and plaintiff appealed. TURLEY, J. At the session of the legis- lature of the state of Tennessee, in the year 1835-183G, tlae Hiwassee Railroad Company was created a body coi-porate, with perpetual succession, with power to sue and be sued, plead and be impleaded, and to possess and enjoy all the rights, privileges, and immuni- ties, with power to make such by-laws, ordi- nances, rules, and regulations, not inconsist- ent with the laws of this state and the Unit- ed States, as shall be necessary to the well ordering and conducting the affairs of said company; and be capable in law of pur- chasing, acceptmg, selling, and conveying es- tates, real, personal, and mixed, to the end, and for the purpose of facilitating the inter- course and transportation from Knoxville, East Tennessee, through the Hiwassee dis- trict, to a point on the southern boundary of Tennessee, to be designated by commissioners as the most practicable route to intersect the contemplated raUroad from Augusta to Mem- phis. By the 2d section of the act of incorporation the capital stock ot the company is limited to six hundred thousand dollars, in shares of one hundred doUars each; and it is provided, that, so soon as four thousand shares are subscrib- ed, the corporate power of said company shall commence, and have as fuU operation as if the whole of the shares comprising the capi- tal stock were subscribed. By the 4th section it is provided, that there shall be paid on each share subscribed, but not till after four thousand shares shall have been subscribed, such sum as the president and directors, or a majority of them, may di- rect, and in such instalments, not exceeding one fourth of the subscription in any one year: Provided, no payment shall be demand- ed until at least thirty days' notice shall have been given by the said president and directors in the newspapers printed in the towns of Knoxville and Athens, of the time and place of payment; and if any subscriber shall fail or neglect to pay any instalment or part of said subscription thus demanded, for thirty days next after the time it fell due, the stock on which it was demanded, together with the amount paid in, may, by the president and directors, or a majority' of them, be declared forfeited, and, after due notice, shall be sold at auction for the benefit of the company, or they may waive the forfeiture after thu-ty days default, and sue the stockholders, at their discretion, for the instalments due. By the 13th section, the president and di- rectors of said company are invested with all the powers and rights necessary for the build- ing, constructing, and keepmg in repair of a raihoad from Knoxville, East Tennessee, through the Hiwassee disti-ict, to a point on the southern boundary of Tennessee, on the nearest, best, and most practicable route,— the road to have as many tracks as may be deemed necessary by the board of directors, but not to be more than one hundred feet wide, which the company may purchase, or cause tlie same to be condemned for the use of the road, or any less breadth, at the dis- cretion of the directors; and they may cause to be made, or contract with others for mak- ing of said road or any part thereof; ajud they, or their agents, or those with whom they may contract for making any part of said road, may enter upon, use, and exca- vate any land which may be laid out for the site of said road, for the erection of ware- houses, engine arbors, reservoirs, booths, sta- bles, offices, and mechanics' shops, or other works necessary or useftil in the construction and repair thereof; and may fix scales and weights, build bridges, lay rails, make em- bankments and excavations; may use any earth, ground, rock, timber, or other material which may be wanted for the construction and repair of any part of said road; and may construct and acquire all necessary steam- engines, cars, wagons, and carriages for transportation on said road by horses or steam power, and all necessary apparatus for the same. Sections 15 and 16 make provision for con- pensation and payment by the comijany to individuals for land or other property appro- priated under the provisions of the charter to the making of said road, and incidental in- juries done by reason of its construction. These are all the provisions of the charter that need be adverted to, for the purpose of investigating the questions of law arising in the case. Under the provisions of this char- ter, the company was legally organized and proceeded to construct the road; much work was done in excavations, embankments, building bridges, etc., and much money ex- pended therefor, and in the payment of the ! salaries of the different officers necessary for CORPORATIONS. 353 the snperlntondenre thereof. In the con- sti-uction, the couipany became indebted to one Kennedy Lonergin, a contractor for yrad- inff the road, in the sum of five thousand dollars; for the payment of which, It execut- ed, by its president, its promissory note to S. D. Jacobs, negotiable and payable at the of- fice of discount and deposit of the Union Bank of the state of Tennessee at Knoxville; this note was negotiated by S. D. Jacobs to .loiin C. Trautwine, and by him to the Union Hank, and the proceeds passed by the bank to the credit of Kennedy Lonergin. When the note fell due, it was protested for non- payment, and due notice thereof given to the indorsers, Jacobs and Trautwine. They fail- ing to pay, suit was instituted thereon against S. D. Jacobs, the first indorser, in the circuit ccjurt of Knox county, and the same was brought to trial before a jury, at the Febru- ary term thereof, 1845, when the circuit judge charged the jury, "that the note was drawn by the Hiwassee Railroad Company, in viola- tion of Its coi-porate powers; that it was, therefore, null and void; and that the plain- tiffs were not entitled to recover." Under this charge, a verdict was retimied in favor of the defendant, and judgment rendered thereon against the plaintiffs, to reverse which, a writ of error is prosecuted to this court. It is contended against the plaintiff's right to recover that there is no power given, either expressly or by necessary implication, by the charter to the Hiwassee Railroad Company, to borrow money or to execute promissory notes; and that, therefore, the note executed and indorsed to the bank is void, both as against the maker and indors- ers, and that no action can be maintained against them thereon. The construction of the powers of corpora- tions has been a fruitful source of litiga- tion, both in the courts of Great Britain and the United States. In the earlier cases they were construcora- tion. 3 P. Wms. 419. And courts of equity, HOPK. SEL. CAS. COXT. —23 in this respect, seeming to follow the law have decreed a specific performance of au agreement made by a major pan of a cor- poration, and eut<'r<(l in the corporation books, although not under the corporate seal. 1 Fonbl. Eq. 305. This technical doc- trine has in more modem times been en- tirely broken down." The same judge, Id continuation in the same case, observes: "The doctrine that a corporation could not contract except under its seal, or, in other words, could not make a promise, if it had ever been fully settled, m\i>:t have been pro- ductive of great mischief. Indeed, as soon as the doctrine was established, that its regularly appointed agents could contract ia their name without seal, it was impossible to support it; for, otherwise, the party who trusted such contract would be without remedy against the corporation. Accord- ingly, it would seem to be a sound rule of law, that whenever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts, made by its authorized agents, are express prom- ises of the corfwration; and all duties im- posed upon them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie. 3 Brown Ch. 2G2; Doug. 524; 3 Mass. 3G4; 5 Mass. 89, 491; 6 Mass. 50." Whatever of strictness may have existed in the earlier cases, in restricting their power of contracting to the express grant of authority, has been also greatly re- laxed, and the doctrine upon the subject been made more conformable to reason and necessity, the powers granted to corpora- tions being now construed like all other grants of power, not according to the letter, but the spirit and meaning. In Ang. & A- Corp. p. 192, § 12, it is said, "A corporation having been created for a specific purpose, can not only make no contracts forbidden by its charter, which is, as it were, the law of its nature, but in general can make no contract which is not necessary, either di- rectly or incidentally, to enable it to an- swer that purpose. In deciding, therefore, whether a corporation can make a particu- lar contract, we 'are to consider, in the first place, whether its chatter, or some statute binding upon it, forbids or permits it to make such a contract; and if the charter and valid statutory law are silent upon the subject, in the second place, whether the power to make such a contract may not be implied on the part of the corporation, as directly or incidentally necessary to enable it to fulfil the purpose of its existence, or whether the contract is entirely foreign to that purpose. In genei-al, an express au- thority is not indispensable to confer upon a corpora tioq the right to become drawer, Indorser, or acceptor of a bill of exchange, or to become a party to any other negoti- able paper. It is sufficient, if it be implied as the usual and proper means to accom- 354 CAPACITY OF PARTIES. plish the purposes of the charter. Chit. BiUs (5th Ed.) 17-21; Baily, BiUs (5th Ed.) p. 69. c. 2, § 7; Story. Bills Exch. p. 94, § 79. In the case of Mum v. Commission Co., 15 Johns. 52, Spencer, J., who delivered the opinion of the court, says: 'It has been strongly urged, that, under the act of in- corporating this company, they could neith- er draw nor accept bills of exchange. Their power is undoubtedly limited; they are re- quired to employ their stock solely in ad- vancing money, when required, on goods and articles manufactured in the United States, and the sale of such goods and ar- ticles on commission. The acceptance of a bill is an engagement to pay money; and the company may agree to pay or advance money at a future day, and they may en- gage to do this by the acceptance of a bill. When a charter or act of incorporation and valid statutory law are silent as to what contracts a corporation may make, as a gen- eral rule it has power to make all such con- tracts as are necessary and usual in the course of business, as means to enable it to attain the object for which it was created, and none other. The creation of a corpora- tion for a specific purpose implies a power to use the necessai-y and usual means to effectuate that purpose.' " Ang. & A. Corp. p. 200. § 3. Mr. Story, in his treatise on Bills of Ex- change (page 95), speaking of the power of corporations to draw, indorse, and accept bills of exchange, says: "It is sufficient if it be implied as a usual and appropriate means to accomplish the objects and purposes of the charter. But when the drawing, indorsing, or accepting such bills is obviously foreign to the purposes of the charter, or repugnant thereto, then the act becomes a nullity, and uot binding on the corporation." In the case of People v. Utica Ins. Co., 15 Johns., Thompson, C. J., who delivered the opinion of the court, says, at page 383, "An Incorporated company has no rights but such as are specially granted, and those that are necessary to carry Into effect the powers so granted." In the case of Mott v. Hicks, a quantity of wood was purchased for the president and directors of the Woodstock Glass Com- pany by Whitehead Hicks, the president thereof, for which he executed the promis- sory note of the company at six months. It appears, from a reference in argument to the charter of the company, that there was no' clause authorizing it to issue bills or notes, or making such, if issued, binding and obligatory upon the company; yet it was held by the court, that an action would lie against the corporation upon the note, it having been executed by its legally author- ized agent, acting within the scope of the legitimate purposes of such corporation. 1 Cow. 513. In the case of Hayward v. Pilgrim Soc, 21 Pick. 270, it was held that the tx-ustees of a society incorporated for the purposo of building a monument, in virtue of their au- thority to manage the finances and property of the society, were held competent to bind the society by a promissory note through the agency of their treasurer. These authorities fully establish the pro- position, that, in the construction of char- ters of corporations, the power to contract, and the mode of contracting, is not limited to the express grant, but may be extended by implication to all necessary and proper means for the accomplishment of the pur- poses of the charter. Now, what are neces- sary and proper means? Mr. Story, as we have seen, says, if the means are usual and appropriate, the implication of power arises. Story, Bills, 95. Chief Justice Marshall, in the case of Mc- Cullock V. State of Maryland, 4 Wheat. 413, says: "But the argument on which most reliance is placed, is drawn from the peculi- ar language of this clause of the constitu- tion. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the government, but such only as may be necessary and proper for carrying them into execution. The word 'necessary' is considered as con- trolling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indis- pensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves congress, in each case, that only which is most direct and simple. Is it true, that this is the sense in which the word 'necessary' is always used? Does it always import "an absolute physical necessity, so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is con- venient or useful or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of the human mind, that no word conveys to it, in all situations, one single definite idea, and nothing is more common than to use words in a figurative sense. Almost all com- positions contain words which, taken in their rigorous sense, would convey a mean- ing different from that which is obviously intended. It is essential to just construc- tion, that many words, which import some- thing excessive, should be understood in a more mitigated sense,— in that sense which common usage justifies. The word 'neces- sary' is of this description. It has no fixed character peculiar to itself. It admits of all degrees of comparison, and is often con- CORPORATIONS. 855 nected with other words, which Increase or diminish the impression the mind rocoives of the urf^ency it imports. A thing may be nocossary, very necessary, absolutely or in- dispensably necessary. To no mind would the same idea be conveyed by these several phrases." In conclusion upon this subject, he says, page 421, same case: "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be car- ried into execution, Avhich will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitu- tional." Now, if this be true doctrine In relation to the constitution of the United States, surely it will not be contended that a more stringent rule will be applied in the con- struction of the powers of a corporation, than is applied in the construction of the powers of congress under the constitution of the United States. To apply these principles, as established by the authorities cited, to the case un- der consideration. The Hiwassee Railroad Company is chartered to construct a rail- road, a thing of itself necessarily involving a heavy expenditure of money; but in ad- dition thereto, it is empowered to sue and be sued, to acquire and hold, sell, lease, and convey estates, real, personal, and mixed, which necessarily involves the power of making contracts for the same. How shall these contracts be made, both for the con- struction of the road and the purchase of the property? It is argued, that the capi- tal stock of the company is the only means provided for the payment, and that no other can be resorted to for that purpose; or, in ether words, that it must pay cash for eveiT contract, for that no power is given, by which it may contract upon time; for if it may create a debt, of necessary conse- quence it may create written evidences of that debt, and these may be either promis- sory notes or bills of exchange. It is true, that the capital stock of the company is the source from whence an ultimate pay- ment of the debts of the company must be made, but to hold that a sufficient amount of this stock must always be on hand, to pay immediately for every contract made, would be destructive of the operations of the company. By the provisions of the charter, not more than one-fourth of the stock shall be called for in any one year, and this upon thirty days" notice; and if, within thirty days after such notice, the amount called for be not paid, the company is authorized to take steps against the de- llnciuent stockholders, to enforce payment. Now, it is obvious that it never was intend- ed that all the stock should be paid in be- fore the company commenced operations. The early completion of the road was a de- sirable object for commercial purposes, and can it be pretended that the expenditures of the company were to be limited and re- stricted to the amount of capital actually paid in by the stockholders, and that under no circumstances was the company to ex- ceed them? If, upon failure of the means on hand, the stockiiolders should neglect to pay upon a proper call, are the works to be suspended until such time as payments could be enforced? Are the persons who may have done work for it, and for which they have not been paid, to wait the slow process of the law before they can receive satisfaction? And shall the company not be permitted to use its credit in such emer- gency? It is so argued for the defendant This construction of the charter would be ruinous in its consequences. The company might be compelled to suspend all opera- tions at a time when great loss would result from deterioration to unfinished work, and be greatly injured also in its credit. The restriction contended for is too refin- ed and technical. It might have suited the days of the Year Books, when it was held that a corporation could contract for noth- ing except under its corporate seal; but it is strange that it should be urged at this .day of enlightened jurisprudence, when the substance of things is looked to rather than forms. A corporation is, in the estimation of law, a body created for special purposes, and there is no good reason why it should not, in the execution of these purposes, re- sort to any means that would be necessary and proper for an individual in executing the same, unless it be prohibited by the terms of its charter, or some public law, from so doing. There is no principle which prevents a cor- poration from contracting debts within the scope of its action; and, as has been ob- served, if it may contract a debt, it neces- sarily may make provision for its payment, by drawing, or indorsing, or accepting notes or bills. It is not pretended that this power extends to the drawing, indorsing, or accept- ing of bills or notes generally, and discon- nected from the purposes for which the cor- poration was created. The corporation, in the present case, was indebted to one of its conti-actors for work done upon the road, for the payment of which the note in question was drawn. This, upon principle and authority, was a usual and appropriate means for accomplishing the object and purposes of the charter, viz., tl:e construction of the road. Not only do aU the elementary writers sustain this view 356 CAPACITY OF PARTIES. of the subject, but, as we have seen, there are three adjudicated cases in courts of high authority dii-ectly in its favor,— the case of ^lum V. Commission Co., 16 Johns. 52, the case of Mott v. Hiclis, 1 Cow. 513, and the case of Hayward v. Pilgi'im Soc., 21 Pick. 270. There has not been produced a single case to the contrary. The cases cited relied upon are decided upon different grounds entirely. The case of Broughton v. Manchester & Sal- ford Waterworks, 3 Barn. & Aid. 1, decides nothing more than that a corporation, not established for trading purposes, cannot be acceptoi"s of a bill of exchange, payable at a less period than six months from the date, because such a case falls within the provi- sions of the several acts passed for the pro- tection of the Bank of P^ngland, by which it is enacted, that it shall not be lawful for any bcdy corporate to borrow, owe, or take up any money upon their bills or notes pay- able at demand, or at any less time than six months from the borrowing thereof. It is true, that Baily, J., in his opinion, says: "There being no power expressly given to the corporation to make promissory notes or become parties to bills of exchange, I should doubt very much (even if the bank acts were entirely out of the question) whether such corporation would have any power to bind itself for purposes foreign to those for which it was originally established;" and Best, J., in his opinion, says, "I am also of opinion, that this action is not maintain- able, because this case comes within that rule of law by which corporations are pre- vented from binding themselves by contract, not under seal. When a company, like the Bank of England, or East India Company, are incorporated for the purposes of trade, it seems to result from the very object of their being so incorporated, that they should have power to accept bills or issue promis- sory notes; it would be impossible for either of these companies to go on without accept- ing bills. In the case of Stark v. Highgate Arch- Way Co., 5 Taunt. 792, the court of common pleas seemed to think that, unless express authority was given by the act es- tablishing the company to make promissory notes eo nomine, a corporation could not bind itself except by deed. Now, there is nothing in the act of parliament establishing this company, which authorizes them to bind themselves except by deed." So, the authority of this case for the defendant rests Bolely upon the dubitatur of Baily and the opinion of Best, that the company could only bind itself by deed. How much, under these circumstances, it is worth, need not be said. The case of People v. Utica Ins. Co., 15 Johns, 358, decides, that, since the act to restrain unincorporated banking associations (April 11, 1804, re-enacted April 6, 1813), the right or privilege of carrying on banking operations by an association or company, is a franchise which can only be exercised un- der a legislative grant; that a corporation has no other powers than such as are specif- ically granted by the act of incorporation, or are necessary for the purposes of caiTying into effect the powers expressly granted; and that the act to incorporate the Utica In- surance Company does not authorize the company to institute a bank, issue bills, discount notes, and receive deposits, such powers not being expressly granted by the legislature, and not being within their in- tention, as collected from the act of incor- poration; and that the company having as- sumed and exercised these powers, they were held to have usui-ped a franchise. It is scarcely necessary to enter into an investigation, to show the ground upon which this decision rests. Banking privileges, by an association or company, in New York, rest upon express grant. There was no such grant to the Utica Insm-ance Company, and an exercise of the power was not necessary and proper to the performance of the pur- poses for which it is created, but wholly foreign thereto. In the case of New York Firemen Ins. Co. V. Ely, 2 Cow. 678, it is held, that a com- pany incorporated for the purpose of insur- ance, and forbidden to carry on any other trade or business, also forbidden to exer- cise banking powers, with a clatise in the act incorporating them enumerating the kind of securities upon which they may loan money, but not including promissory notes in such enumeration, have no power to loan moneys upon promissory notes or any se- curities other than those especially enumerat- ed. This company being incorporated for the purpose of insurance only, the discount- ing of promissory notes would have been foreign to the purpose of its creation; but, in addition thereto, it is expressly prohibited from carrying on any other trade or busi- ness, or exercising banking powers, and the kind of securities upon which it may loan money are especially enumerated, promis- sory notes being excluded, it is a well-set- tled maxim of the law, the "expressio unius exclusio est alterius";— then, for many rea- sons, this company had no power under its charter to discount notes. It is not only not given expressly or by implication, but upon every principle of legal construction is with- held. In the case of Life Ins. & Fire Ins. Co. V. Mechanics' Fire Ins. Co. of New York, 7 Wend. 31, it is held, that "a corporation au- thorized to lend money only on bond and mortgage cannot recover money lent by the corporation, except a bond and mortgage be taken for its re-payment; every other se- curity, as well as the contract itself, is void, and not the basis of action." The reason for this decision is obvious; bond and mort- gage being specified as the securities upon which the company might lend money, all others were considered as excluded, upon CORPORATIONS. 857 the principle mentioned above, "Expressio unlus excluslo est alterius." These are all the cases relied upon by the defendant for the support of the position as- sumed by him; we are satisfied that they have no applicability to the question, and are not authority in this case. We are then of opinion (to use the words of Chief Justice Marshall, in the case of McCullock V. State of Maryland) that the end proposed by the Hiwassee Railroad Com- pany, in executing the note In question, was legitimate, and within the scope of its char- ter; that as a means It was appropriate, and plainly adapted to that end, which is not prohibited, but consistent with the letter and spirit of the charter, and therefore, not void, but binding and effectual upon the company and the Indorsers. Let the Judgment of the circuit court be reversed, and the case be remanded for a new trlaL 358 REALITY OF CONSENT. 3? FOSTER V. MACKINNON, j^o CL. R, 4 C. P. 704.) Court of Common Pleas. July 5, 1869. BYLES, J. This was an action by the plaintiff as indorsee of a bill of exchange for £3.000 against the defendant, as indorser. The defendant by one of his pleas traversed the mdorsement, and by another alleged that the defendant's indorsement was obtained from him by fraud. The plaintiff was a hold- er for value before maturity, and without notice of any fraud. There was contradictory evidence as to whether the indorsement was the defend- ant's signature at all; but, according to the evidence of one Callow, the acceptor of the bill, who was called as a witness for the plaintiff, he, Callow, produced the bill to the defendant, a gentleman advanced in life, for him to put his signature on the back, after that of one Cooper, who was payee of the bill and first indorser. Callow not saying that it was a bill, and teUing the defendant that the instrument was a guarantee. The de- fendant did not see the face of the bill at all. But the bill was of the usual shape, and bore a stamp, the impress of which stamp was visible at the back of the bill. The de- fendant signed his name after Cooper's, he, the defendant (as the witness stated), believ- ing the document to be a guarantee only. The lord chief justice told the jury that, if the indorsement was not the defendant's signature, or If, being his signature, it was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it without knowing that it was a bill, and under the belief that it was a guarantee, and if the defendant was not guilty of any negligence in so signing the paper, the de- fendant was entitled to the verdict. The jury found for the defendant. A rule nisi was obtained for a new trial, first, on the ground of misdirection in the latter part of the summing-up, and, secondly, on the ground that the verdict was against the evidence. As to the first branch of the rule. It seems to us that the question arises on the traverse of the indorsement. The case presented by the defendant is that he never made the con- tract declared on; that he never saw the face of the bill; that the purport of the contract was fraudulently misdescribed to him; that, when he signed one thing, he was told and believed that he was signing another and an entirely different thing; and that his mind never went with his act. It seems plain, on principle and on author- ity, that, if a blind man, or a man who can- not read, or who for some reason (not imply- ing negligence) forbears to read, has a writ- ten contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether dif- ferent from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the groimd of fraud, where fraud exists, but on tlie ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law, never did sign, the contract to which his name is ap- pended. The authorities appear to us to support this view of the law. In Thoroughgood's Case, 2 Coke. 9b, it was held -that, if an illiterate man have a deed falsely read over to him, and he then seals and delivers the parch- ment, that parchment is nevertheless not his deed. In a note to Thoroughgood's Case, 2 Coke, 9b, In Eraser's edition of Coke's Re- ports, it is suggested that the doctrine is not confined to the condition of an illiterate gran- tor; and a ease in Keilwey's Reports (70 pi. 6), Is cited in support of this observation. On reference to that case, it appears that one of the judges did there observe that it made no difference whether the grantor were lettered or unlettered. That, however, was a case where the grantee himself was the defraud- ing party. But the position that if a grantor or covenantor be deceived or misled as to the actual contents of the deed, the deed does not bind him, is supported by many authori- ties. See Com. Dig. "Fait" (B, 2); and is recognized by Bayley, B., and the court of exchequer, in the case of Edwards v. Brown, 1 Cromp. & J. 312. Accordingly, it has re- cently been decided in the exchequer chamber that if a deed be delivered, and a blank left therein be afterwards improperly filled up (at least, if that be done without the grantor's negligence), it is not the deed of the grantor. Swan V. North British Australasian Land Co., 2 Hurl. «& C. 175. These cases apply to deeds, but the prin- ciple is equally applicable to other written contracts. Nevertheless, this principle, when applied to negotiable instruments, must be and is limited in its application. These in- struments are not only assignable, but they form part of the currency of the country. A qualification of the general rule is necessary to protect innocent transferees for value. If, therefore, a man writes his name aci'oss the back of a blank bill-stamp, and part with it, and the paper is afterwards improperly filled up, he is liable as indorser. If he write it across the face of the bill, he is liable as acceptor, when the instrument has once passed into the hands of an innocent indorsee for value before maturity, and liable to the pxtent of any sum which the stamp wiU cov- er. In these cases, however, the party signing knows what he is doing. The indorser in- tended to indorse, and the acceptor intended to accept, a bill of exchange to be thereafter filled up, leaving the amount, the date, the maturity, and the other parties to the bill undetermined. MISTAKE. 359 But in the case now under consideration the defendant, accordinfj to the evidence, if believed, and the findin;,' of the jury, never intended to indorse a bill of exchauj^e at all, but intended to sij,'n a contract of an entirely different nature. It was not his design, and, If he were guilty of no negligence, it was not even his fault that the instrument he signed turned out to be a bill of exchange. It was as if he had written his name on a sheet of paper for the purpose of franking a letter, or in a lady's album, or on an order for admission to the Temple church, or on the tly-leaf of a book, and there had already been, without his knowledge, a bill of ex- change or a promissory note payable to order inscribed on the other side of the paper. To make the case clearer, suppose the bill or note on the other side of the paper in each of these cases to be written at a time subse- quent to the signature, then the fraudulent misapplication of that signature to a ditlerent purpose would have been a counterfeit altera- tion of a writing with intent to defraud, and would therefore have amounted to a forgery. In that case the signer would not have been bound by his signature, for two reasons: First, that he never in fact signed the writing declared on; and, secondly, that he never in- tended to sign any such contract. In the present case the first reason does not apply, but the second reason does apply. The defendant never intended to sign that con- tract, or any such contract He never intend- ed to put his name to any instrument that then was or thereafter might become nego- tiable. He was deceived, not merely as to the legal effect, but as to the actual contents of the InstrumenL We are not aware of any case in which the preci.se question now before us has arisen on bills of exchange or promis.sory notes, or been judicially discus.sed. In the case of Ing- ham V. I'rimrose, 7 C. B. (N. S.) 83; 28 L. J. (C. P.) 294, and iu the case of Nance v. Lary, 5 Ala. 370, cited 1 Tars. Bills, 114, note,— both cited by the plaintiff, — the facts were very dif- ferent from those of the case before us, and have but a remote bearing on the question. But in Putnam v. Sullivan, an American case, reported in 4 Mass. 45, and cited in 1 Pars. Bills, p. Ill, note, a distinction is taken by Chief Justice Parsons between a case where an indorser intended to indorse such a note as he actually indorsed, being induced by fraud to indorse it, and a case where he in- tended to indorse a different note, and for a different purpose. And th^ court intimated an opinion that, even in such a ca.se as that, a distinction might prevail, and protect the indorsee. The distinction in the ca.se now under con- sideration is a much plainer one, for on this branch of the inile we are to assume that the indorser never intended to indorse at all, but to sign a contract of an entirely different na- ture. For these reasons we think the direction of the lord chief justice was right With respect, however, to the second branch of the rule, we are of opinion that the case should imdergo further investigation. We abstain from giving oiu* reasons for this part of our decision only lest they should prejudice either party on a second inquiry. The vule, therefore, will be made absolute for a new trial. Rule absolute. SCO KEALITY OF CONSENT. :?3 CTNDY et al (3 App. Gas. 459.) House of Lords. March 4, 1878 LINDSAY et al.i ,, Appeal from court of appeal. In 1S73, one Alfred Blenkarn hired a room at a corner house in Wood street, Chcapside. It had two side windows opening into Wood sti'eet, but, though the entrance was from Little Love Lane, it was by him constantly described as 37 Wood street, Cheapside. His agreement for tliis room was signed "Alfred Blenkarn." The now respondents, Messrs. Lindsay & Co., were linen manufacturers, carrying on business at Belfast. In the lat- ter part of 1S73, Blenkarn wrote to the plain- tiffs on the subject of a purchase from them of goods of their manufacture — chiefly cam- bric handkerchiefs. His letters were written as from ••37 Wood street. Cheapside," where he pretended to have a warehouse, but in fact occupied only a room on the top floor, and that room, though looking into Wood street on one side, could only be reached from the entrance in 5 Little Love Lane. The name signed to these letters was always signed without any initial as representing a Christian name, and was, besides, so written as to appear "Blenkiron & Co." There was a highly respectable firm of W. Blenkiron & Son, carrying on business in Wood street, but at number 123 Wood street, and not at 37. Messrs. Lindsay, who knew the respectability of Blenkiron tS: Son, though not the number of the house where they carried on business, answered the letters, and sent the goods ad- dressed to '•Messrs. Blenkiron & Co., 37 Wood Street, Cheapside," where they were taken iu at once. The invoices sent with the goods were always addressed In the same way. Blenkarn sold the goods thus fraudulently ob- tained from Messrs. Lindsay to different per- sons, and among the rest he sold 250 dozen of cambric handkerchiefs to the Messrs. Cundy, who were bona fide purchasers, and who re- sold them in the ordina:-y way of their trade. Payment not being made, an action was com- menced in the mayor's com't of London by Messrs. Lindsay, the junior partner of which firm, Mr. Thompson, made the ordinary affi- davit of debt, as against Alfred Blenkarn, and therein named Alfred Blenkarn as the debtor. Blenkarn's fraud was soon discov- ered, and he was prosecuted at the Central criminal court, and convicted and sentenced. Messrs. Lindsay then brought an action against Messrs. Cundy as for unlawful con- version of the handkerchiefs. The cause was tried before Mr. Justice Blackburn, who left it to the jury to consider whether Alfred Blenkarn, with a fraudulent intent to induce the plaintiffs to give him the credit belonging to the good character of Blenkiron »& Co., wrote the letters, and by fraud induced the plaintiffs to send the goods to 37 Wood street 1 Irrelevant parts omitted. —were they the same goods as those bought by the defendants— and did the plaintiffs by the affidavit of debt intend, as a matter of fact, to adopt Alfred Blenkarn as their debtor. The firet and second questions were answered in the affirmative, and the third iu the nega- tive. A verdict was taken for the defend- ants, with leave reserved to move to enter the verdict for the plaintiffs. On motion accord- ingly, the court, after argument, ordered the rule for entering judgment for the plaintiffs to be discharged, and directed judgment to be entered for the defendants. 1 Q. B. Div. M8. On appeal this decision was reversed, and judgment ordered to be entered for the plain- tiffs, Messrs. Lindsay. 2 Q. B. Div. 96. This appeal was then brought. Sir H. S. Giffard, Sol. Gen., Mr. Benjamin, Q. C, and B. Francis Williams, for appellants. The question here is whether the property Ln the goods passed from the respondents to Blenkarn. It is submitted that it did. A title to goods may be acquired even where they are obtained upon false pretences. Though it will not be an indefeasible title, and may be voidable, it wiU, as to third per- sons at least, be good till it has been avoided. It must in some sense pass the property, for if it did not it may be doubtful whether a conviction for obtaining the goods could be sustained. Here it is clear that there was in the first instance an intention on the part of the original owner that the property should pass. [LORD PENZANCE: But was it not the intention that it should pass to Blenkiron. but not to Blenkarn?] As to some person in Wood street the intention plainly did exist that it should pass. [LORD PENZANCE: Is there no distinction between the case of a man who, being deceived, enters into a con- tract, and that of a man who, being also de- ceived, does not enter into a contract?] The latter was the case of Hardman v. Booth, 1 Hurl. & C. 803, so much relied on in the court below. But that case is distinguishable from the present, for there the facts shewed dis- tinctly that the intention was to contract with Thomas Gandell & Co., and with them alone; and the firm of Edward Gandell <& Todd was a different firm, and carried on business at a different place, and was wholly unknown to the plaintiffs; and Edward Gandell, having by fraud got hold of the goods sent to the warehouse of Thomas Gandell, carried them off to his own place, and so disposed of them. Here the plaintiffs themselves sent the goods to the person who had corresponded with them, and who did carry on business at 37 Wood street The goods reached that desti- nation, and were delivered there according to the address which the plaintiffs had put upon them. The facts of the two cases were un- like, and, without in the least doubting the decision in that case, it may well be contend- ed not to be applicable here. Here the orig- inal owner allowed tlie goods to remain in tho MISTAKE. 361 hands of the person to whom he had sent them, and while there they were sold to the defendants, who were bona tide purchasers for value. After that the vendor could no longer follow them as his own. His inten- tion had been to transfer them, and the traus- fer was complete. In no way whatever could the case be compared to one in which money or a bill of exchange was delivered to a per- son for a particular purpose, and he used It for another, and so could give no title what- ever to a third person to whom he passed it. Neither was this a delivery to B., who stated hlu\self to be the agent of some one else, when he was not so. It was a delivery to B. himself. Credit was therefore given to him. It was given to Blenkani & Co., of 37 Wood street. Then again, in the first Instance, Mr. Thompson, one of the partners in ^Messrs. Lindsay's house, made an affidavit of debt against Alfred Bleukarn, which shewed that the house recognized Blenkarn as the debtor, and the transaction as one of a sale. That, though not conclusive on the subject, was at least strong evidence of previous intention. It may be admitted that where the authority to pai't with the property is limited, and the property is parted with in disregard of that limited authority, the title to it would not pass. Keg. V. Middleton, L. R. 2 Cr. Cas. 3S. But that cannot affect this case, for here the goods were transmitted by the owners them- selves to a person and a place described by themselves. The title to the goods was for the time perfect in law, and, being so, the transfer to the defendants made during that time, being made bona fide, could not be im- peached. Pease v. Gloahec, L. R. 1 P. C. L'l9. Till the title of Blenkarn was disaf- (irmed it was good, and the property dis- posed of in the meantime could not after- wards be followed in the hands of a third person who had honestly purchased it. Mr. Wills, Q. C, and Mr. Fullarton, for re- spondents. Where the circumstances are such that no contract has ever arisen, mere delay in de- claring a disaffirmance cannot affect the case. Kingsford v. Merry, 1 HurL & N. 503; Boul- ton V. Jones, 2 Hurl. & N. 5G4. See In re Reed, 3 Ch. Dlv. 123; Hardman v. Booth, 1 Hurl. & C. 803. Here there was no contract The plaintiffs did not know of the existence of two firms of names similar to each other carrying on business In Wood street. They knew only of Blenkii-on & Co., and thouglit they were dealing with Blenkiron & Co., and sent their goods to that firm. But Blenkiron & Co. knew nothing whatever of the matter. There was, therefore, no contract with them. "NW^as there any with Blenkarn. for by al fraud in using the name of other persons ha obtained possession of goods intended for those other pei'sons, and not for him. There, was. therefore, no contract with him. If so, no moment existed dming which a title to the goods could be given to the defendants. Their conversion of the goods was conse- quently unlawful. CAIRXS, L. Ch. My lords, you have in this case to discharge a dutj- which is always a disagreeable one for any court, namely, to determine as between two parties, both of whom are perfectly innocent, upon which of the two the consequences of a fraud prac- tised upon both of them must fall. My lords, in discharging that duty your lordshix)s can do no more than apply rigorously the settled and well-known rules of law. Now, with regard to the title to personal property, the settled and well-known rules of law may, I take it, be thus expressed: By the law oL cur coun- try the purchaser of a chattel takes the chat- tel, as a general rule, subject to what may turn out to be certain infirmities In the title. If he purchases the chattel in market overt, he obtains a title which is good against ail -the world; but if he does not purchase the chattel in market overt, and if it turns out that the chattel has been found by the person who professed to sell it, the purchaser will not obtain a title good as against the real owner. If it turns out that the chattel has been stolen by the person who has professed to sell it, the purchaser will not obtain a title. If it turns out that the chattel has come into the hands of the person who professed to sell it, by a de facto contract, that is to say, a contract which has purported to pass the property to him from the owner of the prop- erty, there the purchaser will obtain a good title, even although afterwards it should ap- pear that there were circumstances connected with that contract which would enable the original owner of the goods to reduce it, and to set it aside, because these circumstances so enabling the original owner of the goods or of the chattel to reduce the contract and to set it aside, will not be allowed to interfere with a title for valuable consideration obtain- ed by some third party during the interval while the contract remained unreduced. My lords, the question, therefore, in the present case, as your lordships will observe, really becomes the very short and simple one which I am about to state. Was there any contract which, with regard to the goods in question in this case, had passed the prop- erty in the goods from the Messrs. Lindsay to Alfred Blenliarn? If there was any con- tract passing that property, even although, as I have said, that contract might afterwards be open to a process of reduction, upon the ground of fraud, still, in the meantime, Blenk- arn might have conveyed a good title for valuable consideration to the present appel- lants. Now, my lords, there are two observations bearing upon the solution of that question which I desire to make. In the first place, if ( the property in the goods in question passed, it could only pass by way of contract There 362 KEALTTY OF CONSENT. is nothing else wliicli could liave passed the property. The second observation is this: Your lordships are not here embarrassed by any conflict of evidence, or any evidence whatever as to conversations or as to acts done; the whole history of the whole trans- action lies upon paper. The principal par- ties concerned, the respondents and Blenk- arn, never came in contact persouaUy; ev- erything that was done was done by writing. What has to be judged of, and what the jury in the present case had to judge of was mere- ly the conclusion to be derived from that writing, as applied to the admitted facts of the case. Now, my lords, discharging that duty and answering that inquiry, what the jurors have found is, in substance, this: It is not neces- sary to spell out the words, because the sub- stance of it is beyond all doubt. They have found that by the form of the signatures to the lettei-s which were written by Blenkarn, by the mode m which his letters and his ap- plications to the respondents were made out, and by the way in Avhich he left uncorrected the mode and form in which, in turn, he was addressed by the respondents; that by all those means he led, and intended to lead, the respondents to believe, and they did believe, that the person with whom they were com- municating was not Blenkarn, the dishonest and irresponsible man, but was a well known and solvent house of Blenkiron & Co., doing business in the sam-^ street. My lords, those things are found as matters of fact, and they are placed beyond the range of dispute and controver.sy in the case. If that is so, what is the consequence? It is that Blenkarn— the dishonest man, as I call him— was acting here just in the same way as if he had forged the signature of Blenk- iron & Co., the respectable firm, to the appli- cations for goods, and as if when, in return, the goods we^e forwarded and letters were sent, accompanying them, he had intercepted the goods and intercepted the letters, and had taken possession of the goods, and of the letters which were addressed to and intended for, not himself, but the firm of Blenkiron & Co. Now, my lords, stating the matter short- ly in that way, I ask the question, how is it possible to imagine that in that state of things any contract could have arisen be- tween the respondents and Blenkarn, the dis- honest man? Of him they knew nothing, and of him they never thought. With him they never intended to deal. Their minds never, even for an instant of time rested upon him, and as between him and them there was no consensus of mind which could lead to any agreement or any contract whatever. As be- tween him and them there was merely the bne side to a contract, where, in order to pro- 'duce a contract, two sides would be required. With the firm of Blenkiron & Co. of course there was no contract, for as to them the matter was entirely unknown, and therefore the pretence of a contract was a failure. The result, therefore, my lords, is this: that your lordships have not here to deal with one of those cases in which there is de facto a contract made which may afterwards be impeached and set aside on the ground of fraud; but you have to deal with a case which ranges itself under a completely dif- ferent chapter of law, the case, namely, in which the contract never comes into exist- ence. My lords, that being so, it is idle to talk of the property passing. The property remained, as it originally had been, the prop- erty of the respondents, and the title which was attempted to be given to the appellants was a title which could not be given to them. My lords, I therefore move your lordships that this appeal be dismissed with costs, and the judgment of the court of appeal affirmed. Judgment appealed from affirmed, and ap- peal dismissed, with costs. MISTAKE. o63 OUTURIEIi et al. v. HASTIE et aL (G II. L. Cas. (J73.) House of Lords. June 27. 1856. The plaintiffs were mercliauts at Smyrna; the defendants were corn factors in London; and this action was brought to recover from them the price of a cargo of Indian corn, which had been shipped at Salouica, on board a vessel chartered by the plaintiffs for a voyage to England, and had been sold in London by the defendants in error, upon a del credere commission. The purchasei", un- der the circumstances hereafter stated, had repudiated the contract. In January, 1848, the plaintiffs chartered a vessel at ISaluulca, to bring a cargo of 1180 quarters of corn to England. On the 8th of February a policy of insurance was effected on "corn, warranted free from average, un- less general, or the ship be stranded." On the 22d of that uumth, the master signed a bill of lading, makiug the corn deliverable to the plaintiffs, or their assigns, "he or they paying freight, as per charter-party, with primage and average accustomed." On the L'od February the ship sailed on the home- ward voyage. On the 1st May, 1848, Messrs. Bernouilli, the London agents of the plain- tiffs, and the persons to whom the bill of lading had been indorsed, employed the de- fendants to seU the cargo, and sent them the bill of lading, the charter-party, and the pol- icy of insurance, asliing and receiving there- on an advance of £G00. On the 15th May the defendants sold the cargo to A. B. Callander, who signed a bought note, in the following terms: "Bought of Hastie & Hutchinson, a cargo of about 1,180 (say eleven hundred and eighty) quarters of Salonica Indian corn, of fair average qual- ity when shipped per the Kezia Pago. Cap- tain Page, from Salonica; bill of lading dat- ed twenty-second February, at 27s. (say twenty-seven shillings) per quarter, free on board, and including freight and insurance, to a safe port in the United Kingdom, the vessel calling at Cork or Falmouth for or- ders; measure to be calculated as custom- aiy; payment at two months fi'om this date, or in cash, less discount, at the rate of five per cent, per annum for the unexpired time, upon handing sliippiug documents." In the early part of the homeward voyage, the cargo became so heated that the vessel was obliged to put into Tunis, where, after a survey and other proceedings, regularly and bona fide talcen, the cargo was, on the 22d April, unloaded and sold. It did not ap- pear that either party knew of these circum- stances at the time of the sale. The con- ti-act having been made on the 15th of May, Mr. Callander, on the 23d of ^lay. wrote to Hastie & Hutchinson: "I repudiate the con- tract of the cargo of Indian corn, per the Kezia Page, on the ground that the cargo did not exist at the date of the contract, it appearing that the news of the condemnation and sale of this cargo at Tunis, on the 22d April, was published at Lloyds, and other pa- pers, on the 12th instant, being three to four days prior to its being offered for sale to me." The plaintiffs afterwards brought this ac- tion. The declaration was in the usual form. The defendants pleaded several pleas, of which the first four are not now material to be considered. The fifth plea was that be- fore the sale to Callander, and whilst the vessel was on the voyage, the plaintiffs sold and delivered the corn to other persons, and that since such sale the plaintiffs never had any property in the corn or any right to sell or dispose thereof, and that Callander on that account repudiated the sale, and refused to perform his contract, or to pay the price of the corn. Sixthly, that before the defend- ants were employed by the plaintiffs, the corn had become heated and greatly dam- aged in the vessel, and had been unloaded by reason thereof, and sold and disposed of by the captain of the said vessel on account of the plaintiffs at Tunis, and that Callander, for that reason, repudiated the sale, &c. The cause was tried before Mr. Baron Mar- tin, when his lordship ruled that the contract imported that at the time of the sale the corn was in existence as such, and capable of delivery, and that, as it had been sold and delivered by the captain before this contract \\as made, the plaintiffs could not recover in the action. He therefore directed a verdict for the defendants. The case was after- wards argued in the court of exchequer be- fore the Lord Chief Baron, Mr. Baron Parke, and Mr. Baron Alderson, when the learned judges differed in opinion, and a rule was drawn up directing that the verdict found for the defendants should be set aside on all the pleas, except the sixth, and that on that plea judgment should be entered for the plaintiffs, nou obstante veredicto. That the defendants should be at liberty to treat the decision of the court as the ruling at ni'^' prius, and to put it on the record and bring a bill of exceptions. 8 Exch.40. This was done, and the lord chief baron sealed the bill of ex- ceptions, adding, however, a memorandum to the effect that he did so as the ruling of the court, but that his own opinion was in opposition to such ruling. The case was argued on the bill of excep- tions in the exchequer chamber, before Jus- tices Coleridge, Maule, Cresswell, Wlghtman, Wilhams, Talfourd, and Crompton, who were unanimously of opinion that the judgment of the court of exchequer ought to be reversed. 9 Exch. 102. The present writ of error was then brought The judges were summoned, and Mr. Baron Aldei-son, Mr. Justice Wightman, Mr. Justice Cresswell, Mr. Justice Erie, Mr. Justice Wil- liams, Mr. Baron Martin, Mr. Justice Cromp- ton, Mr. Justice Willes, and Mr. Baron Bram- well attended. o64 REALITY or CONSENT. Sir F. Thesiger and Mr. James Wilde, for plaintiEfs in error. The purchase here was not of the cargo absolutely as a thing assumed to be in ex- istence, but merely of the benefit of the ex- pectation of its arrival, and of the securi- ties against the contingency of its loss. The purchaser bought in fact the shipping docu- ments, the rights and interests of the vendor. A contract of such a kind is valid. Paine v. Meller, G Ves. 349; Cass v. Ruddle, 2 Vern. 2S0. The language of the contract implies ail this. The representation that the corn was shipped free on board at Salonica means that the cargo was the property of, and at the risk of the shipper. Cowasjee v. Thomp- son, 5 Moore, P. C. 165. The court of ex- chequer proceeded on the words of this con- tract, and gave the correct meaning to them. Mr. Baron Parke, 8 Exch. 54, said: "There is an express engagement that the cargo was of average quality when shipped, so that it is clear that the purchaser was to run the risk of all subsequent deterioration by sea damage or otherwise, for which he was to be Indemnified by having the cargo fuUy insur- ed; for the 27s. per quarter were to cover, not merely the price, but all expenses of shipment, freight, and of insurance." In a contract for the sale of goods afloat there are two periods which are important to be regarded, the time of sale and the time of arrival. If at the time of the sale there is any thing on which the contract can attach, it is valid, and the vendee bound. Barr v. Gibson, 3 Mees. & W. 390. The goods are either shipped, as here, "free on board," when it is clear that they are thenceforward at the risk of the vendee; or they are shipped "to arrive," which saves the vendee from all risk till they are safely brought to port. John- son V. Macdonald, 9 Mees. & W. GOO. The intention of the parties is understood to be declared by different terms of expression, and the judgment of the exchequer chamber here really violates that intention. The case of Strickland v. Turner, 7 Exch. 208, which was referred to by the lord chief baron (8 Exch. 49), is not in point, for there the an- nuity, which was the subject of the sale, had actually ceased to exist when the sale took place. There was nothing whatever on which the contract could attach; and the principles therefore on which all con- tracts of sale must proceed, as explained and illusti-ated by Pothier (Poth. Cont. pt. 1, § 2, art. 1), whose definitions of a sale are liter- ally adopted by Mr. Chancellor Kent (2 Kent, Comm. 468), applied there, but they do not apply here, for here the parties were dealing with an expectation, namely, the ex- pectation of the arrival of the cargo. As Lord Chief Baron Richards said, in Hitch- cock v. Giddings, 4 Price, 135, "If a man will make a purchase of a chance, he must abide by the consequences." Here, how- ever, the chance was only that of the ar- rival of the cargo, and that chance was cov- ered by the policy, for the cargo itself, as stated in the contract, had been actually shipped. Had the cargo been damaged at the time of this contract, the loss thereby arising must have been borne by the pur- chaser. Suppose the corn had been landed at Tunis, and had remained in the ware- house there, it would have ceased to be a cargo in the strict and literal meaning of the word, but the purchaser would still have been bound by his contract. The court of exchequer chamber, admit- ting that the vendee might have recovered an average loss under the policy on this cargo, said that he could not have recovered if a total loss had occurred, and referred to an admission to that effect supposed to have been made by the present Baron Martin when arguing Sutherland v. Pratt, 11 Mees. & W. 296. That admission does not mean what is thus supposed; and after the case of Roux V. Salvador, 3 Bing. N. C. 2G6, where there was a total loss, and the plain- tiff recovered on the policy, it is difficult to understand how such an opinion could be entertained. A technical objection arising on the form of the policy would not affect this question. The purchaser's right on this policy woiild have been complete. 1 Phil. Ins. 438; 1 Marsh. Ins. 333; and March v. Pigott, 5 Burrows, 2802. By what has happened here, the purchaser has been saved the payment of freight Olier- boom V. Chapman, 13 Mees. & W, 230); and Owens V. Dunbar, 12 Ir. Law, 304, shows that he would have been bound to accept the cargo. The contract here was that the cargo was shipped "free on board." To that extent the vendor was bound, but he was not bound by any further and implied war- ranty. Dickson v. Zizinia, 10 C. B. 602. Mr. Butt and Mr. Bovill, for defendants iu error, were not called on. CRANWORTH, Ch. My lords, this case has been very fully and ably argued on the part of the plaintiffs in error, but I under- stand from an intimation which I have re- ceived that all the learned judges who are present, including the learned judge who was of a different opinion in the court of exchoquec, before the case came to the ex- chequer chamber, are of opinion that the judgment of the court of exchequer cham- ber sought to be reversed by this writ of error was a correct judgment, and they come to that opinion without the necessity of hearing the counsel for the defendants in error. If I am correct in this belief, 1 will not trouble the learned counsel for the defendants in error to address your lord- ships, because I confess, though I should en- deavor to keep my mind suspended till the case had been fuUy argued, that my strong impression in the course of the argument has been, that the judgment of the court of exchequer chamber is right. I should there- MISTAKE. 365 fore simply propose to ask the learned judges whether they u^ree in thinking that that judgment was right. [The judges consulted together for a few minutes, at the end of which time] Mr. Baron ALDERSON said: My lords, her majesty's judges are unanimously of opinion that the judgment of the exchequer chamber was right, and that the judgiucut of the court of exchequer was wroug; and I am also of that opinion myself now, hav- ing been one of the judges before whom the case came to be heard in the court of ex- chequer. THE LORD CHANCELLOR. My lords, that being so, I have no hesitation in advis- ing your lordships, and at once moving that the judgment of the court below should be affirmed. It is hardly necessary, and it has not ordinarily been usual, for your lordships to go much into the merits of a judgment which is thus unanimously affirmed by the judges who are called in to consider it, and to assist the house in forming its judgment. But I may state shortly that the whole ques- tion turns upon the construction of the con- tract which was entered into between the pnrtics. I do not mean to deny that many plausible and ingenious arguments have been pressed by both the learned counsel who have addressed your lordships, showing that there might have been a meaning attached to that contract different from that which the words themselves import. If this had depended not merely upon construction of the contract but upon evidence, which, if I recollect riglitly, was rejected at the trial, of what morc-antile usage had been, I should not have been prepared to say that a long- continued mercantile usage interpreting such contracts might not have been sufficient to warrant, or even to compel, your lordships to adopt a different construction. But, iu the absence of any such evidence, looking to the contract itself alone. It appears to me clearly that what the parties contemplated— those who bought and those who sold— was that there was an existing something to be sold and bought, and if sold and bought then the benefit of insurance should go with it I do not feel pressed by the latter argument, which has been brought forward very ably by Mr. Wilde, derived from the subject of insurance. I think the full benefit of the insurance was meant to go as well to losses and damage that occurred previously to the 15th of May as to losses and damage that occurred subsequently, always assuming that something passed by the contract of the l.jth of May. If the contract of the IGth of May had been an operating contract, and there had been a valid sale of a cargo at that time existing, I think the purchaser would have had the benefit of insurance iu respect of all damage previously occurring. The contract plainly imports that there was something which was to be sold at the time of the contract, and something to be pur- chased. No such thing existing, I think the court of exchequer chamber has come to the only reasonable conclusion upon it, and con- sequently that there must be judgment giv- en by your lordships for the defendants in error. .Judgment for the defendants in error, with costs. 366 c^^ REALITY OF 3 IRWIN V. WILSON. J-^ (15 N. E. 209, 45 Ohio St. 426.) Supreme Court of Ohio. Nov. 22, 1887. Error to circuit court, Hardin county. The original suit was begun in the common pleas to obtain the rescission of an exchange of lands that had been made between the parties, on the ground that the defendant had made fraudulent representations as to the lo- cation, character and value of the lands giv- en by him in exchange for those of the plain- tiff. Judgment was rendered in favor of the defendant on the issue as to fraud, and the plaintiff appealed to the district court, then in existence. The plaintiff, by leave of court, then amended his petition, so as to aver that there was a mutual mistake as to the loca- tion, chai-acter, and value of the lands ex- changed by the defendant for those of the plaintiff. On the issues made as to this, the case was subsequently heard and determined by the circuit court, as the successor of the district court. It made, at the request of the plaintiff, a special finding of facts, and ren- dered judgment thereon in favor of the de- fendant, dismissing the action of the plaintiff. The plaintiff moved the court to set aside its finding and judgment as not supported by the evidence; and, also, as not supported by law. The motion was overruled, and the rulings of the court in this regard are assigned for error here. The facts as found by the court are as follows: "(1) That on the fourteenth day of December, 1881, the plaintiff, William S. Invin, was the owner of the house and lot in Kenton, Ohio, in the petition described, wliich was worth $1,700. (2) That the de- fendant, Joseph H Wilson, was at said date the owner of the land described in the peti- tion, being 80 acres of land situate in the county of Monona, in the state of Iowa. (3) That on the said date one Isaac H. Wilson, who was the father and agent of defendant, proposed to sell and exchange said 80 acres of land in Iowa, to and with plaintiff, for said house and lot of plaintiff, which said 80 acres of land said Isaac H. Wilson then stat- ed had been taken by defendant in a trade of lands at $1,200; that he had never been in Iowa, and had not seen the land, and knew nothing of it, but that one Henry Pugh, he was informed, had been to see the laud, and Pugh, he was informed, said it was good, dry land, and within three to four miles of the county-seat of said county of Monona, in the state of Iowa, and that said Henry Pugh lived near Ada, in said Hardin county; that on the seventeenth day of December, 1881, said agent proposed to said plaintiff to go and see and inquire of said Henry Pugh as to the location and quality of said land in Monona county, Iowa, and said Isaac H. Wilson, did, on the nineteenth day of Decem- ber, 1881. furnish a conveyance for that pur- pose, and he and plaintiff did go to the house of said Henry Pugh, and said plaintiff did CONSENT. then, in the presence of said Isaac H. Wil- son, make inquiries r tlio contract, as evidenced by these writings, the title did not pass until the cow was weighed and her price there- by determined; and that, if the defendants only agreed to sell a cow that would not breed, then the barrenness of the cow was a condition precedent to passing title, and plaintiff cannot recover. The court also charged the jury that U was immaterial whether the cow was with calf or not. It will therefore be seen that the defendants claim that, as a matter of law, the title to this cow did not pass, and that the circuit judge erred in submitting the case to the jury, to be determined by them, upon the intent of the parties as to whether or not the title passed with the sending of the let- ter and order by the defendants to the plain- tiff. This question as to the passing of title Is fraught with difficulties, and not always easy of solution. An examination of the multitude of cases bearing upon this subject, with their infinite variety of facts, and at least apparent conflict of law. ofttimes tends to confuse rather than to enlighten the mind of the inquirer. It is best, therefore, to con- sider always, in cases of this kind, the gen- eral principles of the law, and then apply them as best we may to the facts of the case in hand. The cow being worth over $."0, the con- tract of sale, in jjrder to be valid, must be one where the purchaser has received or ac- cepted a part of the goods, or given some thing in earnest, or in part payment, or where the seller has signed some note or memorandum in writing. How. St. § GISO. Here there was no actual delivery, nor any- thing given in payment or in earnest, but there was a sufficient memorandum signed by the defendants to take the case out of the statute, if the matter contained in such memorandum is sufficient to constitute a completed sale. It is evident from the let- ter that the payment of the purchase price was not intended as a condition precedent to the passing of the title. Mr. Sherwood Is given his choice to pay the money to Graham at King's cattle-yards, or to send check by mail. Nor can there be any trouble about the delivery. The order instructed Graham to deliver the cow, upon presentation of the order, at such cattle-yards. But the price of the cow was not determined upon to a certainty. Before this could be ascertained, from the terms of the contract, the cow had to be weighed; and. by the order inclosed with the letter, Graham was instructed to have her weighed. If the cow had been weighed, and this letter had stated, upon such weight, the express and exact price of the animal, there can be no doubt but the cow would have passed with the sending and receipt of the letter and order by the plaintiff. Payment was not to be a concur- rent act with the delivery, and therein this case differs from Case v. Dewey, ,55 Mich. IIG, 20 N. W. 817, and 21 N. W. 911. Also. in that case, there was no written memo- randum of the sale, and a delivery was nec- essary to pass the title of the sheep; and it was held that such delivery could only be made by a surrender of the possession to the vendee, and an acceptance by him. De- livery by an actual transfer of the property from the vendor to the vendee, in a case like the present, where the article can easily be so transferred by a manual act, is usually the most significant fact in the transaction to show the intent of the parties to pass the title, but it never has been held conclusive. Neither the actual delivery, nor the absence of such delivery, will control the case, where the intent of the parties is clear and mani- fest that the matter of delivery was not a condition precedent to the passing of the title, or that the delivery did not carry with It the absolute title. The title may pass, If the parties so agree, where the statute of frauds does not interpose without delivery, and property may be delivered with the un- derstanding that the title shall not pass until some condition is performed. And whether the parties intended the ti- tle should pass before delivery or not Is generally a question of fact to be deter- mined by the jury. In the case at bar the question of the intent of the parties was submitted to the jury. This submission was right, unless from the reading of the letter 372 REALITY OF CONSENT. and the order, and all the facts of the oral bargaining of the parties, it is perfectly clear, as a matter of law, that the intent of the parties was that the cow should be weighed, and the price thereby accurately determined, before she should become the property of the plaintiff. I do not think that the intent of the parties in this case is a matter of law, but one of fact. The weighing of the cow was not a matter that needed the presence or any act of the de- fendants, or any agent of theirs, to be well or accurately done. It could make no dif- ference where or when she was weighed, if the same was done upon correct scales, and by a competent person. There is no pre- tense but what her weight was fairly ascer- tained by the plaintiff. The cow was spe- cifically designated by this writing, and her delivery ordered, and it cannot be said, iu my opinion, that the defendants intended that the weighing of the animal should be done before the delivery even, or the passing of the title. The order to Graham is to deliver her, and then follows the instruction, not that he shall weigh her himself, or weigh her, or even have her weighed, before de- livery, but simply, "Send halter with the cow, and have her weighed." I It is evident to my mind that they had perfect confidence in the integrity and re- pponsibility of the plaintiff, and that they jconsidered the sale perfected and completed when they mailed the letter and order to plaintiff. They did not intend to place any conditions precedent in the way, either of payment of the price, or the weighing of the cow. before the passing of the title. They cared not whether the money was paid to Graham, or sent to them afterwards, or whether the cow was weighed before or after she passed into the actual manual grasp of the plaintiff. The refusal to deliver the cow grew entirely out of the fact that, before the plaintiff called upon Graham for her, they discovered she was not ban-en, and therefore of greater value than they had sold her for. The following cases in this court support the instruction of the court below as to the intent of the parties governing and con- trolling the question of a completed sale, and the passing of title: Lingham v. Eg- gleston, 27 Mich. 324; Wilkinson v. Holiday, 3.3 Mich. 3SG; Grant v. Merchants' & Manu- facturers' Bank, 3.5 Mich. 527; Carpenter v. Graham, 42 Mich. 194, 3 N. W. 974; Brewer V. Salt Ass'n, 47 Mich. 534, 11 N. W, 370; Whitcomb v. Whitney, 24 Mich. 486; Byles V. Colier, 54 Mich. 1, 19 N. W. 505; Scottcn V, Sutter, 37 Mich. 527, 532; Ducey Lumber Co. V. Lane, 58 Mich. 520, 525, 25 N. W. 568; Jenkinson v. Monroe, 61 Mich. 454, 28 N. W. 663. It appears from the record that both par- ties supposed this cow was barren and would not breed, and she was sold by the pound for an insignificant sum as compared with her real value if a breeder. She was evidently sold and purchased on the relation of her value for beef, unless the plaintiff had learned of her true condition, and con- cealed such knowledge from the defendants. Before the plaintiff secured possession of the animal, the defendants learned that she was with calf, and therefore of great value, and undertook to rescind the sale by re- fusing to deliver her. The question arises whether they had a right to do so. The circuit judge ruled that this fact did not avoid the sale and it made no difference whether she was barren or not. I am of the opinion that the coui-t erred in this holding. I know that this is a close question, and the dividing line between the adjudicated cases is not easily discerned. But it must be considered as well settled that a party who has given an apparent consent to a con- tract of sale may refuse to execute it, or he may avoid it after it has been completed, if the assent was founded, or the contract , tuade, upon the mistake of a material fact, ' —such as the subject-matter of the sale, the price, or some collateral fact materially in- ducing the agreement; and this can be done when the mistake is mutual. 1 Benj. Sales, §§ 605. 606; Leake, Cont. 339; Story, Sales, (4th Ed.) §§ 377, 148. See, also. Cutis v. Guild, 57 N. Y, 229; Harvey v. Harris, 112 Mass. 32; Gardner v. Lane, 9 Allen, 492, 12 Allen, 44; Huthmacher v. Harris' Adm'rs, 38 Pa. St. 491; Byers v. Chapin, 28 Ohio St. 300; Gibson v. Telkie, 37 Mich. 380, and cases cited; Allen v. Hammond, 11 Pet. 63- 71. If there is a difference or misapprehension as to the substance of the thing bargained for; if the thing actually delivered or re- ceived is different in substance from the thing bargained for, and intended to be sold, —then there is no contract; but if it be only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding. "The difficulty in every case is to determine whether tlie mistake or misap- prehension is as to the substance of the whole contract, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration." Kennedy v. Panama, etc.. Mail Co., L. R. 2 Q. B. 580, 587. It has been held, in accordance with the principles above stated, that where a horse is bought under the belief that he is sound, and both vendor and vendee honestly believe him to be sound, the purchaser must stand by his bargain, and pay the full price, unless there was a warranty. It seems to me, however, in the case made by this record, that the mistake or misap- prehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least $750; MISTAKE. If barren, she was worth not over $80. The parties would not have ni:ule the contract of sale except upon the underslandinf; and be- lief that she was incapable of breeding, and of no use as a cow. It is true she Is now the identical animal that they thought her to be when the contract was made; tliere is no mistalie as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the vei-y nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as thore^ is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale, but the mistake af- fected the character of the animal for all time, and for her present and ultimate use. She was not in fact the animal, or the kind of animal the defendants intended to sell or the plaintiff to buy. She was not a barren cow, and, if this fact had been known, there would have been no contract The mistake affected the substance of the whole consid- eration, and It must be considered that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact no existence. She was sold^as^ beef creature would be soIdT" she is in fact a breeding cow, and avalua- ble_ojQe. The cOTirt should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon tlie understanding of both parties that she was bairen, and useless for the purpose of breeding, and that in fact she was not bar- ren, but capable of breeding, then the de- fendants had a right to rescind, and to re- fuse to deliver, and the verdict should be in their favor. The judgment of the court below must be reversed, and a new trial granted, with costs of this court to defendants. CAMPBELL, C. J., and CHAMPLIN, J., concurred- SHERWOOD, J., delivered a dissenting opinion. REALITY OF CONSENT. OSBURN et al. v. THROCKMORTON. (18 S. E. 285, 90 Va. 311.) Supreme Court of Appeals of Virginia. Nov., 1893. Appeal from circuit court, Loudoun coun- ty; James Keith, Judge. Bill by James B. Throckmorton to enjoin one Osbum, trustee, and others from seUing certain property under a deed of trust. From a decree for complainant, defendants appeaL AffiLnned. John M. Orr, for appellants. Ed. Nichols and Alexander & Tibbs, for appeUee. LACY, J. This is an appeal from two de- crees of the circuit court of Loudoun coun- ty, rendered respectively at the January term, 1S91, and the October term, 1891. The bill was filed in this case in December. 1890, to enjoin Osbiuni, trustee, from selling a tract of land in Loudoun coimty, conveyed to him as trustee by deed dated March 8, 1876, executed by James B. Throckmorton and EUza J. Throckmorton, his wife, to se- cure the paymi^nt to Joseph Lodge of the debt therein mentioned of $2,000, due by note executed by the said James B. Throckmorton, dated March 8, 1876. The gi-oimd stated in the bill \ipon which the injunction Is sought is as follows: The said Joseph Lodge died in the year 1877, after having made his will, by which said Osbum, trustee, was appoint- ed the executor of the same. That during the first year of said executor's administra- tion of said estate the said $2,000 was fully settled, and was charged in his executorial account as settled and collected, and the ac- count confirmed more than 10 years before, and the said bond evidencing said debt was surrendered to the debtor as paid. But the trust deed executed to secure the same by inadvertence was not released, though dis- charged in fact, and no trust remained to be executed by said trustee. That, nevertheless, the said Osbum, trustee, had advertised the said land for sale, as was shown by copy of advertisement exhibited with the bill, reciting in the said advertisement that the said debt secured by the said dee. was not we think, a representation that it was business paper, drawn against funds or credits of the drawer, in the hands of the drawees, or in the ordi- nary course of business transactions between them. The paper had all the essential requi- sites of accepted bills of exchange. The draw- er and drawees were different parties, and upon the transfer of the paper by Duncan, Sherman & Co., both became liable to the FRAUD. 377 bolder upou distinct and independent con- tracts. Prima facie, every accepuiuce affords a presuuipLion of funds of the drawer in tlie liands of tlie acceptor, and of an approprlallon of these funds for the use of the drawer (lia- borg V. Peyton, 2 Wheat 3S5). and upon this presumption remedies are administered. The acceptance is evidence of money had, received by the acceptor foi the use of the holder, and an action for money had and received will lie in his favor against the acceptor, and he can- not defeat the actiou by proof tliat he acceptr od without funds. Story, J., in the case cited, referring to the presumption that the bili is drawn against funds, says: "The case may indeed be otherwise, and then the acceptor pays the debt of the drawer, but as between liimself and the payee, it is not a collateral but an original and direct undertalcing." Ac- ceptances without fmlds, or accommodation acceptances, are certainly not unusual com- mercial transactions, and this must be well understood among commercial men. In Re Hammond, G De Gex, M. & G. G99, the Lord .Tustice Knight Bruce says: "Now I do not think that the mere circumstance of a man parting with a bill, without saying this is an accommodation bill amounts to an implied representation that it is not an accommoda- tion bill; I am not aware of any sufficient reason or authority for so extensive a prop- osition." The law on the sale of commercial paper implies a warranty on the part of the vendor of title and that the instrument is genuine (Littauer v. Goldman, 72 N. Y. 506. See, also, Lobdell v. Baker, 1 Mete. [Mass.] 193); and also as stated by Judge Story, that the vendor "has no knowledge of any facts which prove the instrument if originally valid to be worthless eitlier by failure of the maker, or by its being already paid, or otherwise to have become void or defunct." Story, Prom. Notes, § 118. But no case has been cited sup- porting the proposition that there is any im- plied warranty or representation on the part of the vendor of a bill valid in the hands of the indorsee, that it was drawn against funds, or that it was not accommodation paper. The bills in question were acceptances, and In law and fact instruments of the description of these offered for sale by the defendants, and purchased by the phiintiff. In the absence then of any representation by the defendants in respect to the origin or consideration of the bills, the remaining ques- tion is, whether the defendants were under a legal duty to inform the plaintiff at the time of sale, of the circumstances under which they were made. The general proposition is as- serted by the learned counsel for the plaintiff, that the holder of negotiable paper who knows a material fact affecting its market value, and who sells it for fiill value without disclosing such fact, is liable to the purchaser for the amount paid for the paper, if after the discov- ery of the suppression, the purchaser elects to rescind the sale. But the proposition asserted is broader than the recent authorities war* rant The law requires disclosure to be made only when there is a duty to make it, aucf this duty is not raised by the mere circum- stance that the undisclosed fact is material, and is known to the one party and not to the other, or by the additional cireum.stance that the party to whom it is known knows that the other party is acting in ignorance of it. It must be assumed on this appeal, that if at the time of the purchase of the paper it had been known in the community that Duncan, Sherman & Ck>. wtre selling their own ac- ceptances in the market it would have created suspicion and affected their credit, and that the plaintiff would not have pur hased it But the fact that Duncun. Sherman &: Co. were borrowing under disguise would at most be ground of suspicion of pecuniary embarrass- ment. The borrowing of money by men en- gaged in large transactions, as Duncan, Sher- man & Co. were, as bankers and dealers in cotton on their own account, and on commis- sion, is certainly not unusual, and this al- though the borrowers may be persons of large means, and the fact that they borrowed by methods which would not disclose that they were borrowers would not necessarily be In- consistent with good faith or solvency. It might be inconsistent with both, and it may have been in this case. But the question is, were the defendants under a duty to com- municate the discrediting facts within their knowledge, in the absence of tiny inquiry Id resi>ect to the origin of the paper, and when the means of information were accessible to the purchaser, and was their omission to do this an actionable fraud, they having done nothing to mislead or divert inquiry, and aU that they did being to offer the paper for sale? We are of opinion that the law did not cast upon them the duty of such disclosure. The defendants were in the attitude of vendors of paper purchased and owned by them. The plaintiff was seeking investment for its fimd. that it does not allege intent to defraud. It is not necessary, in order to constitute a fraud, that the party who makes a false representation should know it to be false. He who makes a representation as of his own knowledge, not knowing whether it be true or false, and it is in fact untrue, is guilty of fraud as much as if he knew it to be untrue. In such a case he acts to his own knowledge falsely, and the law imputes a fraudulent intent. Kerr, Fraud & M. 54 et seq., and cases cited; Bigelow, Fraud, 63» 84, 453; 3 Wait, Act & Def. 438 et seq.; 2 Estee, Pr. 394 et seq. "Fraud" is a term which the law applies to certain facts, and w^here, upon the facts, the law adjudges fraud, it is not essential that the complaint should, in terms, allege it. It is sufficient if the facts stated amount to a case of fraud. Kerr, Fraud & M. 366 et seq., and cases cited; 2 Estee, PI. 423. The complaint in this case states a substantial cause of ac- tion, and is fully supported by the evidence. The action of the county com-t in refusing to allow the appellant to appeal to the dis- trict court after he had given notice of an ap- peal to this court, and time had been given in which to perfect it, cannot be assigned as error on this record. If it was an error, it was error not before, but after, the final judgment from which this appeal is taken. The judgment of the court below is af- firmed. [Note from 10 Pac. Rep. 292.] A contract seciirod by false and fraudulent rcDFOsentations cannot be enforced. Mills v. Collins, 67 Iowa, 164, 25 N. W. Hep. 109. A court of equity will decree a rescission of a conlract obtained by the fraudulent represen- tations or conduct of one of the parties thereto, on the complaint of the other, when it satis- factorily appears tliat the party seeking tJtie rescission has been uiisled in regard to a ma- FRAUD. ^85 terial matter by such representation or conduct, to his injury or projmlice. But wlicn tlie facts are known to both parties, and each acts on his own judfjraent, the court will not rescind the contract because it may or does turn out that the}', or cither of tlieiu, were mistaken as to the lepal effect of the facts, or the rrziits or ob- ligations of tlie parties tliereunder, and particu- larly when such mistake can in no way injuri- ously aH'cct the right of the jjarly complaining under the contract, or prevent him from obtain- ing and receiving all the benefit contemplated by it, and to which he is entitled under it. See- ley V. Keed, 25 Fed. Kep. 3G1. When, by false representations or misrep- resentations, a fraud has been committed, and by it «he complainant has been injured, the gen- eral principles of equity jurisprudence afford a remedy. Singer Manuf'g Co. v. Yarger, 12 Fed. Rep. 437. See Chandler v. Childs, 42 Mich. 128, 3 N. W. Rep. 297; Cavender v. Robenson, 33 Kan. G2G, 7 Pac. Rep. 152. When no damage, present or prospective, can result from a fraud practiceil, or false repre- sentations or misrepresentation made, a court of equity will not entertain a petition for relief. Dunn V. Remington, 9 Neb. 82, 2 N. W, Rep. 230. A person is not at liberty to make positive assertions about facts material to a transaction unless he knows them to be true: and if a statement so made is in fact false, the as- sertor cannot relieve himself from the imputa- tion of fraud by pleading ignorance, but must resiwnd in damages to any one who has sus- tained loss by acting in reasonable reliance upon such assertion. Lynch v. Mercantile Trust Co., 18 Fed. Rep. 48G. Equity will not relieve a,gainst a misrepre- sentation, unless it be of some material matter constituting some motive to the contract, some- thing in regard to which reliance is placed by one party on the other, and by w-hich he was actually misK^l, and not merely a matter of opinion, open to the inquiry and exauiiuatiou of both parties. Buckner v. Street, 15 Fed. Rep. 365. False representations may be a ground for relief, though the person making them believes them true, if the person to whom they were made relied upon them, and was induced there- by to enter into the contract. Seeberger v. Ho- bcrt, 55 Iowa, 75G, 8 N. W. Rep. 482. Fraudulent representations or misrepresenta- tions are not ground for relief, where they are immaterial, even thou'.vh thev be relied upon. Hall v. Johnson. 41 Mich. 286. 2 N. W. Rep. 55. See, to same effect, Lvnch v. Mercantile Trust Co., 18 Fed. Rep. 48G; Seeberger v. IIo- hert, 55 Iowa, 7.5G, S X. W. Rep. 482. In fraudulent representation or misrepresenta- tion the injured parties may obtain relief, even though they did not suppose every statement made to them literallv true. Heineman v. Stei- ger, 54 Mich. 232, 19" N. W. Rep. 9G5. Where the vendor honestly expresses an in- HOPK. SEL. CAS. COUT. —25 correct opinion us to the amount, quality, an- n-scntations will lie. Collins v. Jackson, 54 Mir-h. ISG. in N. W. Rep. 947. .Mere "dealing talk" in the sale of g ods, ir - less accomiiaiiicd by some arlilice to deceive the purchaser or throw him off his guard, or some concealment of intrinsic defects not easily detected by ordinary care and diligence, does not amount to misrepresentation. Revnolds v. Palmer, 21 Fed. Rep. 433. False statements made at the time of the sale by the vendor of chattels, with the fraud- ulent intent to induce the purchaser to accept an inferior article as a superior one, or to give an exorbitant and unjust i)rice therefor, will n-nder such purchase voidable; but such false statement must be of some matter affecting the character, quantity, quality, value, or title of such chattel. Bank v. Yocum, 11 Neb. 328, 9 N. W. Rep. 84. A statement recklessly made, without knowl- edge of its truth, is a false statement knowing- ly made, within the settled rule. Cooper v. Schlcsinger, 111 U. S. 148, 4 Sup. Ct. Rep. 3G0. Whether or not omission to communicate known facts will amount to fraudulent repre- sentation depends upon the circumstances of the particular case, and the relations of the parties. Britton v. Brewster, 2 Fed. Rep. IGO. Where a vendor conceals a material fact, which is substantially the consideration of the contract, and which is peculiarly within his knowledge, it is fraudub^nt misrepresentation. Dowling V. Lawrence, 58 W^is. 282, IG N. W. Rep. 5.52. Evidence of fraudulent representations must be clear and convincing. Wickham v. More- house, 16 Fed. Rep. 324. Where a man sells a business, and the con- tract of sale contained a clause including all right to business done by certain agents, evi- dence that the seller was willing to engage in the same business with such agents is not proof of fraud in making the contract. Tavlor v. Saurman, 110 Pa. St. 3, 1 Atl. Rep. 40. It was recently held by the supreme court of Indiana, in the case of Cook v. Churchman, 104 Ind. 141, 3 N. E. Rep. 759, that where money is obtained under a contract, any fraudulent representations employed by a party thereto as a means of inducing the loan to be made, if otherwise proper, are not to be excluded be- cause of the statute of frauds; also that where parol representations are made regarding the credit and ability of a third person, with the in- tent that such third person shall obtain money or credit thereon, the statute of fraud applies, and no action thereon (?au be maintained, al- though the party making the representations may have entered into a conspiracy with such person with the expectation of obtaining some incidental benefit for himself. 386 REALITY OF COXsEXT. COBB T. HATFIELD. l/y (46 N. Y. 533.) ^/ Conrt of Appeals of New York. 1S71. Action for the recovery of $1,000 and in- terest paid by the plaintiff to the defendants, upon the purchase of an interest in an oil property in Penn.sylvania, upon the ground that the purchase had been induced by the false and fraudulent representations of the defendants as to the character, yield, and value of the property. Judgment for plain- tiff reversed. John H. Reynolds, for appellant WiUiam C. Ruger, for respondents. ALLEN, J. Under the complaint the plain- tiff might have treated the action as in case for the recovery of damages for the alleged fraud; and in such action no return of prop- erty received from the defendants, or other act restoring the defendants to the condition they occupied before making the contract, would have been necessary as a condition precedent to maintiiining the action. But upon the trial the plaintiff expressly re- pudiated the contract, and claimed to recov- er the money advanced and paid, as upon a rescission of the contract, and at the close of the evidence on his part, tendered to the defendants, and offered to cancel the as- signment and transfer, and claimed to re- cover in the action the consideration paid and interest, "solely upon the groimd of a resci-ssion of the contract" for the alleged fraudulent representations of the defend- ants. The recovery was had for the money paid and interest thereon. The judge char- ged the jury that what had been done was Kufficient to entitle the plaintiff to maintain the action, that It was a sufficient rescission of the contract. It is somewhat questionable whether the point upon which the supreme court reversed the judgment and granted a new trial was properly taken. No question was made at the trial as to the necessity of an immediate rescission of the contract upon a discovery of the fraud; and the judge at circuit did not rule and was not called upon to rule in respect to the time at which the plaintiff should have rescinded the contract, and re- stored or tendered to the defendants what he had received. His attention was not called to that question, and non constat, that had the question been directly raised, the plaintiff might not have shown an earlier revocation than 'was shown at the trial. The judge only passed upon the character and quality of the acts relied upon as a rescission, and not as to their timely and seasonable perform- ance. But passing this, a fatal error was commit- ted on the trial in the exclusion of evidence offered by the defendants. The assignment and transfer to the plaintiff was of an undi- vided share or interest in certain property, and entitled him to a proportionate number of shares of the capital stock in the "Collins Oil Company," an incorporated association, when the corporation should be fuUy organ- ized and prepared to issue stock certificates. The capital stock of the corporation repre- sented the interests of the proprietors of the property, of whom the plaintiff became one by his purchase of the defendants; and when he should receive his stock certificate, that, rather than the assignment and transfer from the defendants, would represent and evidence his ownership of the property and interests purchased. The corporation was organized and stock certificates were issued to the own- ers in October, 1865. The defendants of- fered to show that the plaintiff applied at the office of the company for his stock, and that it was delivered to him in fulfillment of the contract of purchase from the defendants, and that he had accepted it and kept it, and had Aever returned it or canceled it, or of- fered so to do. The evidence was excluded upon objection by the plaintiff. It was said by both counsel, and such would seem to be the fact from the evidence, that the plaintiff received his stock certificate aft- er the commencement of this action. If so. It was necessarily after he had knowledge of the fraud of which he complains; arid the act was a ratification and affirmance of the contract. He could not wfth knowledge of the fraud which had been practiced upon him, take any benefit under the contract, or change the condition of the property, the subject-matter of the contract, and then re- pudiate the contract. The taking of a benefit Is an election to ratify it, and concludes him. He cannot be allowed to deal with the sub- ject-matter of the contract and afterward disaffirm it. The election is with the party defrauded to afllrm or disaffirm the contract; but he cannot do both. Masson v. Bovet, 1 Denio, 69. By accepting the stock certificate he elected to abide the purchase. But If the certificate of stock was received before the commencement of the action, and before the plaintiff had knowledge of the fraud, he was bound, upon a rescission of the contract, to restore to the defendants all that he had re- ceived from them, and all that he had acquir- ed imder it; to place the defendants in statu quo as near as practicable. The law not only requires a disaffirmance of the contract at the earliest practicable moment after discovery of the cheat, but a return of all that has been received under it, and a restoration of the other party to the condition in which he stood before the contract was made. To retain any part of that which has been received upon the contract, is incompatible with its rescission. Masson v. Bovet, supra; Voorhees v. Earl, 2 Hill, 288; Hogan r. Weyer, 5 Hill, 389. The contract although fraudulent was not Ipso facto void, but only void at the election of the plaintiff, and a return of what he had received under it. Where a party had parted with goods for the note of a third per* FRAUD. 387 son upon the fraudulent representations of the purchaser as to the solvency of the maker, and had recovered a judjj;ment upon the note, the court held that he could not rescind the sale without tendering an assignment of the judgment. Baker v Robbins, 2 Denio, loO. The evidence offered was material upon the question of aflinnance of the contract, as well as in respect to the acts uecessarj' on the part of the plaintilT to a rescission of It, and upon the right of the plaintiff to recover the money paid, and should have been ad- mitted. If the fact had been proved, as of- fered, that the plaintiff had received and kept his certificates of stock, a transfer or deliverj' of these certificates, or a tender to the defendants, was necessary to a complete rescission of the contract, and the evidence offered was competent and material. It fol- lows that the order granting a new trial must be affirmed and judgment absolute giv- en for the defendants. This is a fit ease to aUude to the hazardous practice which is becoming so general of risk- ing an appeal to this court from an order granting a new trial, with a stipulation made necessary by statute, tliat in case the order is affirmed, judgment absolute shall be given against the party appealing. There is but n single class of cases, and the individual cases coming witliin it are rare, in which this course can prudently be adopted. It is only proper and admissible, when the sole question that can be presented upon the rec- ord relates to and will determine the merits of the controversy imembarrassed by inci- dental questions affecting the trial, but not necessarily decisive of the true merits of the litigation. If every fact that can affect 't^c result has been upon the trial adjudged fa^ vorably to the party against whom the new trial has been granted, and no exceptions have been taken to the admission or rejection of evidence, or to the rulings upon minor or Incidental questions In the progress of the trial, which, if well taken, will entitle the exceptant to a new trial; in other words, if the objections and exceptions taken at the trial and to the recovery cannot be obviated upon a second trial, but the verdict and judg- ment must nece.s.sarily be adverse to the par- ty against whom the new trial has been grant- ed, if the order and decision stand, an appi-al from the order, with the stipulation for judg- ment absolute in case the order is sustained, may be advisable. But ordinarily, as in this case, there are exceptions, which, if well tak- en, will entitle the unsuccessful party to a new trial, but the decision of which will not finally or necessarily determine the merits of the action or the rights of the parties; and in such cases the exceptions must be clearly frivolous to justify the hazard of an appeal from the order granting a new trial, with the consent to a judgment absolute upon an af- firmance of the order. The decisions of the questions presented by the re(;ord in this case were not necessarily fatal to the plaintiff, but they are made so by the appeal from tbe or- der and the giving of the ordinary statutory stipulation, and the plaintiff loses the benefit of a second trial. The order must be affirmed, and judgment absolute for the defendants. AH concur. Order affirmed. 358 n EEALITY OF COXSEXT. ROWLEY et al. v. BIGELOW et al.i (12 Pick. 307.) Supreme Judicial Court of Massachusetts. Suf- folk and Nantucket. March 19, 1832. Trover for 627 bushels of yellow corn, val- ued at 55 cents a bushel. At the trial, before Wilde, J., it was proved by the plaintiffs, that on the 24 tb of May, 1S30, the corn belonged to them and was in their possession, in the city of New York, on board the sloop [Milan, of which S. Dunning, one of the plaintiffs, was master, and that it was measured and delivered on board the schooner Lion. Tney alleged that one William X. Martin, a merchant there, fraudulently obtained possession of it by pretending to purchase it for cash; and it was proved that on the 25th of May he shipped it on board the Lion, consigned to the defendants at Boston, and tliat the vessel sailed in the afternoon of that day for Boston. On the 26tb, Dunning, having ineffectually demanded payment for the corn, at Martin's counting-house, proceed- ed to Boston to reclaim it He reached Bos- ton before the arrival of the Lion, and on the 20th gave notice to the defendants, to whom by Martin's orders the corn was to be deliver- ed, that Martin had fraudulently obtained it from the plaintiffs, and that they intended to repossess themselves of it On the 30th, when the Lion had arrived in Boston harbour, Dunning boarded her and demanded of the master possession of the corn, giving him no- tice that Martin had obtained it fraudulently from the plaintiffs. The master notwithstand- ing delivered it to the defendants; after which Dunning demanded it of them and tendered them any freight or charges which they had paid. They refused to deliver the corn, and thereupon the suit was commenced. In order to establish the fraud on tne part of Martin, tbe plaintiffs relied on the deposi- tions of C. A. Jackson and others, merchants in Xew York, who testified tii;it Martin had made similar purchases of thorn about the same time, and under circumstances tending to show that he was insolvent, and that he knew it and had no reasonable expectation of paying for the merchandise according to his contract The defendants objected to the ad- mission of these depositions, but the judge permitted them to be read to the jury. The defendants, to establish their right to hold the corn against the plaintiffs, offered in evidence a bill of lading, dated May 17th, 1S30, signed by the master of the Lion, pur- porting to be for 2000 bushels of yellow corn shipped by Martin and consigned to the de- fendants; also an invoice corresponding to the bill of lading and purporting to be for 2000 bushels of corn consigned to the de- fendants for sale on the shipper's account, and signed by Martin; also a letter from Martin to the defendants dated" May 17th (to which the bill of lading and invoice were 1 Irrelevant parts omitted. annexed) advising that he valued on them in favor of Heniy Bennett for .$1000, at ten days' sight, and directing them, if he had valued too much on this shipment, to charge it to some previous one, there being an ex- isting account between Martin and the de- fendants. And it was proved that a bill drawn accordingly by Martin, was accepted by the defendants on the 20th of May and paid by them at maturity. There was no evidence that the defendants had any knowledge of the fraudulent con- duct of Martin, but it appeared that they received the biU of lading and invoice and accepted the draft in the usual course of business. Upon this evidence the judge ruled, that the defendants had a good title to the prop- erty notwithstanding the fraudulent conduct of Martin, and notwithstanding the bill of lading had been signed before the corn was shipped; to which the plaintiffs excepted. A verdict was taken for the defendants by consent; and if the whole court should be of opinion that they had a valid title to the corn, under the invoice and bill of lad- ing, judgment was to be rendered upon the verdict; but if the court should be of opinion that the ruling was wrong, the verdict was to be set aside and the defendants defaulted, unless the court should also be of opinion that the depositions above mentioned were improperly admitted; in which case a new trial was to be granted. Fletcher and W. J. Hubbard, for plaintiffs. Curtis, for defendants. SHAW, C. J. The first question arising in this cause is, whether the depositions of Jackson and others, under the circumstan- ces, ought to have been admitted as compe- tent. These were generally persons, of whom Martin had made similar purchases, of like articles, about the same time, and under circumstances tending to show that he was insolvent and had no reasonable ex- pectation of paying for the merchandise ac- cording to his contract The objection to this evidence is placed on two grounds, first, that these persons having similar claims of their own, some of which are pending here, they have an interest in establishing the fraud which they are called to prove; and secondly, that the transactions being res inter alios, have no tendency to prove the fact in issue in this particular case. But in our opinion, the objection cannot be sustained upon eitlier ground. As to the first, it is quite clear, that the verdict and judgment in this case would not be evidence in either of theirs; that their interest is in the question and subject matter and not in the event of the suit, and therefore that the objection, such as it is, goes to the credit and not to the competency of the witnesses. As to the other objection, we think this evidence- FRAUD. 889 has a direct and material boarins upon the fact in issue. It tends to show, th.it at the time this ostensible purchase was ni:ide, Mar- tin was insolvent, that he knew he was in- solvent, that he had no reasonable ground to believe that he could pay the cash and did not expect or intend to pay tlie casli for the merchandise which ho purchased, and so that he obtained the goods, by false pretenses. The fact of insolvency, of his knowledge of his insolvency, and that he had no expecta- tion or Intenlion of paying for the corn iu question, is a material fact and the principal fact In controversy on which tbis case rests, and Is material to tbe issue. The evidence Ijears upon the question quo animo, the in- tent, the fraudulent purpose. 2. It is ne.xt contended ou the part of the plaintiffs, that no property passed by the fraudulent purchase of Martin, from tbe plain- tiffs to him, so as to enable him to make a title to tlie defendants. The evidence clearly shows that there was a contract of sale and an actual deliveiy of the goods, by their being placed on board a vessel, pursuant to his order; and this deliv- ery was unconditional, unless there was an implied condition arising from the usage of the trade that tbe delivery was to be consid- ered revocable, unless the corn should be paid for, pursuant to the contract and to such usage. This contract and delivery were sutli- oient in law to vest the propertj' in Martin, and make a good title, if not tainted by fraud. But being tainted by fraud, as between the immediate parties, tbe sale was voidable, and the vendors might avoid it and reclaim tbeir property. But it depended upon them to avoid it or not. at their election. They might treat the sale as a nullity and reclaim their !::;>od.s; or affirm it and claim the price. And »:i;-:".s m?^ be imagined, where the vendor. notwithstanding such fraud, practised on him, might, in cou.sequence of obtaining security, by attachment or otherwise, prefer to affirm the sale. The consequence therefore is, that such sale is voidable, but not absolutely void. The consent of the vendor is given to the transfer, but that consent being induced by false and fraudulent representations, it is cou- traiy to justice and right, that the vendor should suffer by It, or that the fraudulent pur- chaser should avail himself of it; and upon this ground, and for tbe benefit of the vendor alone, the law allows him to avoid it. The difference between the case of property thus obtained, and property obtained by felony, is obvious. In tbe latter case, no right either of property or possession is ac- quired and the felon can convey none. We take the rule to be well settled, that where there is a contract of sale, and an ac- tual delivery pursuant to It, a title to the prop- erty passes, but voidable and defeasible as be- tween tbe vendor and vendee, if obtained by false and fraudulent representations. The vendor tberefore can reclaim bis property- a.s against tbe vendee, or any other person claim- ing under him and standing upon his title, but not against a bona fide purchaser without notice of the fraud. The ground of exception in favor of tbe latter is, tbat he purchased of one having a possession under a contract of sale, and with a title to tbe property, tbough defeasible and voidable on the ground of fraud; but as tbe second purcha.ser takes without fraud and without notice of the fraud of the first purchaser, he takes a title freed from the taint of fraud. Parker v. Patrick, 5 Term R. 175. The same rule holds in re- gard to real estate. Somes v. Brewer. 2 Pick. 1S4. • •••••• Judgment on tbe verdict ,so ^^ V^ EEAUTY OF CONSENT MALLORT V. LEACH. (35 Vt. 156.) Supreme Court of Vermont. Rutland. Feb. Term, 1862. Case. The declaration set forth that the plaintiff was the owner of fifty shares of the capital stock of the Franklin ♦Minino; Company, of the true value 'IS? and situation whereof she was ig- norant, and had no means of accurA.te in- formation, and that the defendant under- took, at her request, to ascertain and com- municate to her the value of such stock; that said stock was worth thirteen hun- dred dollars, which the defendant ascer- tained, but that he, contriving and intend- ing to defraud the plaintiff, and to obtain said stock from her at much less than its just value, did not communicate to the plaintiff or inform her of its true value or the facts in relation thereto, but fraud- ulentlyconcealcd and suppressed thesame, and fraudulently induced the plaintiff to believe that the said stock was of much less value than it really was, and also falsely represented that the same was oi much less value than it really was; and also falsely represented that the same was about to be subject to a large assessment, when in fact, and as the defendant well knew, said assessment was only tw"o dol- lars upon a share; that by means thereof the defendant then and there induced the plaintiff to transfer to him (and for his benefit, )the said stock for the sum of two hundred and seventy-five dollars paid her therefor by him, being much less than its real value as aforesaid; that the plaintiff believed and relied upon said representa- tions, and was wholly ignorant of the facts so concealed and suppressed by the defendant as aforesaid, and of the true value of said stock, and supposed that the defendant had fully communicated to her his knowledge on the subject: and that she therefore did transfer said stock to the defendant, and for his benefit, for said last mentioned sum and no more; and that the defendant received and converted the same to his own use, and immediately sold the same for the sum of thirteen hundred dollars ; and that thereby the plaintiff took the whole value of said stock over and above the sum of two hundred and seven- ty-five dollai's, to wit: ten hundred and twenty-five dollars. Linsley & Prout and E. J. Phelps, for plaintiff' I). Roberts, E.N. P>riggs, and D. E. Jsichdison, for defendant. ALDIfS.J. I. As to the alleged variance, it may be observed that it consists in averring the injury occasioned by the plaintiff's fraud to be greater than it was proved to be. But in the averment of damages it is not necessary to be exact; and the proof need not sustain the allega- tions in this respect. II. The parol evidence was admissible aa tending to show the fraud — not as qualifying the written contract. It tend- ed to show a special confidence and rela- tion between the parties, in regard to this business, and, if proved, to the satisfac- tion of the jury, to have existed in the outeet, and to have continued to the time of the re-purchase b^- the defendant, must materially have given character to both the defendant's words and silence, as in- tended to induce the plaintiff to act under a delusion. This leads us to the main point, viz.: the testimony on the part of the plaintiff, and the charge of the court in regard to it. The testimony of the plaintiff tended to show, that the defendant, in advising her to buy the fifty shares of mining stock, professed to act as her friend, from a de- sire to invest her money so as to make her inde])endent, and in a mode that was to be kept secret from all but her father and mother, and with his own guarantee that she should get back her money and at least twenty per cent, interest. He told her that as he was interested in the stock he would keep her informed as to its situ- ation and value, and that he should go to the mines in June, IbifiO. This declaration of the defendant is to be considered in con- nection with the fact that by the written contract she was to decide on the 1st July, 1S59, to keep or to sell her stock. That such language would strongly tend to beget confidence and trust in the de- fendant, and lead the plaintiff to rely •166 upon his advice, and to be *guided by it on his expected return from the mines in June, 1850, is obvious. This must have been the purpose for which he thus advised her; and we think he must have been aware of the effect that it pro- duced on her mind at that time. Now if this relation of trust and confidence con tinned from December, 1857, when she bought the stock, to July, 1S59, when she sold it to the defendant, and he at the time of his purchase knew that she thus trust- ed in and relied upon his friendship and ad- vice in this matter, it was clearly his duty to tell her of its real value, and it was a fraud to take advantage of her ignorance and buy it at about a quarter of its mar- ket price. But if during this period of time this relation of confidence ceased to exist, and alienation and distrust had taken its place, then it is obvious that he could not have supposed she was relying upon his friendship and advice in this business, and was not under obligation to give her in- formation in regard to the value of her stock. There was testimony on the part of the defendant tending to establish this state of facts. The fraud of the defendant (if any) consisted in taking advantage of the confidence which he knew the plaintiff put in him, and which he had sought to win; but if she had lost her confidence in him, he could no longer take advantage of it. The court distinctly stated to the jury that no obligation rested upon the defend- ant by virtue of the contract to inform her of the real value of the stock. To have required that would have been to add a new clause to the contract. The court then proceeded to refer to those cir- cumstances which gave rise to a relation of trust and confidence betv.ecnthe parties In this matter, and made it the duty of the defendant to inform her of what he knew as to the value of the stock, and then said to the jury, "because he had placed him- FllAUD. 391 self iu such a relation it would be a fraud In liim to receive back tlie stock without giviiip: her the knowie(l;;e he possesKcd." Tliis put the case cle.-irly on the ground of fraud in takinj? advaiitnfj^e of a confidence he had souf^ht, and which he knew was placed in him. The doubt we have felt, In rej^ard to the correctness of the charjj^e in this respect, is whether tlie court siiirR-iently called the attention of tlie jury to the fact tliat this relation of confidence *iniist ex- *167 ist between the parties at the time of the re-purchase by the defendant, and to tliose circumstances shown on the part of the defendant tending? to prove that the relation had ceased to exist. AVe have carefully examined the exceptions on this point, and can not but regret that the statement in this respect is not more sat- isfactory. It does not appear that tlie de- fendant in his requests to the court called their attention to this part of the defence, or made any request in regard to it. The defendant's evidence was admitted. The court treated the promise of tlie defend- antto inform hurof thesituation and value of thestock from limetotimeas aeontinn- ing promise, and seem to carry theidea that the plaintiff must havecontinued torely on it. Asthereis no direct request to charge in regard to this part of the defence, and as no exception was taken on the ground of an omission in this respect; and as It would have been the duty of the defendant to have called the attention of the court to tins point, if not sufliciently referred to in the ch^irge, and as the general tenor of the charge seems to require that the con- fidence should have existed at the time of the re-sale, we think we should not be jus- tified in opening the case on this ground. The defendant further claims that the charge of the court in regard to the rep- resentation made by the defendant, that there was about to be a large assessment made upon tlie stock, was incorrect. The substance of the charge is, — if the defend- ant said this with a view to mislead the I»laintiff as to the value of the stock — if the fact was calculated to depreciate its value and to induce her to sell at a price less than the value, and she was thereby deceived and induced to sell, he would be liable unless he disclosed his knowledge of facts tending to enhance its value. 1. This does not assume as matter of law. that the fact would depreciate its value and induce her to sell. That ques- tion is left to the jury. It is obvious that ordinarily an assessment of •2.") per cent, up- on stock, unexi)lained, would lead the holder to suspect something migiit be wrong; especially if it was not expected by stockholders that such an additional payment was to be made. So if the hold- er of the stock was a poor person, and un- able without trouble and incon ven- ules icnce to raise the sum assessed, it *would tend to induce such person to sell the stock. We think the evidence admissible as tending to show that the defendant made declarations which he must have been aware would embarrass the plaintiff and lead her to wish to part with her stock. It was telling the truth, but not the whole truth. It was telling it in a man- ner to produce the effect of a falsehood. The defendant must have felt that what he said would depress the plaintiff's esti- mate of herstock — would lead hertotiiink its value much less than it was; and he knew she was ignorant of its true value. Now he migiit be silent — migiit say noth- ing; but he had no right t54; and the court say: '"riiere is no principle or au- thority showiiifj: that where a person has been defrauded by another in iiiakin;jj an executory contract, a subsequent perform- ance of it on his part, even with iinowl- edge of the fraud, acquired subsequent to the inakinc: and ijrcvious to the perform- ance, bars iiiiii of any remedy for liis dam- a^es for the fraud. The party defrauded, by performing his part of the contract with knowledf^e of the fraud, i.s deemed to have ratified it, and is precluded thereby from subsequently disatlirminj? it. That Is the extent of the rule. His ri^ht of ac- tion for the fraud remains unaffected by Buch performance. I'.ut having gone on after discovering the fraud, he cannot aft- erwards disaflirm the bargain, or sue for the consideration." The priuciule and its reason apply to this case. Upon this sub- ject see Long on Sales, 219. 240; 2 Kent's Com.4sO; ?, Frost. (N.H.) .-j2U: 10 Ind. 4.30; the remarks of Siikrma.n, J., in 14 Conn. 424-425; .". .McLean, 170, Fed.Cas. .No. 6.;i4S; 9Cush. 200. Judgment afflrmed. 894 ^ REALITY OF CONSENT (^0 BROWN V. PIERCE.i ^^J-/ (7 Wall. 205.) Jf^ Supreme Court of th(> United States. Dec, 1S6S. Error to the supreme court, Nebraska tern- 1 tory. Brown filed his bill in September, 1860, In the court below agaiust three persons, Pierce, Morton, and Weston, alleging that In the spring of 1S5T, he settled upon and improved a tract of land near Omaha; that he erected a house on the tract and continued to occupy it until August 10th, 1S57, when he entered the tract under the pre-emption laws of the United States; that Pierce clai m ed the land by virtue of the laws of an organization known as the Omaha Claim Club; that this organization, consisting of very numerous armed men, sought to, and did to a great ex- tent, control the disposition of the public lands in the vicinity of Omaha in 1857, in defiance of the laws of the United States; that it frequently resorted to personal vio- lence in enforcing its decrees; that the fact was notorious in Omaha, and that he. Brown, was fully advised in the premises; that as soon as he had acquired title to the land, Pierce, together with several other members of the club, came to his house and demanded of him a deecTof 'tB6 land, threatening to take ^ life by hanging him, or putting him in the Missouri river, if he did not coiiiply with tleTIemanUrtKat the club had posted hand- bills calling the members together to take ac- tion against him; and that knowing all this, and in great fear of his life, he did, on the 10th of August, 1S57, convey the land by deed to Pierce; that he. Brown, received no con- sideration whatever, for the ccmveyance; that fi-om the date of his settlement upon said land, until the time of filing the bill, he had contin- ued to keep possession either actually or con- structively; that Morton claimed an interest in the premises by virtue of a judgment lien, and that Weston also made some claim. The prayer was, that the deed might be de- clared void, and Pierce be decreed to recon- vey, and for general relief. The bill was taken pro confesso as to all the defendants, except Morton, who answered. This answer, stating that he, Morton, was not a resident of the territory, and had no knowledge or information about the facts al- leged in the bill, but on the contrary was an utter stranger to them, and therefore could not answer as to any belief concerning them, — set forth that on the 28th August, 1857, Pierce was "the owner and in posses.sion of, and oth- erwise, well seized and entitled to, as of a good and indefeasible estate of inheritance in fee simple," the tract in controversy; that being so, and representing himself to be so, and having need of money in business, he applied to him, Morton, to borrow the same, > Irrelevant parts omitted. and that he, Morton, being Induced by rea- son of the representation, and also by the- possession, and believing that he. Pierce, was the owner, he was thereby induced to lend, and did lend to him $6,000, on the per- sonal security of him. Pierce; that before the fiUng of this bill by Brown, he, Morton, had obtained judgment against Pierce for $3400, part of the loan yet impaid; that this judg- ment was a lien on the lands; and that as he, Morton, was informed and believed, if he could not obtain his money from this land, he would be whoUy defrauded out of it. The answer further stated that the defend- ant was informed and believed that Brown, the complainant, entered upon the lands as the tenant of Pierce, and that the suit by the complainant was being prosecuted in viola- tion of the just rights of Pierce, as well as of him, Morton. There was no replication. Proofs were tak- en by the complainant, and they showed to the entire satisfaction of the court that all the matters alleged in the bill and not denied by the answers, were true. There thus seem- ed no doubt as to the truth of all the facts set out in the bill. The court below declared Brown's deed void, and decreed a reconveyance from Pierce to him, and that neither Morton nor Weston had any lien on the premises. Morton now brought the case here for review. Carlisle & Woolworth, for appellant ick & Briggs, contra. Red- Mr. Justice CLIFFORD delivered the opin- ion of the court Representations of the complainant were, that on the tenth of August, 1857, he ac- quired a complete title to the premises de- scribed in the bill of complaint, imder the pre-emption laws of the United States, and that thereafter, on the same day, he was com- pelled, through threats of personal violence and fear of his life, to convey the same, without any consideration, to the principal respondent Framed on that theory, the bill of complaint alleged that the first-named re- spondent was at that time a member of an unlawful association in that territory, called the Omaha Claim Club, and that he, accom- panied by three or four other persons belong- ing to that association, came to 'his house a few days before he perfected t^is right of pre- emption to the land in question, and told the complainant that if he entered the land under his pre-emption claim, he must agree to deed the same to him, and added, that unless he did so, he, the said respondent and his asso- ciates, would take his life; and the complain- ant further alleged, that the same respondent, accompanied, as before, by certain other members of that association, came again to his house on the day he perfected his pre- emption claim, and repeated those threats of personal violence, and did other acts to lOr DURESS. 395 tlmlflato him, and Induce him to believe that ' thc3' would cavvy out their throats if he re- fused to execute tlie deed as required. Based upon those allejcation.s, the charge is that the complainant was put in duress by those threats and acts of intimidation, and that he sigrned and executed the deed, and conveyed the land by means of those threats and certain acts of intimidation, and through fear of hLs life, and without any considera- tion; and he prayed the court that the con- veyance might be decreed to be inoperative and vtiid, and that the grantee might be re- quired to reconvey the same to the complain- ant. * • • * • • • Argument to show that a deed or other written obligation or contract, procured by means of duress, is inoperative and void, Is hardly required, as the proposition is not de- nied by the respondent Actual violence is not necessary to constitute duress, even at common law, as understood in the parent countx'y, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compul- sion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no con- tract, because, in that state of the case, there is no consent Duress, in its more extended sense, means that degree of constraint or danger, either , actually inflicted or threatened and impond- . ing, which is sufficient, in severity or in ap- j \ prehension, to overcome the mind and will of/ \a person of ordinary firmness. Text-writers usually divide the subject into two classes, namely, duress per minas and duress of imprisonment and that classiflca- tion was uniformly adopted in the early his- tory of the common law, and is generally pre- served in the decisions of the English courts to the present time, 2 Inst 482; 2 Rolle, Abr. 124. Where there is an arrest for an improi)er purpose, without just cause, or where there is an arrest for a just cause, but without law- ful authority, or for a just cavise, but for an unlawful purjiose, even though under proper process, it may be construed as duress of im- prisonment; and if the person arrested exe- cute a contract or pay money for his release, he may avoid the contract as one procured by duro,ss, or may recover back the money in an action for money had and received. Richard- son V. Duncan, 3 N. H. 508; Watkins v. IJaird, G ^Lass. 511; Strong v. Graunis, 20 Barb. 124. Second class, duress per minas, as defined at common law, is where the party enters into a contract (1) for fear of loss of life; (2) for fear of loss of limb; (3) for fear of may- hem; (4) for fear of imprisonment; and many modern decisions of the courts of that coun- try still restrict the operations of the rule within those limits. 3 Bac, Abr. tit "Du- ress," 252. They deny that contracts procured by men- ace of a mere battery to the person, or of trespass to lauds, or loss of goods, can be avoided on that account, and the reason as- signed for this qualification of the rule is, that such threats are held not to be of a na- ture to overcome the mind and will of a firm and prudent man, because it is said that if such an injury is inflicted, sufficient and ade- quate redress may be obtained in a suit at law. Cases to the same effect may be found also in the reports of decisions in this country, and some of our text-writers have adopted the rule, tliat it is only where the threats ut- tered excite fear of death, or of great bodily harm, or unlawful imprisonment, that a con- tract, so procured, can be avoided, because, as such courts and authors say, the persou threatened with slight injurj- to the penson. or with loss of property, ought to have suffi- cient resolution to resist such a threat, and tu rely upon the law for his remedy. On the other hand, there are many Amer- ican decisions, of high authority, which adopt a more liberal nile, and hold that contracts procured by threats of battery to the persou, or the destruction of property, may be avoid- ed on the ground of duress, because in such a case there is nothing but the form of a con- tract, without the substance. But the case under consideration presents no question for decision which requires the court to determine which class of those cases is correct, as they all agree in the rule that a contract procured through fea r of loss of life , produced by the threats of the other party to the contract, wants the essential element of consent, and that it may be avoided for du- ress, which is sufficient to dispose of the pres- ent controversy. 896 REALITY OF CONSENT. SFAIDS V. BARRETT et aL» (57 111. 2S9.) ^ ■z^'^ Supreme Court of Illinois. September Term, 1870. Appeal from t±ie superior court. Cook coun- ty; Joseph E. Gary, Judge. Sleeper & Wbiton, for appellant Henry S. Monroe, for appeUees. THORNTON, J. The question presented in this case, as to the sufficiency of the dec- lai-ation, will be considered as on motion 'xs. ai-rest of judgment. The demurrer was properly sustained to the second count It is nothing more than a count in slander, based upon an alleged libel- lous affidavit filed in a legal proceeding. Whatever is said or written in such proceed- ing, pertinent and material to the matter in controversy, is privileged, and no action can be maintained upon it 1 HiL Torts. 344; Warner v. Paine, 2 Sandf. 195; Garr v. Sel- den, 4 N. Y. 91. The first count alleges that the plaintiff was a dealer in oysters, and doing a large and lucrative business, and was indebted to ap- pellees for transportation, &c, in the sum of §1,000, which he was able and willing to pay; and that they, maliciously intending to injure him and deprive him of his business, procured Barrett, one of appellees, to make an affidavit and that he did make an affida- vit that plaintiff was indebted to the express company in the sum of 5;2,996.30, for trans- portation, &c., and that he had fraudtilently conveyed and assigned his property, and was about fraudulently to conceal, assign, or otherwise dispose of his property, so as to hinder and delay his creditors; and that ap- pellees then filed said affidavit with the clerk of the circuit court of Cook coimty, and ob- tained a writ of attachment, and procured the levy thereof upon .^5,000 worth of oysters, and deprived the plaintiff of possession, and neglected to take care of them, by reason whereof they became of no value. The declaration further alleges that it was not true that the plaintiff had fraudulently conveyed or assigned, or intended to conceal and assign, his property, so as to hinder and delay his creditors; that he was not indebt- ed in the amount mentioned In the affidavit; and that the same was false and fraudulent, and well known to be so by appellees; and that they, wickedly and maliciously intend- ing to injure, and extort a large sum of money from, him (nearly $2,000 more than was due upon a fair accounting), refused to permit the oysters to be delivered to him, ex- cept on the payment of the sum in the affi- davit mentioned; and that he, under protest and to save his property from utter ruin, paid the same, not knowing that the oysters had 1 Irrelevant parts omitted. sustained serious injury, by reason of the carelessness of appellees. To this count, the geneial issue and a spe- cial plea of release were liled. To the special plea the plaintiff replied non est factum, and that the release was ob- tained by duress of property. A demurrer was interposed to the special replication, which was sustained, and the plaintiff abided. Three questions are raised by the record, and in the argument: First. Is the special replication a good defense? Second. Is not the plaintiff restricted to his remedy on the attachment bond? Third. Is the count bad, on motion in arrest, for omitting to aver the termination of the suit and the want of probable cause? Upon the first question the authorities dif- fer. All promises made and contracts en- tered into, where there is duress of the per- son, may be avoided. The reason is, that the person is induced to do the act by re- straint of his liberty, or menace of bodily harm. But it has been held that an agree- ment, made under duress of goods. Is not void, and that the person thus circumstanced must exeit himself and resist the compul- sory influence, when his property is in dan- ger. We cannot appreciate the difference. Liberty and life are justly dear to all men, and so is the exclusive right to possess, dis- pose of, and protect from destruction, our property. We cannot .fOi£gLet_.t±La-iactJ;hat the, desire for property is a stro.og.^afi (13 N. E. 596, 145 Mass. 153.) ^ ^ Supreme Judicial Court of Massachusetts. Worcester. October 20, 1887. W. S. B. Hopkins and StiUman Haynes, for plaintiflf. Norcross, Haxtwell & Baker, for defendant, HOLiMES, J. This is an action upon a prom- issory note made by the defendant and her husband to the order of the plaintiff. The de- fendant alleges that her signature was obtain- ed by duress and threats on the part of her husband. The judge below found for the plain- tiff, it would rather seem on the ground that, whether there was duress or not, the defend- ant had ratified the note,, which there seems to have been evidence tending to show that she did. See Morse v. Wheeler, 4 Allen, 570; Rau V Yon Zedlitz, 132 Mass. 164. But, as this may not be quite clear, we proceed to consider the only exception taken by the defendant, — the judge's refusal to rule that, if the defend - ant signed the note under dtu^lfe, it was_ 150- material whether the plaintiff knew when he received the note that It was so signed. The exception is to this refusal. No doubt, if the defendant's hand had been forcibly taken and compelled to hold the pen and write her name, the signature would not have been her act, and if the signature had not been her act, for whatever reason, no contract would have been made, whether the plaintiff knew the facts or not. There still Is sometimes shown an inclination to put all cases of du- ress upon this ground. Barry v. Society, 59 X. Y. 5§7, 591. But duress, like fraud, only becomes material, as such, on the footing that a contract or conveyance has been made which the party wishes to avoid. It is well settled that when, as usual, the so-called "duress" consists only of threats, and does not go to the height of such bodily compulsion as turns the ostensible party into a mere machine, the contract Ls only voidable. Foss v. Hildreth, 10 Allen, 26, 80; Vinton v. King, 4 Allen. 561, 565; Lewis v. Bannister, 16 Gray, 500; Fish- er V. Shattuck, 17 Pick. 252; Worcester v. Eaton, 13 Mass. 371, 375; Dimcan v. Scott, 1 Camp. 100; Whelpdale's Case, 3 Coke, 241; 1 Bl. Coram. 130; Clark v. Pease, 41 N. H. 414. This rule neces-sarily excludes from the common law the often recurring notion, just referred to, and much debated by the civilians, that an act done under compulsion is not an act, in a legal sense. Tamen Coactus Volui, D 4, 2, 25, § 5. See 1 Windscbeid, Pan- dextien, § 80. Again, the ground upon which a contract is voidable for duress is the same as in the case of fraud, and Is that, whether It springs from a fear or a belief, the party has been subjected to an Improper motive for action. See Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805; Stiff v. Keith, 143 Mass. 224, 9 N. E. 577. But, if duress and fraud are so far alike, there seems to be no sufficient reason why the limits of their operation should be different. A party to a contract has no con- cern with the motives of the other party for making it. If he neither knows them nor is responsible for their existence. It is plain that the unknown fraud of a stranger would not prevent the plaintiff from holding the defendant. Master v. MiUer, 4 Term R. 320, 338; Masters v. Ibberson, 8 C. B. 100; Sturge V. Starr, 2 Mylne & K. 195; Pulsford V, Richards, 17 Beav. 87, 95. The authorities with regard to duress, how- ever, are not quite so clear. It is said in Thoroughgood's Case, 5 Coke, 241, that, "if a stranger menace A. to make a deed to B., A. shall avoid the deed which he made by such threats, as well as if B. himself had threaten- ed him, as it is adjudged, 45, B 3, 6a." Shep. Touch. 61, is to like effect. See, also, Fowler V. Butterly, 78 N. Y. 68. But in 43 Y. B. E 3, 6 pi. 15, which we suppose to be the case referred to. It was alleged that the imprison- ment was by the procurement of the plain- tiff; and we know of no distinct adjudication of binding authority that threats by a stran- ger, made without knowledge or^riyKy'af the partjj__are._good ground for avoiding a con- tract induced_by them. In Keilway, 154a. pi. 3,~"'The~^efendant in debt pleaded that he made the obligation to the plaintiff by dinress of imprisonment (on the part) of a stranger, and the opinion of Rede and others was that this is not a plea without making the obligee party to this duress." In Taylor v. Jaques, 106 Mass. 291, 294, It was said that the de- fendant bad to prove that he signed the note "under .a reasonable and well-grounded belief, derived from the conduct and declarations of the plaintiffs, that if he did not sign It he would be arrested." See, also, Green v. Scran- age, 19 Iowa, 461, 460; Talley v. Robinson's Assignee, 22 Grat. 888; Bazemore v. Freeman, 58 Ga. 276. Loomis v. Ruck, 56 N. Y. 462, was decided on the ground that, if the non- negotiable note in suit was in the first in- stance a contract between the plaintiff and the defendant, it was obtained through the agency of tiie defendant's husband in such a way as to make the plaintiff answerable for his conduct. Moreover, the older writers liken- ed duress to infamcy, and took a distinction between feoffments, etc., by the party's own hand, and acts done by letter of attorney, re- garding the latter as wholly void. 2 Co. Inst 483; Finch, Law, 102. It has been held in New York and some other states, as well as in England, that a power of attorney given by an infant Ls void. Fonda v. Van Home, 15 Wend. 631; Knox v. Flack, 22 Pa. St. 337; Saunderson v. Marr, 1 H. Bl. 75. And If this analogy were followed the contracts in all the New York cases which we have cited would be void by the law of that state for want of a personal delivery by the defendant to the plaintiff. There may be still other explanations of the decisions. In the present case it does not appear who delivered the note, and does not clearly ap- DURESS. 401 pear that the defendant did not deliver It herself. If anj- question of authority were open, it would have to be noticed that in Massachusetts the distinction as to power of attorney has been so limited, if not whoily done away with, with regard to infants, that It would be doubtful, at least. If it could have H0PK.8ELuCA8.C0NT. — 28 any application to the rnse at bar. Whitney V. Dutch, 14 Mass. -iiiT, -VjS; Welch v. Wolcli, 103 Mass. 5G2; Moley v. Brine. 120 Mass. 324. Ilowever the law m.iy stand olsewherf. we are of opinion that the rulin;; rt.tiuc'.-;''^d waa wrong upon principle and authority. Exf p- tion overrulid. REALITY OF CONSENT. COWEE V. CORNELL. (75 N. Y. 9L) Court of Appeals of New York. Nov. 12. 1S78. Appeal from order of the general term of the supreme comt in the Third judicial de- partment, reversing a judgment entered upon the report of a referee. Plaintiff made a claim against the estate of Latham Cornell, of whose will defendants were the executore, for interest upon a prom- issory note executed by the deceased. This claim \j-as rejected, and was referred by stip- ulation. The facts, as stated by the referee, are in substance as follows: Latham Cornell, the deceased, was the grandfather of Latham C. Strong. He was possessed of large property, consisting of real estate and of personal property invested in stocks, bonds and other securities. He died in 1S7G at the age of ninety-five. For four years prior to his death he was partially blind. From July, 1871, until the time of his death, his grandson at his request at- tended to his affairs, writing his letters, look- ing after his banking business and liis rents, making out his bills, cutting off his coupons, readiug to him, and on occasions going away from home to transact other business. In July, 1S71, Cornell gave to Strong a deed of two adjoining houses in the city of Ti-oy, valued at about $o2,000, in one of which houses the grandfather lived until the time of his death. The grandson moved into the adjoining house in the spring of 1872, and resided there until after his grandfather's death. During the time that the two thus lived in adjoining residences, they were in daily conference upon business matters of the old gentleman, in the house occupied by the grandson. The grandson with his family consisting of live persons, during all this time lived at the sole expense of the grandfather, and claims to have received, in addition to the note in suit, as gifts from his grand- father, .$30,000 in government bonds and the assignment of a mortgage for about $1,700. At what particular time it is claimed these gifts were made is not in evidence. Mr. Cor- nell made his will in 1871, providing a legacy of $15,000 for Mr. Strong. In the fall of 1872, Mr. Strong expressed a desire to go in- to business for himself and to be independent of his grandfather, and actually was in ne- gotiation with different persons in Troy and New York with a view of forming business associations. Mr. Cornell became uneasy at the prospect of losing the services of his grandson and caused him to be written for to come home. Mr. Strong came back to Troy, and his grandfather said to him then, as he had previously said, that he wanted him to give up his ideas of leaving and to devote his whole time to the business of his grandfather, ilr. Cornell further said that he had no one else to look after his business, and frequently said that there was money enough for all of them. :Mr. Strong innne- diately abandoned his business projects and devoted his whole time and attention to his grandfather's business, until the death of the latter. After this Mr. Cornell sent for his legal advisers and proposed to alter his will so as to make provision to compensate his grandson for having devoted himself to his business. What provision was intended is not disclosed by the evidence. The lawyers advised that his will be left unaltered, and that he take some other way of compen- sating his grandson. Mr. Cornell gave to Mr. Strong the note in question. It is as follows; "$20,000. Troy, April 1, 1873. Five yeaif after date I promise to pay Latham L. C. Strong, or order, $20,000, for value received, with interest yearly. L. Cornell." The note was on a printed form, the name of the payee being printed "Latham Cornell." The note was filled up in the handwriting of the maker, but in stilking out with his pen the name of the payee he left the word "Latham" and afterwards interlined the full name, "L. C. Strong." Annexed to the note was a stub with some printed forms, on which Mr. Cornell wrote: "Troy, April 1st, 1873, L. C. Strong, $20,000 at five years, to make the amount the same as Chas. W. Cornell." The stub was on the note when it was delivered to the payee, but was torn off by him before it was transferred to the plain- tiff; and there is no evidence that the plain- tiff ever knew of the existence of the stub. The stub and note were taken from a blank book which belonged to decedent. No pay- ment of interest was made upon the note . during the lifetime of the maker-. The ref- eree found that the note was given for a valuable consideration. INIr. Strong sold the note to the plaintiff for $19,000, taking his note, pajable in one year after date. What that date was has not been disclosed. Mr. Strong testified at the trial that he still held the note. Mr. Strong was one of the execu- tors. Further facts are stated in the opinion. Irving Browne, for appellant John Thomp- son, for respondents. HAND, J. The counsel for respondents suggested at the close of his argument be- fore us that there was no evidence of a de- livery of the note to Strong, the payee, and the finding of delivery by the referee was entirely unsupported. He does not however make this a point in his printed brief, and did not present it strenuously or with any emphasis in his oral remarks. It is true that the evidence in this respect was not very satisfactory. Ordinarily the possession and production of the note by the payee will raise a presumption of delivery to him. But this presumption must be very much weakened when the possession is shown not to precede the possession of all the maker's papers and effects by the payee UNDUE INFLUENCE. 403 as executor, when tlie note appears to liave been all in the handwritinj,' of the maker and to have been talcen with a stub attached, also in his handwriting', from a bank book belonj^inj? to him, and when installments of interest falling due in the maker's life-time were not paid and although years elapsed after they so became due bef;;re his death there is no proof of any demand of ...i m by the paj'ee or recognition of liability by the deceased. I am not prepared to say however that these circumstances absolutely destroy the presumption from possession and produc- tion of the instrument. While some evidence on the part of the plaintiff, showing that the note had been delivered to Strong in his grandfather's life-time, or at least negativ- ing the idea that Strong found it in the bank- l)Ook or among the papers of the deceased when he took possession of them as executor, could probably have been easily produced if consistent with the fact, yet we cannot hold Its absence conclusive against the plaintiff upon this point, upon the record as it stands. No motion for judgment or to dismiss was made on this ground by the respondents al- though the trial was in other respects treated by the counsel on both sides as one before a referee appointed in the ordinary way to hear and determine and direct judgment as in an action, and we cannot say but that if the plaintiff had been notified of such an ob- jection, the evidence would have been sup- plied. The finding of the delivery by the referee was not even excepted to. although there were exceptions to the finding of con- sideration. Under these circumstances we must, I think, assume an acquiescence in the truth of the finding by the respondents for reasons known to them, and which if dis- closed would probably be entirely satisfac- tory. The majority of the general term put their reversal of the judgment upon the ground that it conclusively appeared from the stub attached that the note was intended as a gift and was without consideration. In this I am unable to concur. The referee's finding that the note was de- livered not as a gift but for a valuable con- sideration has some evidence to support it, in the proof of the services rendered by Strong to the deceased, and his abandonment of a profession at the request of the deceased, in the intention expressed by the latter to make some compensation for those services, and the conversation had with his counsel not very long before the date of this note, in which he was dissuaded from making this compensation by will and advised to do it while alive, to which he assented. What ap- pears upon the stub is not in my opinion conclusive against this result. There Is perhaps difficulty in giving any entirely satisfactory construction to this memorandum made by the deceased; but the interpretation of the general term seems to my mind inconsistent with the known facts - of the case. Strong certainly had had and I the deceased knew that be had had property of the value of $32,0(jr the minority has ceased, and the relation thereby actually ended, if the intermediate period be short, unless the circumstances demonstrate, in the highest sense of the term, the fullest deliberation on the part of the ward, and the most abundant good faith on the part of the guardian; for. in all such cases, the relation is still considered as hav- ing an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attaching to the situation have not ceased; as if the accounts between the parties have not been fully settled, or if the estate still remains, in some sort, undi^r the control of the guardian.' " Here the ward was a female, barely past the age of 18 years, practically without knowledge or experience in business affairs. The peculiar interests of the guardian were opposed to her own. His wife then owned tlie other two-thirds of the realty in question, and by this deed was acquiring the third be- longing to the ward. The ward was induced to execute a deed, prepared by the guardian for her signature, for an inadequate consid- eration, greatly less than the real value of her interest, unless there be taken into considera- tion her prior support and maintenance in her sister's family. True, the presumption of undue influence of the guardian is attempt- ed to be overthrown by proof. But as said in the case just quoted from: "The presump- tion of influence on the part of the guardian, and tlie dependence of the ward, continues after the legal condition of guardianship has ended; and transactions between them dur- ing the continuance of the presumed influence of the guardian will be .set aside, unless shown to liave been the deliberate act of the ward, after full knowledge of her rights. In all such cases the burden rests heavily upon the guardian to prove the circumstances of knowledge, and free consent on the part of 407 \ the ward, good faith, and absence of in- fluence, which alone can overcome the pre- sumption." It is not necessary in such cases that actual and Intentional fraud be estab- lished. It is suirifiout when the parties sus- tained the relation of guardian and ward, that the former has gained some advantage by the transaction with his ward, to throw the burden of proving good faith and ab- sence of influence, and of knowledge and free consent of the ward, upon the guardian. This we are not prcp:ired, att/yr the most careful consideration of the evidence, to say has boon done, and the decree of the chancel- lor setting aside the deed mu.st be afllrmed. Nor can It make the slightest difference that the conveyance was made to the wife of the guardian, under whom he sub.sequontly ac- quired title. As already seen, both the hus- band and wife stood in the relation of parents to complainant, while the husljand was guardian. The relations precluded their de- riving advantage from the ward, and it was his duty to protect her estate from spoliation from whatever source. It is next insisted that in respect of the !?S60, which constituted the consideration for the deed, the court should, by its decree, have re- quired return by the ward of the amoimt, or a sale of the ward's interest in the premise;* to pay it, as a condition upon which the dee^ should be canceled. This contention is with- out merit It is true that in case of sale and conveyance of land by the ward to the guard- ian, where the ward afterwards elects to re- pudiate the transaction, and seeks in equity to have the deed set aside, he must do equi- ty, and pay back to the guardian the amount received, or else suffer a decree charging his land with sale to satisfy the same. Wick- iser v. Cook. 85 111. 68. But such is not the case here. By the findings of tlie master, ap- proved by the court, large sums of money were found due tlie ward from the guardian, and in the settlement of which the court by its decree, credited the guai'dian with the above amount, which was equivalent to a payment in money. It would be useless for the court to make the consideration paid a charge on the ward's land when, by an ad- justment of the amounts duo between them, it could, and in fact should, be deductod- There was no occasion for such an order when the guardian could be paid by simply deducting it from the amount owing to the ward. It is further insisted that appellee should take her interest in the property as it was at the date of the deed; that all improvement made thereon belonged to the appellants, sub- ject to the right of appellee to obtain title thereto by contribution of her share of the cost or present value thereof; and the doc- trine in respect of tenants in common — that, where one tenant makes improvements on the premises held by tlicm In common, the court, in making partition, should require due com- pensation therefor, from the other tenants to be made — is invoked in support of this view. 408 REALITY OF COXSEXT. The court found that Mary Ann McParland, grantee in the deed, "was not an innocent purchaser of said real estate, but was charged with and had full knowledge of the fiduciary relation existing, at the time of said contiact and sale of said real estate, between the com- plainant and the guardian, her husband." This finding Is unquestionably sustained by the proof. The grantee was bound to know that her husband, the guardian, had no au- thority, except by order of the probate court, to do otherwise than protect, care for, and preserve the estate for the benefit of his ward, until the latter attained majority or he was legally discharged from his office. She was bound to know the fallibility of her ti- tle, and that, under the circumstances, it was defeasible on attainment of the ward's ma- jority, at the latter's election, and to know, as above shown, that the ti-ansactions be- tween the guardian and ward culminatiug in the making of said deed by the latter to her were liable to be declared fraudulent and void. She was bound to know that it was the guardian's duty to keep the premises in good repair, and render them available as a means of revenue for tlie benefit of the ward, and to this end, with the sanction of the court, to use the ward's cash in his hands for that purpose within reasonable limits. These principles are familiar. But she was a:iso bound to know that he could not, by vu-tue of guardianship, and without any or- der from any competent tribunal, erect build- ings upon the land or make expensive per- manent improvements thereon. And it has been held that where the guardian makes advancement of money for such purpose, without any order of court, he is remediless. Schoiiler, Dom. Rel. § 351; Hassard v. Rowe, 11 Barb. 22; Bellinger v. Shafer, 2 Sandf. Ch. 293. Such, however, has not been as yet tlie holding of this court in such case. But by section 24. c. 64, Rev. St., it is provided: "The guardian may, by leave of the county court, mortgage the real estate of the ward for a term of years not exceeding the minori- ty of the ward, or in fee; but the time of the maturity of the indebtedness secured by such mortgage shall not be extended beyond the time of minority of the ward." In passing upon this section (then section 134 of the statute of wills), this court, in Merritt v. Simpson, 41 HI. 391, where the guardian had mortgaged land of his ward in fee, beyond the period of minority, for money which was used in erecting a brick store on the prem- ises, which brought a large rental, held that such mortgage was nugatory and void as far as the interests of the ward were involved. A.nd it seems to be generally held that the guardian cannot ordinarily execute a mort- gage which will be operative as a lien on the ward's land beyond the term of minority, and the ward, on reaching majority, elects to disaffirm it, and that the only safe course for the guardian to pursue is to first secure the order of court authorizing the mortgage. If there be some statutory provision permit- ting It 1 Jones, Mortg. 102b; Schouler, Dom. ReL § 352; and cases in notes. It would therefore necessarily foUow that Mary Ann McParland, not being an innocent purchaser, but having taken her deed with full knowledge of the guardianship and in- firmity of her title, was bound to know that the mortgaging of said property for the pur- pose of making improvements thereon was, as to the interest of the ward, wholly un- authorized, and done at her peril. She is entitled to no more protection m equity than the guardian himself would be had he taken the deed in his own name instead of his wife's. The legal and logical effects are the same. With such knowledge, she cannot be permitted to take advantage of that which, in legal contemplation, is her own wrong, to bm-den the estate of the ward. And no good reason exists why the ward, might not, after attain- ing majority, demandL, as in case where the guardian himself has placed unauthorized burdens and improvements upon the estate, to be placed in statu quo. Schouler, Dom. Rel. § 348. But the court may, in the exercise of its equity powers, protect indebtedness in- curred for improvements upon the ward's es- tate, upon the theory that the estate has been benefited and the ward received an advantage thereby. Id. § 351; Hood v. Bridport, 11 Eng. Law & Eq. 271; Jackson v. Jackson, 1 Grat. 143; 1 Atk. 489. And this the court did by finding the appellee to be entitled to a one- third interest in the premises, subject to the lien of the trust deeds thereon, which had been given to make said improvements, after the execution of the deed. As to the improvements made upon the old house during appellee's minority, and without any authority from the probate court, appel- lee electing to repudiate all liabiirty therefor, the court held rightfully, we think, that the interest of the ward should not be inaam- ■ bered or chargeable therewith, but that appel- lant and his wife, having placed such improve- ments in violation of the trust, were not, in equity, entitled to recompense for the same. The court, however, decreed that appellants should be allowed to remove the old cottage, which had been remodeled and improved, from the premises within four months, and, in default thereof, that the same should be- come part thereof. Of this ruling we think appellants have no right to complain. These Improvements were placed upon said prem- ises, and the interest of appellee wrongfully burdened to pay for the same. Appellants took the risk, and made such improvements with knowledge that they wei'e doing so wrongfully, and without the shadow of au- thority from any competent source. Numerous objections are made to the mas- ter's report and the decree of the court, as to various amounts charged to appellant as guardian, etc An extended review and discus- sion here of the account as made out by tho master, and the items thereof, would be a use- less task. The principal objection seems to be that the court erred in charging the de- UNDUE INFLUENCE. 409 fondant Jamos McParland with the rental value of that part of the premises upon which the old house was situated and occupied by said Mary Ann McParland, as a hoinostcad for herself and family. And the doctrine of compensation botwoon tenants in common is aj^ain Invoked, and the claim made tliat, for use and occupation of the premises, one ten- ant in common is not liable to account to his cotenants. As we have just seen, counsel contended that one cotenant should be recom- pensed, by proper conti'ibution from the oth- ers, for improvements made upon the estate. And yet the contention is in effect made that, thouffh such tenant may have compensation for improvements, he will not be chargeable by his cotenant with the rents or rental value of the premises occujiied by him, to the exclu- sion of' the others. The Engli-sh rule is that the tenant shall be liable to account to his cotenants in common only for what he re- ceives, not what he takes, more than comes to his just share. In the leadinj? case on this subject, of Henderson v. Eason, 17 Adol. & E. (N. S.) 701, 718, Lord Cottonham held that he was not liable to account for issues and profits derived by such exclusive occu- pancy. Such, however, is not the law of this state. By section 1, c 2, Rev. St, it is pro- vided that, where a tenant "shall take and use the profits or benefits" of the estate in greater proportion than his or her interest, such tenant shall account therefor to his co- tenants, eta And this court, in Woolley v. Schrader, 116 111. 39, 4 N. E. G58, in passing upon this question and construing the statute, after commenting upon the English case above cited, admitted the doctrine of that case to be the prevailing rule of decision in this coun- try, but said: "Yet, by the express terms of our own act, the tenant is required to account to his cotenants for benefits, as well as profits; and we fail to perceive any difficulty in giv- ing effect to this provision of the statute that may not arise in any case whei'e the value of anji;hing is to be ascertained from opinions of witnesses or extrinsic circumstances, par- ticularly in a case like the one before us. The farm in question belonged to four children, 'share and share alike.' It would, as shown by the proofs, have readily rented to others at $ol5 per annum. * ♦ * Appellant, instead of letting the place to others, and collecting annually that amount of money as rental, and paying over to his brothers and sisters their respective shares, appropriated tlie entire farm to himself. To the extent of their inter- est, it was, in effect, appropriating to his own use that amount of money belonging to them; and the question is, shall he account for it? We have no hesitancy in saying he shall." So, here, appellant and his wife, from the date of making his final account as gu;ird- ian, have been in the exclusive possession and control of said homestead premises, as a family home, until tlie death of said Mary Ann McParland and her daughter Catharine, after which the husband and father, appellant James McParland, continued In such posses- sion and control; and there can be no ques»- tion that the court held correctly in charging appellant with what was found to be the reasonable rental value tliereof. It is also insisted that the report of the master and finding of the court as to tlie value of the premises, of the Improvemont-s, rents, etc., were contrarj' to the clear prepon- derance of the evidence. After a careful ex- amination of this testimony, and a consider- ation of the business, experience, character, and means of knowledge of witnesses, we are unable to concur with this view. The wit- nesses produced on each side were numerous, and very many of them upon the part of the defendants were experts, real-estate agents, some of them knowing nothing personally of the particular location, surroundings, and ai>- pearance of the premises, and who based their opinions on transfers and sales of property theretofore made along the street or in the neighborhood of the premises in question. Complainant's witnesses were mainly real- estate agents having their places of business not far distant from the premises, and owners of property in the neighborhood, whose trans- actions in the sales and exchange of realty had made them familiar with the market value of land in that vicinity. And, as is not unusual in such cases, there axe, in some particulars, considerable contradictory esti- mates and opinions; but upon the whole we are not prepared to say that the court was not, upon the whole of the evidence, fully war- ranted in finding as it did. Indeed, as against the testimony of those witnesses produced on behalf of defendants who were merely ex- perts, having no personal knowledge or obser- vation respecting the locus in quo, but basing their value solely on the records as to sales made along the street, the court would be amply justified in relying upon the testimony of witnesses for the complainant who wore aU, it seems, not without some personal knowl- edge of the premises, and many of them familiar with them for many years; and this upon the cleai-est principles of expediency and sound policy. Other objections were made, a discussion of which would not be profitable here. They have aU been practically disposed of in what has been said. TMiile the accounting before the master is somewhat complicated, and the findings by him and the court thereon no/ as clear as might be, yet a careful and stu- dious examination of the record has convinced us that substantial justice has been done; and while we are not entirely satisfied that the court was warranted in entering the de- cree against complainant for .595.25, and mak- ing the same a charge against the complain- ant's interest In the premises, yet such error, If error it was, we do not feel justified in esti- mating of sufficient magnitude of itself, in a case of this importance, to command a re- versal. The decree of the circuit com't will be allii'med. Affir med. KEALITT OF CONSENT. WOOLEY V. DREW ct al. (13 N. W. 594, 49 Mich. 290.) Supreme Court of Michigan. Oct 18, 1882. Appeal from Jackson. Grove H. Walcott for complainant and ap- pellant Gibson. Parkinson & Ashley, for de- , fendants. | MARSTON, J. Complainant comes into court to compel the defendant Elizabeth P. Drew to convey a certain 80 acres of land, which complainant conveyed to her in 1879 under an alleged promise to reconvey in two years thereafter. The complainant's theory is that a certain slander suit was pending against her hus- band; that he had previously conveyed the farm to her; that defendant John F. Drew "excited complainant into the belief that she would lose her homestead, unless she made a conveyance of it to Mr. Drew;" and that in consequence thereof the conveyance was made. The defendants deny all this and claim that the sale made was in good faith for a valuable consideration, and made at the earnest solicitation of complainant and her husband. The case was heard upon tbe pleadings, and proofs taken in open court, and the bill dismissed. The complainant ap- pealed. If the complainant's theory is sustained, the case comes within Bams v. Brown, 32 Mich. 146, and she is entitled to relief. Where the witnesses have been examined in open court, and the case is one that must be governed by the credibility of the witness- es for the respective parties and the weight to be given their testimony, the conclusion arrived at by +he court below should not, upon what might seem to the court a mere preponderance of testimony, be overturned. Tliis case does not however come within that class, where the appearances of the witnesses upon the stand can be given any decisive ef- fect, as the transaction, when reviewed upon the defendants' testimony, shows that it was one so fraudulent and barefaced that it could not be permitted to stand. The complain- ant and her husband jvere uneducated, and they seemed to have had a good deal of trouble with their neighbors, while the de- fendant John F. Drew seems to have had, or claimed to have, considerable knowledge per- taining to legal matters. The complainant and her husband at the time the conveyance was made, evidently were afraid, that be- cause of the slander suit they were in some danger of losing this farm, and that the plain- tiff in that suit and other parties were con- spiring against them to cheat them out of their property. Whether these ideas were suggested to them for the first lime by John F. Drew as complainant claims or not we do not deem it necessary to determine. It Is certain that defendants did not make any effort to allay these, fears, or to assure com- plainants that their proi)erty could not be at- tached in the slander suit, or they be enjoined from transferring their farm because of the pendency thereof. On the contrary these im- pressions were strengthened and the trade consummated within a very short time, a few days after being first mentioned or thought of between the parties. The complainant's farm contained 80 acres, with suitable bxiildings and improvements •thereon of the value of $3,200, upon which there was an incumbrance of $100, and it had also been leased for one year, from April, 1879, the rent to be paid in a share of the crops. Vfhen the complainant and her husband at the house of defendants talked of selling, the defendant John F. offered to give them for their farm a mortgage held by his wife upon a certain house and lot in the city of Jackson, which defendants say the complainant and her husband were ready and willing to ac- cept, and wished to have the necessary pa- pers executed at once, but which defendants put off for a couple of days to enable them to make an examination of complainant's title to the farm. On making this examina- tion the next day, they for the first time ascertained that there was an outstanding mortgage thereon for $100, and they also, before the trade was consummated, learned that the farm had been leased for one year with the privilege of an additional year. The parties met the following day, and defendants say they did not then wish to make the exchange, yet the defendant John F. had procured the necessary blank form of conveyance, and after some little talk de- fendants then agreed to assign the mortgage referred to, and accept a conveyance of the farm subject to the mortgage thereon and give complainant a two years' lease of the same, although no such favorable terms were asked for by complainant, and the trade wns so made, defendant John F. drawing all the papers and taking all the acknowledgements, his wife assigning the mortgage and acknowl- edging the execution thereof before him. This mortgage bore date March 1, 1872, was given by Julia A. Knowles to Sylvester Mc- Michael to secure the payment of $951.49 in three years from the date thereof, with 10 per cent, interest payable semi-annually, ac- cording to a certain bond bearing even date therewith. Defendant John F. Drew had a second mortgage upon this same property : which he foreclosed and bid in at the sale, and afterwards his wife, at his request, took an assignment of the Knowles-McMichael mortgage, the assignment bearing date De- cember 17, 1873. At the time of the assignment to Mrs. Drew, nothing had been paid upon tJiis mortgage, and no payment of either principal or inter- est was made thereafter up to the time of the assignment to complainant. John F. Drew was the owner under his foreclosure proceedings of the mortgaged premises, re- UXDUR INFLUENCE. 411 ceiving the rents and profits thereof. At the time of the assignment thereof to com- plainant, defendants represented the amount due thereon at about ?1,'J00. We suppose the computation was made under the act of 1SG9, which allows interest on Installments after due. Whatever the fact may have l)oen however as to the amount claimed to be due and collectiljle thereon, the mortgaged premises were not considered by the defend- ants as suflicicnt to pay the mortgage; they were not indeed wortli more tlian ijil.GOO, and would not bring near tliat at a public sale. It was the assignment of this mortgage that complainant received for her farm, with a two j^ears' lease thereof. Tliore are some other peculiarities worth noting. Complainant's farm was about seven miles from the residence of defendants. Some 10 or 12 years previous to this trade, defendant John F. Drew "went down liunt- iug on the marsh across that farm," and at this time he did not know who was living on it. He had not been to the farm after that, until a few days before the trade, when he went down to complainant's house to see about hiring a girl, and did not then looli over the farm, as he then had no thought of purchasing it. At the time he examined the title he inquired of the register of deeds what kind of land this was, and says "I thought that his recommend and my memory corresponded." This was the extent of de- fendant's knowledge as to the kind or quality of the soil, or the improvements thereon or salue thereof. The mortgage which he assigned to com- plainant had been acquired by his wife after he became the owner of the mortgaged prem- ises, and another peculiarity, altliongh ac- cording to the recitals in the mortgage, a l)ond purported to have accompanied it, and to have been assigned to complainant ac- cording to the written assignment, yet nei- ther complainant nor Mrs. Drew seems to liave ever seen or possessed this bond. True it is, that complainant did not receive or have any personal obligation for the amount repre- sented by the mortgage assigned her or any part thereof. And it the transaction was an lionest one, why the defendants should not have conveyed the premises to complainant, they being of far less value than the mort- gage, instead of the latter. It is difficult to conjecture, thus putting her to the trouble and expense of foreclosing the same before she could realize a dollar thereon, unless it was to enable .Tohn F. Drew, as owner of the mortgaged premises, to receive the rents and profits thereof to his own use. This he did, but was not generous enough to pay any part thereof to complainant, as she did not receive anj'thlng, either principal or intorost. upon the mortg-ige. The a.ssumption tliat this course was taken to prevent the collec- tion of any judgment that might have been received In the slander suit, is not satisfac- tory, as the mortgage could have been reach- ed just as easily as could the premises had they been conveyed to the complainant. It is indeed much more probable that this mortgage was transferretl to Elizabeth P. • Drew at the request, and for the use and benefit, of her liusliand, the owner of the premises, and that it was not at any time thereafter considered as an existing incum- brance, or the bond accompanying tlie same, if assigned, an existing obligation against the mortgagor, as no effort seems to have at any time been made to collect principal or interest thereon although long past due. The defendants claimed and took tlie crop j of wheat growing on complainant's land at I the time the exchange was made, although It I was far from clear what right they had there- i to, under the lease given by them to com- I plainant. Indeed the whole case shows that I however fair the transaction may have seem- 1 ed to be on the part of defendants, yet It I was fair upon the surface only, and would not bear investigation; It was much like a ; subsequent agreement made between com- plainant and Elizabeth P. Drew, in reference I to the latter not taking any further steps to J obtain possession, which as given by one of defendants' witnesses is worth quoting. When asked to state a conversation he heard between the parties after this difficulty arose, the witness testified: "I think about the first that was said after Mr. and Mrs. Wooley came in, Mrs. Drew says, I promised you this morning I would do nothing further in this matter In relation to the farm until I saw you again; I have seen you now, she says; that cancels the agreement; or. something like that" A careful examination of the entire record leaves no doubt in our minds as to the sub- stantial correctness of the complainant's ver- sion, and the transaction on the part of de- fendiints has been so clearly unconscionable, and their coui-se in endeavoring to talce ad- vantage of the ccmplainant's fears to obtain a conveyance of a valuable farm, for a verj- questionable security of doubtful value, was so clearly fraudulent that a court of equity cannot sanction the same by permitting them to enjoy fniits thereof. The parties must therefore be restored' to their original positions. The decree below will be reversed with 'costs of both courts and the complainant will have a decree in this court in accordance herewith. The other justices concurred. 412 ILLEGALITY OF OBJECT. > ATKINS V. JOHNSON (43 Vt. 78.) ■■^^f ^^ Supreme Court of Vermont. Washington. Aug. Term, 1870. As-^nnipsit us per declaration, which is set out in tlie opinion of tiie court. Trial on general demurrer to the declaration, at the .March term, 1S70, Peck, J., prertidint?. Tlie court, pro forma, adjuili^ed the decla- ration iiiKiifficient, and rendered judgment for the defendant to recover liiH crjstH. Ex- ceptions by the i)laintiff. C. J. Gleason, for plaintiff. Mr. Carpen- ter, for defendant. PIERPOINT, C. J. The case comes into this court upon a general demurrer to the plaintiff's declaraticjn. The declaration alleges that "on the 22d day of July, 18G7, the defendant, by his agreement in writing of that date, under- tuf)U and promised the plaintiff that, in consideration that the plaintiff would print and publish an article in the Argus & Patiuot, a ^weekly news- *80 paper published in Montpclier by the plaintiff, entitled 'A Jack at all Trades •E.xposed,' that said article was all true, that there was enough to back it up, &c., and that he, the said defendant, would de- fend and save harmless the plaintiff from all damage and harm that might accrue to the plaintiff in consequence of publishing said article. That said article, if untrue, was a libel upon the charactcrof one John Gregfjry ; that relying upon thosaid prom- ises of the defendant lie published the ar- ticle; that after said publication the said Gregory called upon the plaintiff for the name of the writer of the article; that thereupon the defendant requested the plaintiff not to give the said Gregory the name of the writer, and, in consideration thereof, promised thi; plaintiff that he would save him from all harm; that if said Gregory sued the plaintiff, that he, the defendant, would defend the suit, prove the charges, and save the plaintiff from all trouble and expense in the premises. The plaintiff, relying thereon, withheld the name of the defendant as the author of said article; that the said Gregory sued the plaintiff; that the defendant failed to defend the said suit, and the said Gregory recovered a judgment against the plain- tiff, which he has been comiielled to pay, and the defendant refuses to indemnify him." The plaintiff is here seeking to compel the defendant to indemnify him for the damage which he has sustained, in conse- quence of publishing a libel, at the request of the defendant, and from the conse- quences of which the defendant agreed to save him harmless. The question is, whether such an agree- T.ent as the plaintiff sets out in his decla- ration can be legally enforced. The general principle, that there can be jio contribution or indemnity, as between joint wrong-doers, is too well settled to require either argument or authority. To this rule there are many exceptions, and prominent among them is the class of cases where questions arise between dif- ferent parties as to the ownership of prtjp- crty, and a third person, supposing one party to be in the right, uijon the request and under the authority of such party, ■Joes acts that are legal in themselves, but which i)rove in the end to be in viola- tion of therightsof the*otlier party, "81 and he, in consequence thereof, is made liable in damages. If in such case there was a promise of indemnity, the law will enforce it, and if there was not, if the circumstances will warrant it, the law will implj' a promise of indemnity, and enforce that. Of tliis class are most of the cases cited and relied upon by tlie counsel for the plaintiff, such as, Betts v. Gibbins; Adam- son V. Jarvis; Woolcy v. Batte; Avery v. Ilalsey, &c. But we apprehend that no exception has ever been recognized broad enough to embrace a case like the present; indeed such an exception would be a virt- ual abrogation of the rule. In this case, these parties in the outset conspired to do a wrong to one of their neighbors, by publishing a libel upon liis character. The publication of a libel is an illegal act upon its face. This, both par- ties are presumed 1o have known. The publication not only subjects the party publishing to a prosecution by the person injured for damages, but also to a public prcjsecution by indictment. In either case, all that would be required of the prosecu- tor would be to prove the publication by the party charged. The law in such case presumes malice and damage, and the prosecutor would be entitled to a judg- ment, unless the party charged could in- troduce something l)y way of defense that would have the effect to discharge him from legal liability; failing in that, the party would be made liable upon a simple state of facts, all of which he pej-fectly un- derstood at the timehe commenced his un- justifiable attack. In this case, both these parties knew that they were arranging for and consum- mating an illegal act, one that subjects them to legal liability, h(jping, to be sure, that they might defend it; but the plain tiff, fearing they might not be able to do so, sought to protect himself from the con- sequences, by taking a contract of indem- nity from the defendant. To say under such circumstances that these parties were not joint wrong-doers, within the full spirit and meaning of the general I'ule, would be an entire perversion of the plain- est and simplest proposition. This being so, the law will not interfere in aid of either. It will not Int^uire which of t he two are most .in the wrongT witn arrl^w of adjusting the equities between them, but n garding both as having been *82 understandingly "'engaged in a vio- lation of the law, it will leave tliera as it finds them, to adjust their differences between themselves, as they best may. But it is said in argument, that to ap- ply this rule in a case like the present is an encroachment upon the "freedom of the press. " We do not so regard It. The freer, doni^f the press does not consistjnjaw- lessness, or in freedom 'rronr''wTioresojne legal restraint. The publisher of a news- paper has no more right to publish a libel COMMISSION OF CRIME Oli CIVIL WRONG. 413 Tiprjn .111 iiulividual, tliat he or any other man has to make a BlanderouH prcjclauia- tion by word of month. It Is also naid tliat tl)o publisher of a no\vspa[)('r, iu his desire to fnrniHh the pnhlic with information of wJiat ik trans- pirinji" In the comnumity, Ih liable to be misled and deci'i^ed in fe>romise. "It W(nild be productive of great evil, if the courts wert? to encfMirago such an engage- ment as this, and thereby hoh! out induce- ment to the propagation of illegal and un- founded charges; " and then quotes from Lord Lyndlnirst as foUoww: "I know of no case in which a person, who has com- mitte(i an act, declai-ed by the law t<-i be criminal, has been permitted to recover comi)ensation against a person wIkj has acted jointlj' with him in the commission of the offense. " VArGM.\N,J.,Bays: "Inthis case the court itself would become acces- sory to the publication of libels. If it was to enforce such a contract as the present." Bosanqi;kt, J., says; "I am of opinion that the promise and considei-ation both ap[)ear on the record to be illegal. The I)romise is to save harmless and indemnify the plaintiff, &c. It api)ears that the pub- lication was made at the solicitation of the defendant, a publication marnfestly illegal, and open to indictment; at once the subject of an action at the suit of the party offended, and an offense against the public. The case does not therefore fall within the principle laid down by Lord Kenj'on, in Merrj-weather v.Nixan, as the act done bj'the plaintiff here was unlaw- ful within his own knowledge." The prin- ciples recognized and promulgated in this decision cover substantially the whole case now before us. The position, in which the facts con- fessed upon the record place the defend- ant, is not an enviable one. He seems to have originated the mischief — to have in- duced the plaintiff to aid him in carrying it into effect, by assurance of the truth of the statements, and a promise of indemni- ty', and after standing by and seeing *S4 the *plaintiff amerced in damages, takes advantage of a strictly legal defense, and throws the whole respcmsibil- itj' opon the plaintiff. Personally, it would have given me satisfaction to have decided the case for the plaintii'f, if it could have been done without violating well- established and salutary rules of law. Judgment of the county court is atlirmed. 414 ILLEGALITY OF OBJECT. )^ JEWETT PUB. CO. v. BUTLER. . r34 i\. E. 10S7, 159 Mass. 517.) ^ ^ Saprenie Judicial Court of Massachusetts. Suffolk. Oct. 19. 1S93. / Report from supreme judicial court, Suf- folk county; Oliver W. Holmes, Jr., Judge. Action by C. F. Jewett Publishing Com- pany against Benjamin F. Butler for breach of contract. The court reported the case to the supreme judicial court. Judgment for plaintiff. The contract between the parties recited that the defendant "is minded and intending to write and have published two volumes in the nature of autobiography or reminiscences of his life, and the acts and doings of other pubUc men, so far as they may seem to him to elucidate the history of the country or pub- lic affairs," and it was stipulated that the plaintiff should do the publishing. The dec- laration alleged that, after defendant had writ- ten the work, he permitted it to be pub- lished by other parties, and that plaintiff had suffered damages in having prepared for the publication, and in the loss of profits which it wouid have made from the sale. E. C. Bumpus. Samuel J. Elder, and Wil- liam Cushing Wait, for plaintiff. John Low- ell and E. M. Jolmsor for defend^nL MORTON, J. The first question is v.hath- er the contract is, as the defendant contends, Illegal on its face. The words relied on to ehow that it is are as follows: "The party of the first part agrees to accep'' full respon- sibility of all matter contained in said work, and to defend at his own cost any suits which may be brought against the party of the sec- ond part for publishing any statements con- tained in said work, and to pay all costs and damages arising from said suit." The pre- siding justice found that "the contract was made without illegal intent, unless and ex- cept so far as the words used import one as matter of law." Do the words used, as quoted above, import one as matter of law? We think not. The parties were contract- ing respecting a book which was not in ex- Lstence, but was to be written. There was nothing in the character of the proposed work which naturally or necessarily involved the publication of scandalous or libelous matter, as was the case, for instance, in Shackell v. Rosier, 2 Bing. N. C. 634, referred to by the defendant. At the same time it was not im- possible that, in spite of due care and good faith on the part of the author and publisher, the proposed book might contain matter which others perhaps would deem libelous. In such a case it would be no more unlawful for the parties to provide that the author should save the publisher harmless from all costs and damages to which he might be subjected by reason of the publication of the book than it would be for a patentee to agree with his licensee that he would protect him against all costs and damages to which he might be sul-jected in consequence of using the patent to which the license applied. The case stands on grounds entirely different from those on which it would stand if it appeared that the parties intended to publish or contemplated the publication of libelous matter. There is nothing in the agreement fairly to show that such was their purpose. The most that can be said is that, though there was no inten- tion to write or publish, nor any contempla- tion of writing or publishing, libelous matter on the part of the author or publisher, it might turn out, after the book was published, that it did contain libelous matter. But that Is very far from saying that the parties had in view an illegal purijose in publishing the book. We see nothing unlawful in a contract which provides, without anything more, that the author shall indemnify the publisher for costs and damages to which he may be sub- jected by reason of the publication of a book to be written by the author. Moreover, it was possible in this case that the book might not contain libelous matter, although libel suits against the publisher might gTow out of It. It would be hard to say, in such event, khat the publisher, who might have published j the book without any libelous purpose, and' in the full belief that it contained nothing; libelous, could not recover of the author un-j &er this clause in the contract the costs and| namages to which he had been put by such; suits. In order, we think, to render the con- tract unlawful, it should appear that there was an intention on the part of the authop and publisher to write and publish libelous matter, or that the author proposed, with the\ knowledge and acquiescence of the publisher, I to write libelous matter, or that the contracti on its face provided for or promoted an ille/ gal act. We do not think the clause in ques- tion is fairly susceptible of either construc- tion. Fletcher v. Harcot, Hut. 55; Batter- gey's Case, Winch, 49; Betts v. Gibbins, 2 Adol. «& B. 57; Adamson v. Jarvis, 4 Bing. 66; Waugh v. Morris, L. R. 8 Q. B. 202; Pearce v. Brooks, L. R. 1 Exch. 213; Cannan v. Bryce, 3 Barn. & Aid. 179; Graves v. Johnson, 156 Mass. 211, 30 N. E. Rep. 818. The defendant contends, in the next place, that he was justified in his refusal to go on with the contract because of his doubts as to the solvency of the plaintiff corporation, and because of the disgrace attaching to its name in consequence of the conduct of Jew- ett. The first ground thus taken would seem to be disposed of by the recent case of Hobbs V. Brick Co. (Mass.) 31 N. B. Rep. 756, and need not, therefore, be further considered. As to the second ground, it is to be observed that the contract was not made with Jewett personally, but with the corporation which bore his name. Moreover, Jewett has fled, and it fairly may be presumed that his place as president and manager has been filled by the election of another person, so that tlie defendant cannot and will not be obliged to come into further association with him. It COMMISSION OF CRIME Oil CIYIL WRONG. 415 Is wen known that corporations are frequent- ly organized which bear as part of tht-ir cor- porate name the name of sonae iudividuah The contention of the defendant would re- quire us to liold that in all such cases a party making a contract witli such a corporat)(-n would be justified in refusing to go on with It if the person whose name the corporation bore committed an act rendering him liable to punishment as a criminal, or bringing him Into disgrace and rendering further associa- tion with him unprofitable and injurious to the oth^ party to the contract. But a cor- poration does not in such a case impliedly guaranty as an element of the contract en- tered into with it that the person whose name it bears shall continue to be a reputable mem- ber of society. The corporation is distinct from the person whose name it bears. Its interests and those of its stockholders in con- tracts made by ft with other parties are not to be affected by tJie disgraceful or criminal conduct of the person whose name it bears, and for which it is in no way responsible. A majority of the court think the entry should be, judgment for plaintiff for $2,500 and in- terest from June 9, 1890, and it is so ordered- LATHROP, J. (dissenting). I au unable to concur in the opinion of the majority of the court that the contract sought to be en- forced is a valid contract. The contract pro- vides for the publication of a work to contain the author's autobiogi-aphy "or reminiscences of his life, and the acts and doings of other public men, so far as they may seem to him to elucidate the history of the country or pub- lic affairs." It is in reference to a work of this character that the defendant agrees to do three things: First, "to accept full re- sponsibility of all matters contained In said work;" secondly, "to defend at his own cost any suits which may be brought against the party of the second part for publishing any statements contained in said work;" thirdly, "to pay all costs and damages arising from such suits." The obligation of the defend- ant is not limited to paying legal expenses, but includes costs and damages recovered against the publisher "for publishing any statements contained in said work." While It is found that the parties artr-d witliout ille- gal intent, yet If the legal effect of the lan- guage used is to make the contract against the policy of the law, this court ought not to enforce it. It seems to me to be impossi- ble to say that the language used applies only to groundless suits, and that It should so be construed. What the parties contem- plated, and what they intended to provide for, was that actions might be brought against the publisher for libelous matter contained In the work; that these actions might be suc- cessfully maintained against the publisher, who would then be compelled to pay dam- ages and costs. In this event the writer agreed to Indemnify the publisher. Could such an agreement have been enforced? In my opinion, it could not, and this view Is sus- tained by the authorities. Shackell v. Rosier, 2 Bing. N. C. 034; Colburn v. Patmore, 1 Cromp. M. & R. 73; Gale v. Leckie, 2 Starkie, 107; Clay v. Yates, 1 HurL & N. 73; Arnold V. Clifford, 2 Sum. 238; i Odgers, Sland. & L. (2d Ed.) 8. See, also, Bradlaugh v. Newde- gate, 11 Q. B. Div. 1, 12; Babcock v. Terry. 97 Mass. 482. It follows tliat the whole con- tract was tainted with illegality, and neither party was bound to go on with it Robinson V. Green, 3 Mete. (Ma.ss.) 159, IGl; Perkins V. Cummings, 2 Gray, 258; Woodruff v. Went- worth, 133 Mass. 309; Bishop v. Palmer, 146 Mass. 409, 16 N. E. Rep. 1^99; Lound v. Grim- wade, 39 Ch. Div. 605, 613. 1 Fed. Cas. No. 555. 3^ 416 ILLEGALITY OF OBJECT. GRIFFITH T. WELLS. ^ ^ / (3 Denio, 226.) Supreme Court of New York. July, lSi6. Error to Oneida C. P. Griffith sued Wells before a justice of the peace in December. 1S43, and declared in assumpsit for two half fe'allons of whiskey and two glasses of beer, sold and delivered to the defendant, of the value of three shillings and six pence. The plaintiff, who was a grocer, proved his declara- tion. The defence was, that the plaintiff sold the liquor without having a license to sell spirituous liquors. The justice ga.ve judgment for the plaintiff for 44 cents damages, besides costs. On certiorari, the C. P. reversed the judgment, on the ground that the plaintiff did not show a license to seU spirituous liquors. The plaintiff brings error. J. Benedict, for plaintiff in error. S. H. Stafford, for defendant in error. BRONSON, C. J. Our excise law does not, in terms, prohibit the sale of strong or spii-it- uous liqnors without a license, nor declare the act illegal; but only inflicts a penalty upon the offender. 2 Rev. St. 680, §§ 15, 16. From this It is argued, that although the seller without a license incurs a penalty, the con- tract of sale is valid, and may be enforced by action. But it was laid down long ago, that "where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful; for it cannot be in- tended that a statute would inflict a penalty for a lawful act" Bartlett v. Viner, Skin. 322. In the report of the same case in Car- thew (page 252), Holt, C. J., said: "A pen- alty implies a prohibition, though there are no prohibitory words In the statute." Al- though this was but a dictum, the doctrine has been fully approved. De Begnis v. Armi- stead, 10 Bing. 107; Foster v. Taylor, 3 Nev. & M. 244, 5 Bam. & Adol. 887; Cope v. Row- lands, 2 Mees. & \V. 149: Mitchell v. Smith, 1 Bin. 110, 4 Dall. 209: Loidenbender v. Charles, 4 Serg. & R. 159, per Tilghmna, a J.; Bank v. Merrick, 14 Mass. 322. --When i license to carry on a particular trade is re- quired for the sole purpose of raising revenue, and the statute only inflicts a penalty by way of securing payment of the license money, it may be that a sale without a license would be valid. Johnson v. Hudson, 11 East, ISO; Brown v. Duncan, 10 Bam. & C. 93; Chit. Cent (Ed. 1842) 419, 697. But if the statute looks beyond the question of revenue, and has in view the protection of the public health or moi-als, or the prevention of frauds by the seller, then, though there be nothing but a penalty, a contract which infringes the stat- ute cannot be supported. Law v. Hodgson, 2 Camp. 147; Brown v. Duncan, 10 Bam. & C. 93; Foster v. Taylor, 3 Nev. & M. 244, 5 Bam. & Adol. 887; Little v. Poole, 9 Bam. & C. 192; Tyson v. Thomas, McClel. & Y. 119; Wheeler v. RusseU, 17 Mass. 258; Bensley v. Bignold, 5 Bam. & Aid. 335; Drury v. Defon- taine, 1 Taunt 136, per Mansfield, C. J.; Cope V. Rowlands, 2 Mees. & W. 149; Houston v. Mills, 1 Moody & R. 325. Now I think it quite clear, that in the enactment of our ex- cise law the legislature looked beyond the mere question of revenue, and intended to prevent some of the evils which are so likely to flow from the traffic in spirituous liquors. If revenue alone had been the object, licenses would have been allowed indiscriminately to all. But the statute forbids a license to any one, whether tavern-keeper or grocer, who is not of good moral character; and he must moreover give bond, with sureties, that his house or grocery shall not become disorderly. Sections 6, 7, 13. These regulations were evi- dently intended to protect the public, in some degree, against the consequences which might be expected to follow from allowing all per- sons, at their pleasure, to deal in strong liq- uors. And although the statute only inflicts a penalty for selling without a license, the contract is illegal, and no action will lie to enforce it The justice was wrong; and his Judgment has been properly reversed by the common pleas. Judgment fiffixmed. VIOLATION OP STATUTES-^T ^JA^ LAWS 417 ^^ LYON Suprome Court of V. STRONG. Vt. 219.) Vormont. Rutland 1834. ^^^ Hr Jan., This was an action oi a^Kvmpsit hvonghX on the warranty of a mare. Plea, non-axnuinpsit. On trial the plaintiff olTered evidence to prove the contract of sale and warranty. It appeared chat the sale was made on the — day of (Jctoher, .8:W, on the Sabbath. Evidence was jriven by the plaintiff to prove the sale and warrant}', by which it appeared that the plain till and defendant were making their bargain and trading during the course of the day, conversing about the terras of the trade, and had rode and tried the mare; — that defendant said he would warrant her sound every way, except gravel; and that at or towards evening they finished their trade, by which the plaintiff gave an ox and a cow and three dollars in money for the mare: — that plaintiff then urged, as a reason why he wanted a warranty, that it was so dark that he could not determine whether she had been gravelled or not. After the evidence of the plaintiff in relation to the sale and warranty was linished, the defendant contended that such a contract made on the Sabbath, was void. The court de cided that a sale or exchange of horses, and t contract or warranty thereon, made on the Sab- oath, was void, and that no action could be maintained thereon. Thereupon the plaintiff became nonsuit, with liberty to move to set it aside if the decision of the court was wrong. The court refused to set aside the nonsuit. The case comes here upon exceptions taken by the plaintiff' to this decision. Mr. Thrall, for plaintiff. Mr. Royce, for de- fendant. WILLIA:MS, C. J.— From the case it is evi- dent that several questions might have arisen in the course of the trial. 1. The *220 *one decided by the county court, wheth- er a coutract for the sale and exchange of horses, and a warranty thereon, made on the Sabbath, in the usual way, and attended with all the circumstances which ordinarily attend those exchanges, is so far void that it cannot be enforced in a court of justice. 2. Whether a contract of this kind, made after the setting of the sun on the Sabbath is against the stat- ute. 3. Whether such a contract, commenced and carried on as this was, though not tinally closed until after the setting of the sun, can be enforced. Our attention is necessarily confined to the first of these questions as being the onlv one decided by the county court. After the evi- dence for the plaintiff was finished, the defend- ant contended and submitted to the court, that such a contract, made on the Sabbath, was void. Aft<;r the decision on this question was pronounced, the plaintiff, without introducing any further testimony, or recjuiring the defend- ant to introduce any testimony to determine whether the case would be subject to the decis- ion which might be made on the second and third questions above mentioned, submitted to a nonsuit and excepted to the opinion of the court. Whether the evidence did or would have presented a case to be determined by the opinion which the court might have formed on either of those questions, cannot now be ascer- tained, as the plaintiff elected to become non- suit on the decision of the first; probablj' con- sidering that his chance with a jury on the whole evidence, as to bringing his catse out of the rule of law laid down by the court, was not HOPK. SEL. CAS. COXT. —27 3uch af ^^'^'ind (uslify him in proceeding fur- ther wo,, 'awcidence. j ' 81 ,^ Ihcr wb/Z'-'awcidence. As it is presented, we can on*/.'^'^ainlX'r the question which the county court Oyj '',on led; and if thcT decision is erro- neous>/'y, ''(of Pjuil will besetuside— ifolherv. ise, it mui/^ fjh wriued. Th^.-^ie « chend is purely a question of law. to b(/^^' v aed by the constitution and statute ' " ilnec. and bv the application of those '' GX^^f law which have been known, ac- atc'd.and nevercontroverted.and I think the', ^. up which have been decided will be fouL*'()r be so very similar and like to the one un(I;,^^ceousideration. that the decisidn on them mui"^.cOvern this; and further, that the ques- tioc^'iiow presented has received so many de- terr*'. nations, that we must have departed not onl"'^/from the known and familiar principles of i.'.'w, but from determinations made under a law precisely similar to the statute of this *221 state, so far as applicable to this *case. if we had come to a different result than the one we have made. We are aware, however, that the subject under consideration is one which, is liable to be viewed too much on either side through the medium of feeling; and any judicial investiga- tion of it may be regarded as treading upon for- bidden ground. A decision one way may be regarded as promoting irreligion, licentiousness and immorality; and a decision the other way be considered as encroaching upon religious freedom. We shall endeavor, however, to in- quire what the legislature have done, and give effect to their doings so far as we understand their requirements. The constitution of this state, (and herein it is a transcript from the lirst constitution of government established in this state) while it carefully protects and guards re ligious freedom, and asserts that the conscience of no one can be controlled, declares, "that every sect or denomination of christians ought to observe the Sabbath or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the rev:. iled will of God. " To carry into effect the sjiirit of this constitution, to enable each religious sect to keep up religious worship on the Sabbath, and to enable all to enjoy the benefits to be de- rived from a day of religious retirement and rest, the legislature, among their first laws, made provision for the prohibition of secular labor on that day; and in the statute which they passed in 1771>, and which has in substance been continued to this time, embraced ;.II the provisions which are contained in the English statutes of the first and second Charles. Aware of the benefits to be derived from stated periods of rest from manual labor, of the importance of having the same day observed by all. and recognizing that every denomination of chris- tians among them regarded the Sabbath as a day set apart for moral and religious duties, they determined that every one should be pro- tected in the enjoyment of his religious privi- leges and in the performance of liis reli^MOus duties, and have made provision that those who are thus disposed may on that day perform those great and necessary duties which they be- lieve are required of them, without disturbance from the secular h.hor of others; and further, that all, whether high or low, prisoner or free, master or servant, shall be permitted to rest, and that none shall compel them to labor on that day; and lest through avarice or cupidity, any one should be disposed so to do, they have enacted that the day shall be observed as a day of rest from secidar labor and employ- ment, except such as *neccss:ty and acrs *222 of charity shall rcijuire. btiitulc, p. tJuJ. 418 ir.LEGAUTY OF OBJECT. \ It mav here be remarked, that LLSrevera stat- ute inflicts a. penalty for doing thing, the penalty implies a prohibition, th. ^ there are no prohibitory words in the jnj'te. This BUtute not only inflicts a penalty > ^"lose who violate it, by labor or recreation, I g^gxpressly prohibits all secular labor or emp j-^^Tient, so that there is both an implied and e. >ss pro- hibition. The question will then ar^ '^^ wheth- er the employment of these parties, -3 detailed in the bill of exceptions, the sale, d, hange, and contract of warranty, is a secular ce.bor or employment, within the meaning of the^^atute, subjecting them to a penalty; and seco , ly, if it is, wheTher courts of justice are to lei their aid to carry into effect a contract made ^^ vio- lation of a positive statute, and for the mricing of which they would inflict a penalty or fiLiy? on the parties thereto? On the first question there can be no doubt. All will readily answer in the affirmative. It was not only a secular labor or employment, but one directly calculated, from the nature of the business, to disturb the devotion of others, and to interrupt the rest and quietness which all have a right to enjoy on that day. On the second question, it is apprehended that the law, as established in analogous cases, and under statutes similar in their provisions, furnishes as ready an answer in the negative. It is an acknowledged principle of law, that a court will not lend its aid to carry into effect a con- tract made in contravention of a positive stat- ute, particularly if the statute was made for the purpose of protecting the public, for pro- moting peace, good order, or good morals. The reason for this is sufliciently obvious with- out recurrence to authorities. There would be a great inconsistency in a court of justice, to inflict a punishment on persons for makings contract, which disturbed the public peace and contravened a statute, and in the next cause settle the terms of that contract between the same parties, inquiring whether it had been fultilled, and giving damages to the one or the other for not fulflUing it. It would be alto- gether more consonant to propriety to tell the parties to such an illegal transaction, that they are not to come into a court of justice on any question in relation to such a transaction, ex- cept to receive judgment for the penalty they; 'have incurred by disregarding , together with all arrears of rent, and a ratable divi- dend of the rent for the time which shall have elapse0. the double rent claimed in the cognizance. The plaintiff here prays a reversnl of this judgment. 1. Because the deed which forms a part of the cognizance, on its face, shows an usuri- ous contract. 2. Because the pleas set forth, with suf- ficient cei-titinty, an usurious contract The statute of Virginia against usury was passed In 1703, and provides that no person shall take, directly or indirectly, more than six dollars for the forbearance of one hun- dred dollars per annum; and it declares that all bonds and other instruments for a greater amount of interest shall be utterly void. In support of the demurrer, it is argued that the pleas are defective, as they do not contain any allegation of facts which amount to usury, and that the decision must turn on the construction of the contract between 422 ILLEGALITY OF OBJECT. Scholfield and Moore. And it is contended that, although usury appears upon the face of a deed, yet advantage can only be taken of it by plea; that the obligee may explain the contract by showing a mistake in the scrivener, or a miscalculation of the parties. In Comyn on Usury (page 201) it is laid down that, in an action on a specialty, though it appear on the face of the declaration that the bond, &c., is usurious, still, no advantage can be taken of this, unless the statute be specially pleaded. 3 Salk. 291; 5 Coke, 119; Chit. Cont. 240; 1 Sid. 2S5; 1 Saund. 295a. The decision of this point is not necessarily Involved in the case. The requisites to form an usurious trans- action are three: — 1. A loan, either express or implied. 2. An understanding that the money lent shall or may be returned. 3. That a greater rate of interest than is allowed by the statute shall be paid. The intent with which the act is done is an important ingredient to constitute this of- fence. An ignorance of the law will not pro- tect a party from the penalties of usury, where it is committed; but where there was no intention to evade the law, and the facts which amount to usury, whether they appear upon the face of the contract or by other proof, can be shown to have been the result of mistake or accident, no penalty attaches. At an early period in the histoiy of Eng- lish jurisprudence, usury, or, as it was then called, the loaning of money at interest, was deemed a very high offence. But since the days of Henry VIII. the taking of interest has been sanctioned by statute? In this country, some of the states have no laws against tal-cing any amount of inter- est which may be fixed by the contract. The act of usury has long since lost that deep moral stain which was formerly at- tached to it, and is now generally considered only as an illegal or immoral act because it Is prohibited by law. Assuming the posi- tion that the pleas contain no averments which extend beyond the terms of the con- tract, the counsel in support of the demur- rers have contended that no fair construc- tion of the deed will authorize the inference that it was given on an usurious considera- tion. It was the purchase of an annuity, it is contended; and though the annuity may pro- duce a higher rate of interest than six pei cent upon the consideration paid for it, yet this does not taint the transaction with usury. If the court were limited by the pleas to the words of the contract, and it purported to be a purchase of an annuity, and no evidence were adduced giving a different character to the transaction, this argument would be unanswerable. An annuity may be purchas- ed like a tract of land or other property, and the Inequality of price will not, of itself, make the contract usurious. If the inade- quacy of consideration be great, in any pur- chase, it may lead to suspicion; and, con- nected with other circumstances, may induce a court of chancery to relieve against the contract. In the case under consideration, ?5,000 were paid for a ground-rent of !?500 per an- num. This circumstance, although ten per cent, be received on the money paid, does not make the contract unlawful. If it were a bona fide purchase of an annuity, there is an end to the question; and the condition which gives the option to the vendor to re- purchase the rent, by paying the $5,000 after the lapse of five years, would not invalidate the contract 1 Brown, Ch. 7, 93. The right to repurchase, as also the inadequacy of price, would be circumstances for the con- sideration of a jury. The case reported In 2 Coke, 252, Is strong- ly relied on by the counsel for the defendant. In that case, an action of debt was brought upon an obligation of £300, conditioned for the payment of £20 per annum, during the lives of the plaintiff's wife and son. The defendant pleaded the statute of usury, and that he ap- plied to the defendant to borrow of him £120, at the lawful rate of interest; but that he corruptly offered to deliver £120 to him, if he would be obliged to pay £20 per annum. The court considered this as an absolute con- tract for the payment of £20 per annum dur- ing two lives; and no agreement being made for the return of the principal, it was not considered usury. But, they stated, if there had been any provision for the repayment of the principal, although not expressed in the bond, the contract would have been usurious. This is a leading case, and the principle on which it rests has not been controverted by modem decisions. Scholfield, it appears, was under no obliga- tion to repurchase the aimuity, but he had the option of doing so after the lapse of five years, which is a strong circumstance to show the nature of the transaction. The purchase of an annuity, or any other device used to cover an usurious transaction, will be unavailing. If the contract be hifect- ed with usury, it cannot be enforced. Where an annuity is raised with the design of covering a loan, the lender will not be exempted by It from the penalties of usury. 3 Bos. & P. 150. On this point there is no con- tradiction in the authorities. If a party agree to pay a specific sum ex- ceeding the lawful interest, provided he do not pay the principal by a day certain, it is not usury. By a punctual payment of the prin- cipal he may avoid the payment of the sum stated, which is considered as a penalty. Where a loan is made to be returned at a fixed day with more than the legal rate of interest, depending upon a casualty which hazards both principal and interest, the con- tract is not usurious; but where the interest only is hazarded, it is usury. Does the decision in this case, as has been VIOLATION OF STATUTES— USURY. 42a contondod, depend upon a construction of the contract? Are there no averments in the pleas which place before the court material facts to constitute u.suiy, that do not appear on the face of the deed? Lf the court were limited to a mere con- struction of the contract, they would have no difficulty in deciding that the ease was not strictly embraced by the statute. In the second plea, the plaintiff below prays oyer of the deed of Indenture, and among oth- er statements alleges, "that it was corruptly agreed between the said Scholfiold and the said Moore, that the said Moore should lend to him the sum of $5,000, and in consideration thereof, that he should execute the said deed, &c." And in another part of the same plea, it Is stated "that the said Moore did cor- niptly agree, tliat he would in the said In- denture covenant, &c., that if the said Schol- field, his heirs and assigns, should, at any time after the expiration of five years from the date of said indenture, pay to the said Moore, his heirs and assigns, the sum of $0,000, together with all arrears of rent he, the said Moore, would release to him the said annuity." And it is further alleged, "that the said Moore, in pursuance and in prosecution of the said corrupt agreement, did advance to the said Scholfleld the said sum of $5,000." And again, "that the said deed of indenture was made, in consideration of money lent upon and for usury; and that, by the said indent- ure, there has been reserved and taken above the rate of $6 per annum In the hundred, for the forbearance of the said sum of $5,000 so lent as aforesaid." The fourth plea contains, substantially, the allegations as to the lending, &c., that are found in the second plea The facts stated in the pleas are admitted by the demurrers, and the question of usury arises on these facts, connected as they are with the contract Although the second and fourth pleas may not contain every proper averment with tech- nical accuracy, yet they are substantially good. All the material facts to constitute usury are found In the second plea. It states a corrupt agreement to loan the money, at a higher rate of interest than the law allows. That the money was advanced and the contract executed, In pursuance of such agreement. That on the return of the principal, with a full payment of the rent after the lapse of five years, the annuity was to be released. The amount agreed to be paid above the legal Interest, for the forbearance, is not expressly averred, but the facts are so stited in the plea as to show the amount with certainty. $500, under cover of the annuity, were to bo paid, annually, for the forbearance of the $5,000, making an annual interest of ten per cent Do not these facts, imcontradict- ed as they are, amount to usury? Is it not evi- dent from this statement of the case, that the annuity was created as a means for paying the interest until the principal should be re- turned, and as a disguise to the transaction? Such is the legitimate inference which arises from the facts stated in the plea. At this point in the case an important ques- tion is raised, whether Lloyd, the plaintiff in the replevin, being the a.->signee of .Sf-holfield, can set up this plea of usury in his defence- It is strongly contended that he cannot He purchased tliis property, it is alleged, sub- ject to the annuity, and paid for it a pro- portionably less consideration. That know- ing of the charge before he made the pur.ha;>e, it would be unjust for him now to evade the payment And the inquiry is made, whether Lloyd could plead u.«urj' In this contract, if the annuity had been purchased by Schol- field. lie would be estopped from doing so, it is urged, by the obligations of his own con- tract, as he Is now estopped from resisting the claim of iloore. As to the injustice of the defence, It may be remarked that the objection would apply with still greater force against Scholfleld, if he were to attempt, by a similar defence, to evade the payment of the annuity. He re- ceived the money after assenting to the con- tract; but he is at liberty to evade the pay- ment of the annuity by the plea of usury. Is the position correctly taken, that no person can avail himself of this plea, but a party to the original contract? The principle seems to bt settled, that usuri- ous securities are not only void, as between the original parties, but the illegality of their inception affects them even in the hands of third persons who are entire strangers to the transaction. Comyn, Usury, 160. A stninger must "take heed to his assurance, at his per- il;" and cannot insist on his ignorance of the contract in support of his claim to recover upon a security which originated In U5ury. In the case of Lowe v. Waller, Doug. ~:\~i. the plaintiff was the indorser of a bill origi- nally made upon an usurious contract: though he had received it for a valuable consider- ation, and was entirely ignorant of its vice, the court of king's bench, after great consid- eration, determined that the words of tlie statute were too strong; and that after what had been held in a case on the statute against gaming, the plaintiff could not recover. K a bill of exchange be drawn In conse- quence of an usurious agreement for discount- ing It although the drawer to whose order it was payable was not privy to this agreement stUl, it is void in the hands of a bona fide in- dorser. 2 Camp. 500. In Holt. N. P. 256, Ix>rd EUenborough lays down the law that a bona fide holder cannot recover upon a bin founded In usury; so neither can he recover upon a note where the payee's indorsement through which he must daim, has been made by an usurious agreement But if the first indorsement be valid, a subsequent usurious indorsement will not affect him; because such 424 ILLEGALITY OF OBJECT. intermediate indorsement Is not necessary to his title to sue the original parties to the note. If a note be usurious in its inception, and it pass into the hanas of a bona fide holder who has no notice of the usury, and the drawer give to the holder a bond for the amount of the note, the bond would not be affected by the usury. 8 Term R. 390. In the case of Jackson v. Henry, reported in 10 Johns. 1S5, a plea of usury was set up to invalidate the title of a purchaser at a sale of mortgaged premises. This sale, under the statute of New York, is equivalent to a fore- closure by a decree in chancery; and the court decided that the title of the purchaser was not affected by usury in the debt for which the mortgage was given. The stitute of New York declares all bonds, bills, con- tracts, and assurances, infected with usury, '"utterly void." And so say the court on the adjudged cases, when the suit at law is be- tween the original parties, or upon the very instrument infected. The case of D'WoLf v. Johnson, reported In 10 "Wall. 367, is relied on by the counsel for the defendant, as a decision in point. In that case, it will be observed that the drst mortgage being executed in Rhode Island in 1S15, was not usurious by the laws of that state; and the second one, executed in Ken- tucky, in 1S17, being a new contract, was not tainted with usury. The question, therefore, whether the purchaser of an equity of redemp- tion can show usury in the mortgage to defeat a foreclosure, was not involved ia that case. The Virginia statute makes void every usu- rious contract; and the second plea contains allegations which, uncontradicted, show that the contract between Moore and Scholfleld was usurious in Its origin. Thia contract, thus declsjed to be void, is sought to be enforced against Lloyd, the pur- chaser of the property charged with the an- nuity. Between Scholfield and Lloyd there Is a privity; and if the contract for the annuity be infected with usury, is it not void as against Lloyd? In this contract, a summary remedy is given to enter on the premises, and levy by distress and sale of the goods and chattels there found, for the rent in arrear; and if the dis- tress should be insufficient to satisfy the rent, and it should remain unpaid for thirty days, Moore is authorized to enter upon the prem- ises, and to expel Scholfield, his heirs and as- signs, and hold the estate. Lloyd, as the as- signee of Scholfield, comes within the terms of the contract, and is liable, being in pos- session of the premises, to have his property distrained for the rent, and, if it be not paid, himself expelled from the possession. Under such circumstances, may he not avail himself of the plea of usury, and show that the con- tract which so materially affects his rights is Invalid? Moore seeks his remedy under this contract, and if it be usurious and consequent- ly void, can it be enforced? If usury may be shown in the inception of a bUl to defeat a recovery by an indorsee, who paid for it a valuable consideration without notice of the usury, may not the same offence be set up where, in a case like the present, the party to the usurious contract claims by virtue of its provisions, a summary mode of redress? The court entertain no doubt on this subject They think a case of usury is made out by the facts stated in the second plea, and that Lloyd may avail himself of such a defence. The judgment of the circuit court must be reversed, and the cause remanded, with in- Rtructions to overrule the demurrers to the second and fourth pleas. an(? permit the de- fendant to plead. PUBLIC POLICY— INJUllY TO PUBLIC SERVICE. 425 P 2^ BLISS V. LAWRENCE. c- SAME V. GARDNEE. 2.^ (58 N. Y. 442.) Court of Appeals of New York. 1874. Appeals from judgments dismissing the com- plaint. Defendant was a cleric in the United States treasury department, In New York City, and sold and assijrned to plaintiff a month's salary In advance at a discount of ten per cent, and when the salary became due, he collected and converted it to his own use. James Emott and Samuel Hand, for appel- lant L L Lansing and Moses Ely, for re- spondent JOHNSON, J. The controlling question In these cases is that of the lawfulness of an assignment, by way of anticipation, of the salary to become due to a public officer. The particular cases presented are of assignments of a month's salary in advance. But if these can be sustained in law, then such assign- ments may cover the whole period of possible service. In the particular cases before us the claims to a month's salary seem to have been -"gold'^at a discount of about ten per cent. While tliis pi-csonls no question of usiil-y (since it was a sale and not a loan for which the parties were dealing), it does present a quite glaring instance and example of the con- sequences likely to follow the establishment of the validity of such transfers, and thus iUustnites one at least of the grounds on which the alleged rule of public policy rests, by which such transfers are forbidden. The pub- lic^_secEi£e_Js^rotocted by protecting those engaged in pcrfonning public duliis; and this not upon The groimd ol" ibeir private in- terest, but upon that of the necessity of se- curing the efficiency of the public service / by seeing to it that the funds provided for, 1 its maintenance should be received by those' \ who are to perform the work at such periods 1 as the law has appointed for their payment. It is argned that a public officer may bet- ter submit to a loss in order to get his pay into his hands in advance, than deal on credit for his necessary expenses. This may I be true in fact, in individual instances, and | yet may in genenil not be in accordance with the fact. Salaries are by law payable after work is performed and not before, and while this remains the law, it must be presumed to be a wise regulation, and necessary in the view of the law-makers to the efficiency of the public service. The contrary rule would perm it the public servi ce to be und ermined bythe_assigiiment"to strangers of all tlie f unds a p;irotiri:itoi'l tci sahii'ifs. It is true that in respect to officers removable at will, this evil could in some measure be limited by their removal when they were found as- signing their salaries; but this Is only a partial remedy, for there would stiU be no means of preventing the continued recur- rence of the same difficulty. If such assign- ments are allowed, then the assignees by no tice to the government, would on ordinary principles be entitled to receive pay directly and to take the place of their assignors in respect to the emoluments, leaving the du- ties as a barren charge to be borne by the assignors. It does not need much reflection or observation to understand that such a con- dition of things could not fail to produce re- sults disastrous to the efficiency of the pub- lic service. Some mi-sapprehension as to the doctrine involved seems to have arLsen from the fact that the modern adjudged cases have often related to the pay of half-pay army officers, which In part is given as a compensation for past services and in part with a view to future services. Upon a review of the Eng- lish cases, it will appear that the general proposition is upon authority unquestionable, that salary for continuing services could not be assigned; while a pension or compensa- tion for past services might be assigned. The doubt, and the only doubt in the case of half-pay officers was to which class they were to be taken to belong. It was decided that inasmuch as their pay was in part in view of future service, it was unassignable. Similar questions have arisen in respect to persons not strictly public officers, but the principle before stated has In the courts of England been adhered to firmly. Flarty v. Odium, 3 Term R. 681; Stone v. Lidderdale, 2 Anst. 533; Davis v. Marlboro, 1 SwansL 79; Lidderdale v. Duke of Montrose, 4 Tenn R. 248; Barwick v. Read, 1 H. Bl. 627; Ar- buckle V. Co whan, 3 Bos. & P. 328; Wells V. Foster, 8 Mees. & W. 149; Story, Eq. Jur. § 1040d; 1 Pars. Cont. 194. These cases and writers sustain the proposition above set forth and show the settled state of the Eng- lish law upon the subject. Some other cases are so pertinent to the general discussion as to deserve to be stated more at length, espe- cially as they are not so accessible as those before referred to. Among them the judg- ment of Lord Brougham, in the house of lords, in Hunter v. Gardner, 6 Wils. & S. 618, decided in 1831, gives an admirable sum- mary of thfe state of the English law upon the subject. The case was a Scotch appeal, in which the Scotch court had approved, un- der the law of that country, a partial trans- fer of the salary of a public officer. The par- ticular judgment was aflirmed without decid- ing what thQ law of Scotland was upon the subject. In his judgment Lord Brougham said: "The court seem not to have scruti- nized very nicely whether from the nature of the subject-matter, namely, the half-pay or the full pay of an officer or a minister's stipend, or in the present case, the salary of an ofiicer employed under government and in the execution of an imjiortant public trust, an assignment can validly operate upon and affect those particular rights; but they have nevertheless assumed to deal with them and have directed that a certain proportion of 426 ILLEGALITY OF OBJECT. them shall be assigned on the condition of panting the benefit of the cessio bouorum. Those cases undoubtedly could not have oc- curred in this country. I may refer to the well-known case of Flarty v. Odium, 3 Term R. GSl. which from its importsjice was the subject of mucL discussion, it being the first case in which it was held that the half-pay of an officer was not the subject of assign- ment; and it was followed in Lidderdale v. Duke of Montrose, in 4 Term R., where the doctrine laid down was made the subject of further discussion, and the court adhered to their former view, that the half-pay was free from attachment; so that neither is a man bound to put it into the schedule of his as- sets, nor does the general assignment to the provisional assignee transfer it, nor would a bargain and sale to the assignees vmder a commission of bankruptcy pass it out of the bankrupt; it is unassignable and incapable of being affected by any of those modes of proceeding. The same doctrine was laid down with respect to the profits of a living in the case of Arbuckle v. Cowhan, the judg- ment in which has been very much consid- ered in Westminster Hall, and like most of the judgments of that most able and learned lawyer. Lord Alvanley, has given great sat- isfaction to the courts and the profession. In the report of that case, your lordships will find laid down the general principle, though, perhaps, not worked out in these words, that all such profits as a man receives in respect to the performance of a public duty are, from their very nature, exempt from attach- ment and incapable of assignment, inasmucn as it would be inconsistent with the nature of those profits that he who had not been trusted, or he who had not been employed to do the duty, should nevertheless receive the emolument and reward. Lord Alvanley quotes Flarty v. Odium and Lidderdale v. Duke of Montrose, and in illustrating the principle on which a parson's emoluments are not* assignable, he does not confine his observations to the particular case of half- pay officers or the case of a parson's emolu- ments, but he makes the observation in all its generality, as applicable to every case of a public office and the emoluments of that office. The first case (1 H. Bl. 627), decided by the court of common pleas (the case of Barwick v. Read), clearly recognizes the principle. • • • In this case as well as the other case of Arbuckle v. Cqwhan, it was perfectly clearly held by the court that in all such cases, one man could not claim to receive, by assignment or attachment, emol- uments which belonged to another deemed to be capable of performing the duties append- ed to those emoluments, but which duties could not be performed by the assignee; and there was an old case referred to in Banvick V. Read, and a curious case in Dyer, in which so long ago as the reign of Elizabeth, the question appears to have been disposed of by a decision now undisputed, and now referred to in Westminster Hall. » ♦ • All these cases laid down this principle, which is perfectly undeniable, that neither attachment nor assignment is applicable to such a case." Other cases to the same effect, of later date, are likewise noteworthy. In Hill V. Paul, 8 Clark & F. 307, decided in 1842, Lord Chancellor Lyndhurst, speaking of the legality of assigning the future emol- uments of an office in Scotland, says: "That such an assignment would be illegal in Eng- land there can be no doubt. Palmer v. Bate, 2 Brod. & B. 673, is directly applicable to this case. And in Davis v. Marlboro, 1 Swanst. 79, there is the observation of Lord Eldon already cited, which seems to me quite in point and which lays down the true rule and the distinction to be observed in these cases, and to which for that reason I refer as show- ing what is the law of England on this sub- ject." What Lord Eldon said in the case referred to was: "A pension for past serv- ices may be aliened; but a pension for sup- porting the grantee in the performance of fu- ture duties is inalienable." And in Flarty v. Odium, 4 Term R. 248, the court say: "It might as well be contended that the salaries of the judges which are granted to support the dignity of the state and the administra- tion of justice may be assigned." In Arbuthnot v. Norton (1846) 5 Moore, P. C. 230, the question was whether an Indian judge could assign a contingent sum to which on his death within six months after his ar- rival in India his representative would be entitled by law, and it was held that such an assignment was not against public policy and would in equity transfer the right to the fund. In the course of the judgment given by Dr. Lushington, he says: "We do not in the slightest degree controvert any of the doctrines whereupon the decisions have been founded against the assignment of sal- aries by persons filling public offices: on the contrary, we acknowledge the soundness of the pi*inciples which govern those cases but we think that this case does not fall within any of these principles; and we think so be- cause this is not a sum of money which at any time during the life of Sir John Norton could possibly have been appropriated to his use or for his benefit, for the purpose of sus- taining with decorum and propriety the high rank in life in which he was placed in India. We do not see how any of the evils which are generally supposed would result from the assignment of salary, could in the slightest degree have resulted from the assignment of this sum, inasmuch as during his life-time his personal means would in no respect whatever have been diminished, but remain exactly in the same state as they were." In Liverpool v. Wright, 28 L. J. (N. S.) Ch. 871, A. D. 1859, in which the question re- lated to the alienability of the fees of the office of a clerk of the peace. Wood, V. C, after disposing of another question, says: PUBLIC POLICY— INJURY TO PUBLIC SERVICE. 427 "Then there Is a second ground of public policy, for which the case of Palmer v. Vaughn, 3 Swaust. 173, is the leading author- ity, which is this: That Independently of any corrupt bargain with the appointor, no- body can deal with the fees of a person who holds an office of this description, because the law presumes, with reference to an of- fice of trust, thut he requires the payment which the law has assigned to him for the purpose of upholding the dignity and per- forming properly the duties of that otlice, and therefore it will not allow him to part with any portion of those fees either to the ap- pointor or to anybody else. He Is not al- lowed to charge or incumber them. That was the case of Parsons v. Thompson, 1 H. Bl. 322. Any attempt to assign any portion of the fees of hi« office is illegal on the ground of public policy, and held therefore to be void." In respect to American authority we have been referred to Brackett v. Blake, 7 Mete. (Mass.) 335, Mulhall v. Quinn, 1 Gray, 105, and Macomber v. Doane, 2 Allen, 541, as con- flicting with the views we have expressed. An examination of these cases shows that the point of public policy was not considered by the court in either of them, but that the question was regarded as entirely relating to the sufficiency of the interest of the assignor in the future salary to distinguish the cases from those of attempted assignments of mere expectation, such as those of an expectant heir. The court held that in the cases cited, the expectation of future salary being found- ed on existing engagements, was capable of assignment and that the existing Interest sutliced to support the transfer of the future expectation. The only other case to which we have been referred Is a decision of the supreme court of Wisconsin. In State Bank v. Hastings, 15 Wis. 78, the question being as to the assignability of a judge's salary, the court say: "We were re- ferred to some English cases which hold that the assignment of the pay of officers in tlie public service, judges' salaries, pen.sion.s, etc., was void as being against public policy, but it was not contended that the doctrine of those cases was applicable to the condi- tion of society or to the principles of law or of public policy in this country. For cer- tainly we can see no possible objection to permitting a judge to assign his salary be- fore it becomes due, if he can find any per- son willing to take the risk of his living and being entitled to It when it becomes pay- able." We do not understajid that the English de- cisions really rest on any grounds peculiar to that country, although sometimes expressed In terms which we might not select to ex- press our views of the true foundation of the doctrine In question. The substance of it all is the necessity of maintaining the efficiency of the public service by seeing to it that pub- lic salaries really go to those who perform the public service. To this extent we think the public policy of every country must go to secure the end in view. The judgments must be affirmed. All concur. Judgments afHrmed. 428 ILLEGALITY OF OBJECT. 2^ PROVIDEXCE TOOL CO. v. (2 Wall. 45.) NORRIS. Dec^ tSupreme Court of the United States. 1S64. In July, 1S61, the Providence Tool Company, a corporation created under the laws of Rhode Island, entered into a contract with the gov- ernment, through the secretaiy of war, to de- liver to officers of the United States, within certain stated periods, trwenty-five thousand muskets, of a specified pattern, at the rate of twenty dollars a musket This contract was procured through the exertions of Norris, the plaintiff in the court below, and the defendant in error in this court, upon a previous agree- ment with the corporation, through its man- aging agent, that in case he obtained a con- tract of this kind he should receive comi)en- sation for his services proportionate to its ex- tent Norris himself. It appeared, — though not having any imputation on his moral character, —was a person who had led a somewhat mis- cellaneous sort of a life, in Europe and Amer- ica. Soon after the rebellion broke out, he found himself in Washington. He was there without any special purpose, but, as he stated, with a view of "making business— anything generally;'* "soliciting acquaintances;" "get- ting letters;" "getting an office," &c. Finding that the government was in need of arms to suppress the rebellion, which had now become organized, he applied to the Providence Tool Company, already mentioned, to see if they wanted a job. and made the contingent sort of contract with them just referred to. He then set himself to work at what he called, "con- centrating influence at the war department;" that is to say, to getting letters from people who might be supposed to have influence with Mr. Cameron, at that time secretary of war, recommending him and his objects. Among other means, he applied to the Rhode Island senators, Messrs. Anthony and Simmons, with whom he had got acquainted, to go with him to the war office. Mr. Anthony declined to go; stating that since he had been senator he had been applied to some hundred times, in like manner, and had invariably declined; thinking it discreditable to any senator to in- termeddle with the business of the depart- ments. "You will certainly not decline to go with me, and introduce me to the secretary, and to state that the Providence Tool Com- pany is a responsible corporation." "I will give you a note," said Mr. Anthony. "I do not want a note," was the reply; "I want the weight of your presence with me. I want the influence of a senator." "Well," said Mr. Anthony, "go to Simmons." By one means and another, Norris got influential introduc- tion to Mr. Secretary Cameron, and got the gnse to the fr oyemment . Considera- tions as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, tlie action of every department of the government. No oth- er considomtion can lawfully enter into the transaction, so far as the government is con- cerned. Such is the rule of public policy; and whatever tends to Introduce any other elements into the transaction, is against pub- lic policy. That agreements, like the one un- der considerat^n, have this tendency, is mani- fest. They /ot\6 to introduce personal solici- tation, and personal influence, as elements in tile procurement of contracts; and thus di- rectly lead to inefficiency in the public ser- vice, and to unneces.sary expenditures of the public funds. The prinfiple which determines the invalid- ity of tlie agreement in question has been as- serted in a great variety of cases. It has been asserted in cases relating to agreements for compensation to procure legislation. These have been uniformly declared invalid. and the decisions have not turned upon the question, whether improper influences were contemplated or used, but upon the corrupting tendency of the ag.-eements. Legislation should be prompted solely from consideraiions of the public good, and the best means of advancing it. Whatever tends to divert the attention of legislators from their high duties, to mislead their judgments, or to substitute other motives for their conduct than the ad- vancement of the public iniere.sLs, must neces- sarily and direcUy tend to impair the integ- rity of our political institutions. Agreements for compensation contmgent upon success, suggest the use of sinister and corrupt mejins for the accomplishment of the end desired- The law meets the suggestion of evil, and strikes down the contract from its inception. There Is no real difference in principle be- tween agreements to procure favors from leg- islative bodies, and agreements to procure fa- vors in the shape of contracts from the heads of departments. The introduction of improp- er elements to control the action of both, is the direct and inevitable result of all such arrangements. Marshal v. Railroad Co.. 16 How. 314; Harris \ Roof's Ex'rs, 10 Barb. 4S9; Fuller v. Dame, 18 Pick. 472. The same principle has also been applied, in numerous instances, to agreements for com- pensation to procure appointments to public offices. Tlaose offices are trusts, held solely for the public good, and should be conferred from considerations of the ability, integrity, fidelity, and fitness for the position of the appointee. No other considerations can prop- erly be regarded by the appointing power. Whatever introduces other elements to con- trol this power, must necessarily lower the character of the appointments, to the great detriment of the public. Agreements for com- pensation to procure these appointments tend directly and necessarily to introduce such ele- ments. The law, therefore, from this tend- ency alone, adjudges these agreements iuon- templated or used in their execution. The law looks to the general tendency of such agreements; and \i closes the door to temp- tation, by refusing them recognition in any of the courts of tlie country. It follows that the .nidgment of the court be- low must be reversed, and the cause remand- ed for a new trial; and it is so ordered. } 430 2- ILLEGAiXTY OF OBJECT. TRIST V. CHILD, j^^^ (21 Wall. 441.) 3^^ iSupreme Court of the United States. 1874. Appeal from the supreme court of the Dis- trict of Columbia; the case being thus: N. P. Trist having a claim against the United States for his services, rendered in 1S4S, touching the treaty of Guadalupe Hi- dalgo—a claim which the government had not recognized— resolved, in 1SG&-7 to submit it to congress and to ask payment of it And he made an agreement with Linus Child, of Boston, that Child should take charge of the claim and prosecute It before congress as bis agent and attorney. As a compensa- tion for his services it was agreed that ChUd should receive 25 per cent, of whatever sum congress might allow in payment of the claim. If nothing was allowed, Child was to receive nothing. His compensation de- pended wholly upon the contingency of suc- cess. Child prepared a petition and pre- sented the claim to congress. Before final action was taken upon it by that body Child died. His son and personal representative, L. M. Child, who was his partner when the agreement between him and Trist was en- tered into, and down to the time of his death, continued the prosecution of the claim. By an act of the 20th of April, 1871, congress ap- propriated the sum of 514,559 to pay it. The son thereupon applied to Trist for payment of the 25 per cent stipulated for In the agree- ment between Trist and his father. Trist declined to pay. Hereupon Child applied to the treasury department to snspend the pay- ment of the money to Trist Payment was suspended accordingly, and the money was still in the treasury. Child, the son, now filed his bill against Trist, praying that Trist might be enjoined from withdrawing the ?14,559 from the treas- ury until he had complied with his agree- ment about the compensation, and that a de- cree might pass commanding him to pay to the complainant .?.5000, and for general relief. The defendant answered the bill, assert- ing, with other defences going to the merits, that all the services as set forth in their bill were "of such a natm-e as to give no cause of action In any court either of common law or equity." The case was heard upon the pleadings and much evidence. A part of the evidence con- sisted of correspondence between the par- ties. It tended to prove that the (3hilds, father and son, had been to see various mem- bers of congress, soliciting their influence in behalf of a bill introduced for the benefit of Mr. Trist, and In several instances obtaining a promise of It There was no attempt to prove that any kind of bribe had been of- fered or ever contemplated; but the follow- ing letter, one in the correspondence put in evidence, was referred to as showing the ef- fects of contracts such as the one in this case: "From Child, Jr., to Trist House of Rep- resentatives, Washington, D. C, Feb. 20th, 1871. Mr. Trist: Everything looks very fa- vorable. I found that my father has spoken to C and B , and other members of the House. Mr. B says he will try hard to get it before the House. He has two more chances, or rather 'morning hours,' before Congress adjourns. A will go in for It. D promises to go for it. 1 have sent your letter and report to Mr. W , of Pennsyl- vania. It may not be reached till next week. Please write to your friends to write imme- diately to any memljer of Congress. Every vote tells; and a simple request to a member may secure his vote, he not caring anything about It. Set every man you know at work, even if he knows a page, for a page often gets a vote. The most I fear is indiflierence. Yours, &c., L. M. Child." The court below decreed: 1st. That Trist should pay to the complain- ant .$3G39, with Interest from April 20th, 1871. 2d. That until he did so, he should be en- joined from receiving at the treasury "any of the moneys appropriated to him" by the above act of congress, of April 20th, 1871. From this decree the case was brought here. The good character of the Messrs. Child, father and son, was not denied. Durant & Homer, for appellants, upon the main point of the case (the validity of the contract between Child and Trist), relied upon Marshall v. Railroad, IG How. 314, in this court and upon the principles there enunci- ated in behalf of the court by Grier, J. They relied also on Tool Co. v. Norris, 2 Wall. 54. B. F. Butler and R. D. Mussey, contra. The case relied on by opposing counsel Is widely different from this one. There, Marshall entered— as the report of the case shows— into a contract with the Bal- timore and Ohio Railroad Company, to ob- tain certain favorable legislation in Virginia for the contingent compensation of fifty thou- sand dollars by the use of personal, secret, and sinister influences upon the legislators. He expressly stated that his plan required "absolute secrecy," and "that he could al- lege 'an ostensible reason' for his presence in Richmond and his active interference with- out disclosing his real character and object." He spoke of using "outdoor influence" to af- fect the legislators through their "kind and social dispositions," and pictured them as "careless and good-natured," "engaged in idle pleasures," c-apable of being "moulded lik'e wax" by the most "pressing influences." The company authorized him to use these means. The question in that case, therefore, was, whether a contract for contingent compensa- tion for obtaining legislation by the use of secret, sinister and personal influences upon legislators was or was not contrary to the policy of the law. And the decision of that question was the decision of the case. In Marshall's Case, the plaintiff and defend- ant combined together to perpetrate a fraud PUBLIC POLICY— INJURY TO PUBLIC SERVICE. 431 upon the servants of tlie public engaged In legislating for the public good, and it was this fact which made the contract infanaous and disgraceful and incapable of enforcement In the courts; not that the action sought was that of a legislature. The case at bar differs from that of Mar- shall, toto ca-lo. Here both father and son were opi'nly and avowedly attorneys for their client, Trist. They never presented them- selves to anybody in any different or other respect. Every act of theirs was open, fair, and honorable. Will it be denied tliat any man having a claim on the government, may appear in per- son before a committee of congress, If they allow him, or speak to members of congress, If they incline to hear him; point out to them the justice of his claim, and put before them any and all honorable considerations which may make them see that the case ought to be decided in his favor? This, we assume, will not be denied. But suppose tliat he Is an old man. ^r a man infirm and sick; one, withal, living away from the seat of govern- ment; a case, it may be stated, in passing, the exact case of Mr. Trist; for he was old, infirm, sick, and lived at Alexandria. Now, If Mr. Trist being well had the right to call upon committees or members of congress, and (if they invited him or were willing to listen to him) to show to them that he negotiated, as he asserted that he did, the treaty of Guadalupe Hidalgo, and should be paid for doing so, what principle of either morals or policy, public or private, was there to prevent him (being thus old, infirm, sick, and away from Washington) from employing an honor- able member of the Mas;sachusetts bar to do the same thing for him? What principle to prevent him from doing by attorney that which he had himself the right, but from the visitation of God, had not himself, and at that time, the physical ability to do? We are not here asking the court to open the door to corrupt influenoGs upon congress, or to give aid to that which is popularly known as "lobbying," and is properly de- nounced as dishonoi-ahlG. But we are ask- Insr that by giving the sanction of the law to an ouen and honorable advocacy by counse' r>f nrivate rights before legislative bodies, the court shall aid in doing away with tlie em- ployment of agencies which work secretly and dishonorably. The records of congress show that with honorable motives and dishonorable stimu- lants both combined and acting upon the two classes of persons— upright and avowed, the Childs; or dishonest and secret, the Mar- shalls — who urge claims upon congress, out of fifteen tJiousand private claims put before It since the government was organized, not more than one-half have been acted upon in any way. Are all private claims — claims In which the public has no Interest— to be left absolutely to the action of congress itself, moving only sua sponto? If so, they will never be acted upon. They can come before the body only through the action of private p;;!ties. There will, therefore, always be solicitation before legislatures so long as legislatures have the power and exercise it of passing private laws. For the gift, or the art, of statement and persuasion is not the common proi>erty of mankind. And if solicitation of some sort there mu.st be, shall It come from the mouths of such men as Linus Child and his son— lawyers both, of unquestioned integrity — and be an open and upright solicitation of the intellect and the reason of the legislator; or shall It be made, by outlawry, a secret, sinister and personal solicitation of his passions, his preju dices, and his vices? If you shall decide that the pledged word of his client as to compensation avails the congressional practitioner nothing; that a man who in his poverty makes a contract may repudiate It when the fruit of the contract is attained; then will you remit all work be- fore such bodies to men devoid of honor, ir- responsible both In character and property; preying alike upon the misfortunes of claim- ants and the weaknesses of legislators. [A good deal was said in the argument on both sides about contingent fees, but in view of the grounds on which the court based its judgment, a report of that part of the argu- ment would be of no pertinence.] Mr. Justice SWAYNE, delivered the opin- ion of the court. The court below decreed to the appellee the amount of his claim, and enjoined Trist from receiving from the treasury "any of the money appropriated to him" by congress, un- til he should have paid the demand of the appellee. This decree, as regards that portion of the fund not claimed by the appellee, is an anom- aly. Why the claim should affect that part of the fund to which it had no relation, is not easy to be imagined. This feature of the decree was doubtless the result of over- sight and inadvertence. The bill proceeds upon the grounds of the validity of the origi- nal contract, and a consequent lien in favor of the complainant upon the fund appropri- ated. We shall examine the latter ground first. Was tliere, in any view of the case, a lien? It is well settled that an order to pay a debt out of a particular fund belonging to the debtor gives to the creditor a specific equitable lien upon the fund, and binds it in the hands of the drawee. Yeates v. Groves, 1 Ves. Jr. 2S0; Lett v. Morris, 4 Sim. 607; Bradley v. Root, 5 Paige, 632; 2 Story. Eq. Jur. § 1047. A part of the par- ticular fund may be assigned by an order, and the payee may enforce payment of the amount against the drawee. Field v. Mayor, 6 N. Y. 179. But a mere agreement to pay out of such fund is not sufficient. Something more Is necessary. There must be an ap- 432 ILLEGALITY OF OBJECT. propriation of the fund pro tanto, either by giving an order or by transferring it other- wise in snch a manner that the holder is authorized to pay the amount directly to the creditor without the further intervention of the debtor. Wright v. Ellison, 1 Wall. 16; Hoyt V. Story, 3 Barb. 2G4; Malcolm v. Scott, 3 Hare, 39; Rogers v. Hosack, IS Wend. 319. Viewing the subject in the light of these authorities, we are brought to the conclusion that the appellee had no lien upon the fund here in question. The understanding be- tween the elder Child and Trist was a per- sonal agreement. It could in nowise produce the e£f!ect insisted upon. For a breach of the agreement, the remedy was at law, not in equity, and the defendant had a constitu- tional right to a trial by jury. Wright v. El- lison, 1 Wall. 16. If there was no lien, there was no jurisdiction in equity. There is another consideration fatally ad- verse to the claim of a lien. The first sec- tion of the act of congress of February 2Gth, ISoo, declares that all transfers of any part of any claim against the United States, "or of any interest therein, whether absolute or conditional, shall be absolutely null and void, unless executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant therefor." That the claim set up in the bill to a specific part of the money appropriated is within this statute is too clear to admit of doubt. It would be a waste of time to dis- cuss the subject. But there is an objection of stiU greater gravity to the appellee's case. Was the contract a valid one? It was, on the part of Child, to procure by lobby serv- ice, if possible, the passage of a bill providing for the payment of the claim. The aid asked by the younger Child of Trist, which indi- cated what he considered needful, and doubt- less proposed to do and did do himself, is thus vividly pictured in his letter to Trist of the 20th February, 1871. After giving the names of several members of congress, from whom he had received favorable assurances, he proceeds: "Please write to your friends to write to any member of congress. Every vote tells, and a simple request may secure a vote, he not caring anything about it. Set every man you know at work. Even if he knows a page, for a page often gets a vote." In the Roman law it was declared that "a promise made to effect a base purpose, as to commit homicide or sacrilege, is not binding." Just. Inst. lib. 3, tit. 19, par. 24. In our ju- risprudence a contract may be illegal and void because it is contrary to a constitution or statute, or inconsistent with sound policy and good morals. Lord Mansfield said (Jones v. Randall, 1 Covpp. 39): "Many contracts which are not against morality, are still void as being against the maxims of sound policy." It is a rule of the common law of univer- sal application, that where a contract express or implied is tainted with either of the vice& last named, as to the consideration or the thing to be done, no alleged right founded upon it can be enforced in a court of justice. Before considering the contract here in question, it may be weU, by way of illustra- tion, to advert to some of the cases present- ing the subject in other phases, in which the principle has been adversely applied. Within the condemned category are: An agreement to pay for supporting for election a candidate for sheriff, Swayze v. HuU, 8 N. J. Law, 54; to pay for resigning a public po- sition to make room for another, Eddy v. Capron, 4 R. I. 395; Parsons v. Thompson, 1 H. Bl. 322; to pay for not bidding at a sheriff's sale of real property, Jones v. Cas- well, 3 Johns. Cas. 29; to pay for not bidding for articles to be sold by the goveniment at auction, Doolin v. Ward, 6 Johns, 194; to pay for not bidding for a contract to carry the mail on a specified route, Gulick v. Bailey, lO N. J. Law, 87; to pay a person for his aid and influence in procuring an office, and for not being a candidate himself, Gray v. Hook, 4 N. Y. 449; to pay for procuring a contract from the government, Tool Co. v. Norris, 2 W^aU. 45; to pay for procuring signatures to a petition to the governor for a pardon, Hatz- field V. Gulden, 7 Watts, 152; to sell land ta a particular person when the surrogate's or- der to sell should have been obtained. Over- seers of Bridgewater v. Overseers of Brook- field, 3 Cow. 299; to pay for suppressing evi- dence and compounding a felony, CoUins v. Blantern, 2 Wils. 347; to convey and assign a part of what should come from an ancestor by descent, devise, or distribution, Boynton v. Hubbard, 7 Mass. 112; to pay for promot- ing a marriage, Scribblehill v. Brett, 4 Brown Pari. Cas. 144; Anindel v. Trevillian, 1 Ch. Rep. 47; to influence the disposition of prop- erty by will in a particular way, Debenham V. Ox, 1 Ves. 276. See, also, Add. Cont. 91; 1 Story, Eq. c 7; Collins v. Blantern, 1 Smith Lead. Cas. 676. Am. note. The question now before us has been de- cided in four American cases. They were all ably considered, and in all of them the con- tract was held to be against public policy, and void. Clippiuger v. Hepbaugh, 5 Watts & S. 315; Harris v. Roofs Ex'r, 10 Barb. 489; Rose & Hawley v. Truax, 21 Barb. 361; Marshall v. Railroad Co., 16 Hoav. 314. We entertain no doubt that in such cases, as under all other circumstances, an agreement express or im- plied for purely professional services is valid. Within this category are included, drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing, to a committee or other proper au- thority, and other services of like character. All these things are intended to reach oulj' the reason of those sought to be influenced. They rest on the same piinciple of ethics as pro- fessional services rendered in a court of jus- tice, and are no more exceptionable. But PUBLIC POLICY— INJURY TO PUBLIC SEllYICE. 433 such sorricos are sciiarated by a broad line of demarcation from personal solicitation, and the other means and apphances which the correspondence shows were resorted to in this case. There Is no reason to believe that they involved anything corrupt or dilferont from what is usually practiced by all paid lobbyists in the prosecution of their business. The foundation of a republic Is the virtue of its citizens. They are at once sovereij,'us and subjects. As the foundation is under- mined, the structure is weakened. When it Is destroyed, the fabric must fall. Such is the voice of universal history. 1 Montes(l. Spirit of Laws, 17. The theory of our gov- ernment is, that all public stations are trusts, and that those clothed with them are to be animated in the discharge of their duties solely by considerations of right, justice, and the public good. They are never to descend to a lower plane. But there is a correlative duty resting upon the citizen. In his intercourse with those in authority, whether executive or legislative, touching the performance of their functions, he is bound to exhibit truth, frank- ness, and integrity. Any departure from the line, of rectitude In such cases, is not only bad In morals, but Involves a public wrong. No people can have any higher public inter- est, except the preservation of their liberties, than integrity in the administration of their government in all its departments. / The agreement in the present case was for the sale of the influence and exertions of the /lobby agent to bring about the passage of a /law for the payment of a private claim, with- out reference to its merits, by means which, If not corrupt, were illegitimate, and consid- ered in connection with the pecuniary inter- lest of the agent at stake, contrary to the mlainest principles of public policy. No one lias a right, in such circumstances, to put himself in a position of temptation to do what is regarded as so pernicious In its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertak- ing. If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, tlie moral sense of every right-minded man would instinctively denounce the employer and em- ployed as steeped in corruption, and the em- ployment as infamous. If the instances were numerous, open, and tolerated, they would be regarded as meas- uring tlie decay of the public morals and the degeneracy of the times. No prophetic spirit would be needed to foretell the consequences .near at hand. The same thing in lesser leg- islation, if not so prolific of alarming evils, is not less vicious in itself, nor less to be con- demned. The vital principle of both is the same. The evils of the latter are of sutli- cient magnitude to invite the most serious consideration. The prohibition of the law UOPK.SEr...CAS.CONT. — 28 rests upon a solid foundation. A private bill is apt to attract little attention. It involves no great public Interest, and usually failij to excite much dis, and provides that appellees or said Tenney should endeavor to get control of all of the claims against said Smith, with power to compro- mise the same as follows: "The claim of .1. V. FarwcU & Co. and A. S. Gage & Co. at par; the claims of the Omaha banks at 50 cents on the dollar; claims of other attaching credit- ors, up to the amount of $78,000, at thirty cents on the dollar, and all other claims at twenty cents on the dollar." And appellant undertook and agreed on his part, as alleged, "to furnish the affidavits of L. L. Smith, Fred W. Fuller, alias Pullen, and Frank C. Moies, of the facts of the sale by Smith to Lowey, showing clearly that no consideration was paid by Lowey, and that he knew of Smith's insolvency, to be used on motion for new trial in the case of Cole v. Miller; and that the testimony of said witnesses, either In person or by depositions, should be given, of like tenor, to be used upon the next trial, or any other legal proceedings instituted by said Tenney against said Lowey." And "that for such consideration it was agreed that your orator [said Goodrich] should have one quar- ter of all money realized upon their said claims out of the property transferred by said Smith to said Lowey, or in any litigation with said Lowey or Cole, in respect to the same, and the same should be paid to said Good- rich [appellant] as fast as the money should be collected; two thousand dollars thereof to be retained by said Tenney on account of costs and expenses; Smith to be released by the consenting creditors from any right they might have to arrest him, and from their claims entirely, when such evidence should be procured and given," etc. The bill al- leges that appellant obtained the affidavits of said Fuller and Moies, and the further affi- davit of Smith, and delivered them to said Tenney, "and which were accepted and ap- proved by said Tenney, as in all respects ac- cording to the wishes and purposes of said defendants, [appellees,] and a satisfactory compliance with the terms and conditions of said agreement." And that appellees, by means of a circular letter addressed to Smith's creditors, etc., had by the 17th day of May, ISSB, obtained control of claims to the amount of $125,000; that Smith, under an arrangement procured by appellant with certain of his creditors, that they would pro- cure persons to go bail for him if he should be arrested by other creditors, had returned to Chicago, and on said day executed and de« livered to said D. K. Tenney, as trustee for creditors, his judgment note for the sum of $125,500, the sum of $.500 being added as an attorney's fee; that judgment was entered up thereon, and, an execution being returned nulla bona, a creditor's bill was filed against said Smith, Lowey, and others to subject said property transferred by Smith to Lowey, rUBLIC POLICY— OBSTRUCTION OF JUSTICE. 435 and the avails thereof, to the payment of said judgment, upon the ground that said trans- fer was without consideration, and fraudu- lent as against creditors. It is further al- leged that appellant "gave diligent attention to the securing of the testimony of the said Smith and said Fuller, alias Pullen, and the said Moies, to be used on the hearing of said cause, and in the progi'ess thereof, and all such affidavits as were called for or required by said defendants [appellees] during the progress "of said cause, and did and perform- ed, to the satisfaction of said defendants, all that was required by them • ♦ • under and pursuant to the terms of • • • said agreement." It Is alleged that Smith, Ful- ler, and Moies each attended, and gave testi- mony and affidavits In said cause, when re- quired to do so, etc. Tlio result is alleged to have been a decree on the 28th of May, 1SS8, two years after filing the bill. In favor of Tenney, etc., and against Lowey, for the sum of $117,416.06, and which was, on the 0th day of December, 1S88, received by said Tenney, amounting at that date, principal and interest, to $120,500, "or thereabout." Thirty thousand dollars, or one fourth of the sum collected, less $500. presumably the at- torney fee Included In the note. Is alleged to have become immediately due and payable to appellant under said contract; and It Is to enforce an accounting and payment of this sum, under said contract alone, that this bill Is filed. There Is no pretense In the bill of any other or different agreement by which said money, or any part of It, would become payable to appellant, or any consid- eration, other than performing said agree- ment on his part, moving to appellant for its payment. Other parts of the bill are suffi- ciently noticed In the opinion of the court. A demurrer was interposed and sustained, and decree entered dismissing the bill. On appeal to the appellate court this decree was affirmed, and the complainant prosecutes this further appeal. H. T. & L. Helm, for appellant. Tenny, Church & Coffeen, (William E. Church, of counsel,) for appellees. SHOPE, J., (after stating the facts.) It Is probable that the demurrer was properly sustained upon the ground that, if the com- plainant had a right of recovery, his remedy was compU'te at law, and possibly, also, upon the ground of laches; but we will consider the single question ot the validity of the con- tract sought to be enforced. No good pur- pose can be served by a considenition of the allegations of this bill setting up the confederacy and fraud by which appellant was induced to •=i0 of which was de- livered to an agent of the defendant A bill was filed by the annuitant for the purpose of procuring a decree declaring the value of the annuity, and enforcing its payment out of the allowance to the defendant. The master of the roils found the agreement for the pay- ment of the annuity to be illegal, and, ad- mitting tiiere existed an equity against the fund, if it could be reached through a legal agreement, said: "You have no claim to this money, except through the medium of an illegal agreement, which, according to tlift determinations, you cannot support. I should have no difficulty in following the fund, pro- vided you could recover against the party himself." And after citing Tenant v. Elliott, supra, as authority for the position that, if the company had paid the money into tlie hands of a third person for the use of the plaintiff, he might have recovered, further observed: "But in this instance it is paid to the party, for there can be no difference as to the payment to his agent. Then how are you to get at it, except through this agi*ee- ment? There is nothing collateral, in respect of which, the agreement being out of the question, a collateral demand arises. Here you cannot stir a step but through the illegal agreement, and it is impossible for the court to enforce it." So here the right of appel- lant to recover of appellees depends solely upon the contract, the provisions of which cannot be enforced in a court of justice. The unfortimate delay of appellant in dis- closing the facts alleged, for more than three years after the facts occurred, will probably prevent their investigation where they could receive that attention their merit demands; and the bill, not being verified, forms no basis for further investigation in this court. The bill was properly dismissed, and the judgment of the appellate court will be af- firmed- PUBLIC POLICY— OBSTRUCT [ON OF JUSTICE ^3^ JONES V. RICE. (18 Pick. 440.)' /t^ 439 Supreme Jndicial Court of Massachusett*. Middlesex. Jan. 21, 1837. Assumpsit on a pruuiis-soi-j' uole, dated Jan- uary 1st, 1835, made by tlie defendant to the plainUCf, for $147. At the ti'ial, before Shaw, G. J., It appear- ed tliat on the ni^ht of December 31st, 18;i4, a ball was given at the house of Joel Jones, In Sudbury; that an attempt was made by the defendant and Ufliers, to interrupt the balLby vioTence; that a riot ensued, in which some injury was done to J. Jones and oth- ers, assembled at the ball; that a complaint was filed before a justice of the peace and a warrant issued by him against some of the rioters; that the persona assembled at the ball ctiose a ccuiiinitt" e to irporton the terms which should N- proposed to the accused, for a settlciiioiit of tlio difficulty; that the com- mittee reported that the accused should pay the sum of $184; that of this amount the sum of $40 was for damages sustained by three individuals, $10 for the services of the officer, and $2 for the services of the magis- trate, and that the balance was for the pur- pose of stopping that anWLER V. CALLAN. 'ly (T N. E. 169. 102 N. Y. 395.) Court of Appeals of New York. June 1, 1SS6. Appeal from general term, New York com- mon pleas. Scott Lord, for appellant J. A. Kamping, for respondent. FINCn, J. It does not affect the validity of the contract between the attorney and his client that, measured by the old rules relat- ing to champerty and maintenance, it would have fallen under their condemnation; for neither doctrine now prevails except so far as preserved by our statutes. Sedgwick v. Stan- ton, 14 N. Y. 2S9. The attorney may agree upon his compensation; and it may be con- tingent upon his success, and payable out of the proceeds of the litigation. Such contracts are of common occurrence, and, while their propriety has been vehemently debated, they are not illegal, and, when fairly made, are steadily enforced. In substance, that was the contract here made, and there would be no question about It had it not contained a pro- vision by the terms of which the attorney not only agreed to rely upon success for his com- pensation, but also to assume all costs and expenses of the litigation, and indemnify his client against them. It is this feature of the contract which raises the question necessary to be determined. The facts of the case are not very fully developed, but appear to be that the defend- ant as devisee under a will, was entitled to certain real estate; his right dependent upon the validity of the will, and in some manner threatened by proceedings before the surro- gate, which put his interest in -peril, and made a defense essential to its protection. In this emergency he sought the aid and professional Bervice of the plaintiff, and retained him as attorney. The latter neither sought the re- tainer, nor did anything to Induce it So far as appears, it was not occasioned by any offer or solicitation of his, but originated in the free and unbribed choice of the client. The evi- dence does not show whether the latter had gained possession of the land devised, or was out of possession, but he gave to the attorney a deed of the one undivided half part of the property, taking back his covenant to conduct the defense to its close, paying all costs and expenses of the litigation, and indemnifying the devisee against all such liability. The agreement appears to have been purely one for compensation. If the client had given to the attorney money Instead of land, the contract would have differed In no respect ex- cept the contingent character of the compen- sation. The arrangement contemplated suc- cess in the litigation, in which event the land would pay the cosrs and expenses and the at- torney's reward, and both would be discharged out of the property of the client placed in the hands of the attorney for tliat precise pur- pose. The contract in no respect induced the litigation. That was already begun, and ex- isted independently of the agi'eement, and originated in other causes. It did not tend to- prolong the litigation. It made it to the in- terest of the attorney to close it as briefly and promptly as possible, and at as little cost and expense as prudence would permit. The plaintiff, therefore, stirred up no strife, in- duced no litigation, but merely agreed to take for his compensation so much of the value of the land conveyed to him as might remain aft- er, out of that value, the costs and expenses had been paid. We do not think the statute condemns such an agreement 3 Rev. St (6th Ed.i p. 449, §§ .59, 60; Code, §§ 73. 74. The Code revi- sion changed somewhat the language of the prohibition, but nevertheless must be deemed a substantial re-enactment of the earlier sec- tions. Browning v. Marvin, 100 N. Y. 148, 2 N. E. 03.5. They forbid— First the pm-- chase of obligations named by an attorney for the purpose and with the intent of bring- ing a suit thereon; and, second, any loan or advance, or agreement to loan or advance, "as an inducement to the placing, or in considera- tion of having placed, in the hands of such at- torney" any demand for collection. The stat- ute presupposes the existence of some right of action, valueless unless prosecuted to judg- ment, which the owner might or might not prosecute on his own behalf, but which he is induced to place in the hands of a particular attorney by reason of his agreement to loan or advance money to the client. It contem- plates a case in which tlie action might never have been brought but for the inducement of a loan or advance offered by the attorney; and in which the latter, by officious interfer- ence, procures the suit to be brought, and ob- tains a retainer in it The statute speaks of a "demand" which, by enforcement, will end In a "collection;" phrases which have no apt- ness to the situation of one simply defending a good title to land against the efforts of oth- ers seeking to destroy the devise under which he claims. The plaintiff made no "loan or ad- vance," in any proper sense of those words. They imply a liability on the part of the client to repay what was thus lent or ad- vanced. The attorney loaned nothing, and he advanced nothing to the client which the lat- ter was bound to reimburse. Simply, he was paid in advance an agreed price, taken in land instead of money, and out of which he was first to pay costs and expenses. The facts before us are not within the terms of the statutes, as it respects a "demand" which is the subject of "collection;" but our conclusion rests more strongly upon the con- viction that the agreement made was one for compensation merely, and had in it no vicious element of inducing litigation or holding out bribes for a retainer. The judgment should be reversed, and a new trial granted; costs to abide the event AH concur. PUBLIC POLICY— CHAMPERTY AND MAINTENANCE. 443 "^ (13 Fed. 317.) ^ Circuit Court, W. D. Missouri, W. D. Nov., 1881. Tlie case was tried before tlie court by agreement of parties, a jurj' being waived. Botsford & Williams and G. W. De Camp, for plaintiff. Willard P. Hall, Silas Wood- son, Benj. F. Stringfellow, and L. H. Waters, for defendant. McCRARY, C. J. The answer alleges that this suit is being prosecuted by one of the attorneys for plaintiff upon a champertous contract by which he is to pay the expenses xi£_t hc litiga tion anrT receive as his compen- satl on 40 per c ent, of tlio sum realized, and tfae^ efendant moves to dismiss the" suit for that reason. The proof sustains the allega^ tion or cnamperty, the testimony of the de- fendant himself being quite conclusive upon that point. This makes it necessary for the court to decide the Important question wheth- er the plaintiff can be defeated in his action upon the note by the proof that he has made a champertous contract with his attorney. In other words, can the defendant, the mak- er of a promissory note, avoid payment there- of or prevent a recovery thereon upon the ground that the holder of the note has made a void and unlawful agreement with an at- torney for the prosecution of a suit upon it. The authorities upon this question are In conflict. Some courts have ruled that if the fact that a suit is being prosecuted upon a champertous contract comes totbe knowledge of the court in any proper manner It should refuse longer to entertain the proceedings. Barker v. Barker, 14 Wis. 142; Webb v. Arm- strong, 5 Humph. 379; Morrison v. Deader- ick, 10 Humph. 342; Greenman v. Cohee, 61 Ind. 201. I Other courts have held that the fact that] jthere is an Illegal and champertous contract I /for the prosecution of a cause of action is I no ground of defense thereto, and can only be set up by the client against the attorney ' when the champertous agreement itself is sought to be enforced. Hilton v. Woods, L. -ftr 4 Eq. Cas. 432; Elborough v. Ayres, L. R. 10 Eq. Cas. 367; Whitney v. KirUand. 27 N. J. Eq. 333; Robinson v. Beall, 26 Ga. 17; Allison V. Railroad Co. 42 Iqwa, 274; Small V. Railroad Co. 8 N. W. 437. This latter view is In my judgment support- ed by the better reason. It Is not aecessary for the full protection of the client to go so far as to dismiss the suit for he Is In no » Irrelevant parts omitted. manner bound by the champertous agree- ment; nor are there any reasons founded on public^ policy that should require such dls^ miss al. If all champertous agreements shalF be hcTd'void, and the courts firmly refuse to enforce them, they will thereby be discour- aged and discountenanced to the same extent and in the same manner as are all other un- lawful, fraudulent, or void contracts. If, on the other hand, the defendant in an action upon a valid and binding contract may avoid liability or prevent a recovery by proving a champertous agreement for the prosecution of the suit between the plaintiff and his at- torney, an effect would thus be given to the champertous agreement reaching very far beyond that which attaches to any other il- legal contract The defendant in such case? is no party to the champerty; he is not in- terested In it nor in anywise Injured by it If the contract upon which he is sued is a "bona fide contract upon which a sum ol money is due from him to the plaintiff, and he has no defense upon that contract I can see no good reason for holding that he may be released by showing that the plaintiff has made a void and unlawful agreement with his attorney concerning the fee and expenses of the suit The tendency In the courts of this coun- try is stronger in the direction of relaxing the common-law doctrine concerning cham- perty and maintenance, so as to permit great- er libertj'^ of contracting between attorney and client than was formerly allowed, and this for the reason that the peculiar condi- tion of society which gave rise to the doc- trine has in a great measure passed away. In some of the states the common-law rule is altogether repudiated, and it is held tbat no such contract is now Invalid unless it con- travenes some existing statute of the state. Sedgwick v. Stanton. 14 N. Y. 2S9; Voorhees V. Darr, 51 Barb. 5S0; Richardson v. Row- land, 40 Conn. 572; Mathewson v. Fitch, 22 Cal. 86; Hoffman v. Vallejo, 45 Cal. 564; Lytle V. State, 17 Ark. 609. The common-law doctrine, however, pre- vails in Missouri, according to the decision of the supreme court of the state in Duke v. Harper, 66 Mo. 55. While following that rul- ing. I am disposed. In view of the general tendency of American courts, to relax some- what the rigor of the English rule, to apply It only to the champertous contract Itself, and not to allow debtors to make use of it to avoid the payment of their honest obliga- tions. It follows that the defense of champerty In this case cannot be maintained, and that the motion to dismiss must be overruled- 444 ILLEGALITY OF OBJECT. .^ SAXON V. WOOD. At (30 .N. K. 797, 4 Ind. App. 242.) Appellate Court of Indiana. March 16, 1892, Appeal from circuit court, Fayette county; N. S. Gavin, Special Judge. Action by Addie Wood against Walter Sax- on for the breach of a promise of marriage. Judgment for plaintiff. Defendant appeals. Reversed. J. I. Little and D. W. McKee, for appellant. Reuben Conner and H. L. Frost, for appellee. BLACK, J. The appellee, a minor, by her next friend, sued the appellant. Upon the appellant's motion, the next friend was re- moved. The appellee was permitted to prose- cute her suit as a poor person. She recovered judgment for $250. A demurrer to the com- plaint for want of sufficient facts was ovemil- ed. This ruling alone is assigned as error. The complaint, filed in September, 1&89, omit- ting the title of the cause, was as follows: "Addie Wood, plaintiff, by Emma L. Disbor- ough, her next friend, complains of Walter Saxon, defendant, and says that plaintiff was a minor of the age of twenty years on the day of May, 1889; that, for a period of one year prior to the time of the prom- i.se hereinafter alleged, the defendant kept company with, and paid his attentions to, plaintiff as her suitor; that on the day of September, 1SS8, while so keeping company and paying his attentions, defendant solicited plaintiff to have sexual intercourse with him, which she refused to do; that thereu;pQiLjie- fendant_agreed with and promised her that if she _WQUld have sexual intercourse with him, and she should become pregnant from such intercourse, he would at once marry her; that in consideration of such promise and agree- ment so to marry in case of pregnancy, to which promise and agreement she assented, plaintiff yielded to defendant's solicitations, and did, on four or five occasions, then and on days following, have sexual intercourse with defendant, from which pregnancy resulted, and from which a child was bom to plaintiff; that plaintiff was at the time of such promise and intercourse, and still is, unmarried; that, immediately upon the discovery of such preg- nancy, plaintiff, who was then wiUing to mar- ry defendant, requested defendant to fulfill his said promise of marriage, which defendant re- fused, and still refuses, to do, to plaintiff's damage in the sum of five thousand dollars. Wherefore," eta In an action for a breach of a promise to marry, a consideration for the promise must be shown. There must have been mutual promises to marry. Unless there has been a promise on the part of the plaintiff, the prom- ise of the defendant is void for want of con- sideration. Adams v. Byerly, 123 Ind. 368, 24 N. E. 130. In the case before us the agree- ment of the parties did not consist merely of mutual promises to marry. The promise and agn^ement to which it was alleged the ap- pellee assented was to marry in case of preg- nancy resulting from her future intercourse with the appellant. It is alleged that he so- licited her, not to marry him, but to have sexual intercourse with him, and oft'ered mar- riage as a consideration for such intercourse and consequent pregnancy. Iler acceptance of his offer implied her agreement to marry if their intercourse should result in her pregnan- cy. The consideration of his promise to mar- ry was'^alTe'ged to be that she should have sex- ual intercourse with him, and should thereby become pregnant. The marriage which they agreed about was not to take place until she should have so paid for it. A woman cannot maintain an action for her own seduction, when the yielding of her person has been in- duced by the promise of a pecuniary reward, (Wilson V. Ensworth, 85 Ind. 399;) but she may maintain such an action where she has been prevailed upon to surrender her chastity under the promise of the seducer to marry her, (Lee v. Hefley, 21 Ind. 98; Shewalter v. Bergman, 123 Ind. 155, 23 N. E. GS6, and cases cited.) Her action for seduction is an action of tort provided by statute, whereby she obtains damages for the defendant's wrong, notwithstanding her consent to the act which injures her. An action for a breach of promise to marry is a common-law action founded upon a contract. An action will noj; lie for the breach of a contract based upon .^n illegal or immoral consideration. In 2 Kent, Comm. 466, it Is said: "The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy or good morals, ex turpi contractu actio non oritur, and no person, even so far back as the feudal ages, was permit- ted by law to stipulate for iniquity. * • • If the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it." See.^ also, 2 Chit. Cent. (11th Am. Ed.) 979; 1 Pars.' Cent. 4.56: Bish. Cont. § 494; 1 Whart Cont. §§ 370-373. The validity of a man's prom- ise to marry a woman is dependent upon the consideration existing for such promise. Fel- ger V. Etzell, 75 Ind. 417-419. In Hanks v. Naglee, 54 Cal. 51, which was an action for a breach of promise to marry, the plaintiff tes- tified, in substt^>nce, that the agreement be- tween the parties was that the plaintiff should then presently surrender her person to the de- fendant, and that in consideration of such sm-- render the defendant would afterwards mar- ry her. It was held that, upon well-settled principles, the plaintiff could not recover upon such a contract; that, being a contract for illic- it cohabitation, it was tainted with immorali- ty. See, also, Boigneros v. Boulon, 54 Cal. 146; Baldy v. Stratton. 11 Pa. St. 316; Goodal V. Thurman, 1 Head, 208; Steinfield v. Levy, 16 Abb. Prac. (N. S.) 26. If it be said that the complaint showed by implication a promise of the appellee to marry the appellant, yet she is not shown to have made any promise which PUBLIC POLICY— IMMORAL AGREEMENTS. 445 rould serve as a consideration for bis prom- ise. Her implied, promise was so united wiih thcjmmora j part of the corisid erat[uii. aniLso d ependent upon th e consetiuonces of tbe_ijjj- mnf;\]___pnjjdnf;f- _Qrf)pns7vT7~thn t it cannot be separated and m ade to scr\;e_'as a valid con- ^BideratioD ^ Steinfield v. Levy, supra; James v."Jellison, 94 Ind. 292; Lodge v. Crary, 93 Ind. 238; Riclvctts v. Harvey. 100 lud. oi'A, G N, E. 325. The appellee relics in argument upon Kurtz v. Frank, 7G Ind. ij94; Wilson v. Ensworth, 85 Ind. 399; and Kenyon v. Peo- ple, 2G N. Y. 203. Kurtz v. Franlc, supra, was an action for breach of man-iage con- tract. The questions presented on appeal arose upon a motion for a new trial. It is said in the opinion of the court: "The plain- tiff testified that the defendant promised to marry her in September or October, (1878;) that he said he would marry her in the fall, if they could agree and get along and be true to each other; but, If she became pregnant from their intercourse, he would marry her immediately. She did become pregmmt about the middle of July, 1878, and informed the defendant of the fact as soon as aware of it Upon this evidence it Is insisted that the agreement to marry immediately, in case of the plaintiff's pregnancy, is void, because im- moral, and that, aside from this part of the agreement, the defendant had until the 1st of December within which to fulfill his en- gagement, and consequently that the suit, be- gun as it was before that date, was prema- turely brought. It does not appear that the illicit intercourse entered into the considera- tion of the marriage contract, but the appel- lant, having agreed to marry the appellee at a time then in the future, obtained the inter- course upon an assurance that, if pregnancy resulted, the contract already made should be performed at once. This did not supersede the original agreement, but fixed the time of its performance. Clark v. Pendleton, 20 Conn. 495. We are not prepared to lend judicial sanction and protection to the seducer by de- claring that he may escape the obligation of his contract, so made, on the plea that it is immoral. But if this were otherwise, and if, by its terms, the contract was not to be per- formed until at a time subsequent to the commencement of the suit, yet if, before the suit was brought, the appellant had renounced the contract, and declared his purpo.se not to keep it, that coastituted a breach for which the appellee had an immediate right of ac- tion." The appellee relies upon the sentence, "We are not prepared," etc. This sentence, and the portion of the opinion following it, as above quoted, had reference to the question whether the action was prematurely brought. The case lends no aid to the contention of the appellee. The court, in effect, held that if the time of performance fixed by the contract, in- to wltich no immorality entered, could not be changed and fixed by the assurance on the part of the defendant that, if pregnancy should result, the contract already made should he performed at once, then his renun - ciation of t he i-ynt roi-t to marry const ituted ^ breacli of that coliTTacipand'gave^tlie^plajii- tiff an iramediaterjiiht of actiu-t oa tlui cy£- tractj_and t h£re£ace_U was not necessary that tlie commencement of the action should hcita been delayed until the time fixed for the marriage in the original contract. Wilson v. Ensworth, supra, was an action for the plain- tiff's own .seduction. It was said in the opin- ion of the court: "In this ease the promi.se was pecuniarj' aid. Reliance upon such a promise did not make the act seduction. A promise to marrj' would be different, and con- stitute a sullicient Inducement. The yielding of the woman to the solicitations of the man, under such a promise, would imply a prom- ise on the part of the woman to marry the man. The contract would be legal, and for its breach the law would give the injured party a remedy. Kenyon v. People, 2G N. Y. 203; Kurtz V. Frank, 7G Ind. 594." The injured party in such case might have a remedy by ac- tion for seduction, but illicit intercourse could not form a valid consideration for the con- tract to marry. The statements that the con- tract would be legal, and tliat an action would Lie for its breach, were not necessary to the decision of the case. Kenyon v. People, su- pra, was a criminal prosecution for seduc- tion. The judge of the trial court charged the jury that, "if they were fully satisfied from the evidence that the defendant promised to marry the prosecutrix if she would have carnal connection with him, and she, believ- ing and confiding in such promise, and In- tending on her part to accept such offer of marriage, did have such carnal connection, it is a suilicient promise of marriage under the statute." The statute thus referred to was: "Any man who shall, under promise of mar- riage, seduce and have illicit intercourse with any unmarried female of previous chaste char- acter, shall be guilty of a misdemeanor," etc. In the opinion of Wright. J., it was said of this instruction: "This seems to me unob- jectionable. It is not necessary that the pri>m- ise should be a valid and binding one between the parties. The offense consists in seducing and having illicit connection witli an unmar- ried female under promise of marriage. It Is enough that a promi.se is made which is a consideration for or inducement to the in- tercourse." Having thus given a sutficient reason for upholding the instruction, the judge proceeded: "But if the statute required the promise to be a valid one, the charge was correct. A mutual promise on the part of the female seduced is implied if she yields to th« solicitations of the seducer, madp under his promise to marry." This suggestion that .such implied promise, together with the st^ducer's express promise, made in consideration of or dependent upon solicited carnal intercourse, could constitute a valid contract to marry. Is contrary to principle and authority. It ap- pears from the report of the case that Bal- 446 ILLEGALITY OF OBJECT. com, J., "concurred with Judge Wright in the ; conclusion that it was unnecessary for the district attorney to prove there was a valid contract of marriage between the prosecutrix | and prisoner prior to the illicit connection, j and said, among other things, that, before the statute could be construed as contended for by 1 the prisoner's counsel, it should read that any man who shall, under 'contract' of marriage, seduce, etc., and not any man who shaU, un- der 'promise' of marriage, seduce, etc., as it now is." The judgment is reversed, and the cause is remanded, with instruction to sus- tain the demurrer to the complaint PUBLIC POLICY— GAMING AND WAGERS. 447 ^^/^ ^ 3 ^ COLI.AMER V. DAT. (2 Vt. 144.) finprcme Court of Vermont. Windsor. Feb., 1829. This was an action of trover. brouc:ht up from the County Court for the re%isi<)n of their decision presented in the following case, agreed to by the parties, to wit: "In this action, plaintiff offered to prove, at the trial, that, on the day mentioned in the dec- laration, the plaintiff and defendant were to- gether in the ollice of Jacob Collamer, at *145 Itoyalton— that *while there, a gentle- man passed in a chaise: when> defendant asked, whose chaise is that? Plaintiff answered. Dr. Denison's. Defendant said no, it is not Denison's chaise: I will bet my watch against yours that it is not Denison's chaise — That to this proposal plaintiff agreed — That each of the parties then took out his watch, and laid it upon the table: and it was then mutually agreed by the parties, that they would go together, and ascertain whether the said chaise was the said Denison's chaise; and that, if it was, plain- tiff should take both w^atches; and, if not, de- fendant should take both, as and for his own — That they did proceed and examine, and found it to be said Denison's chaise — That the parties then returned to the said office, and the defend- ant immediately took up his watch, and carried it away — That, on the same day, plaintiff" de- manded said watch of defendant, who refused to deliver it, but converted it to his own use. This evidence was objected to by the defend- ant's counsel, and excluded by the Court. To which decision the plaintiff excepted, and the exception was allowed, and the cause ordered to pass to the Supreme Court. Mr. Marsh, for plaintiff, contended. That by the common law, a wager in general, is legal, if it be not an excitement to a breach of the peace, or to immorality; or if it do not affect the feel- ings or interests of a third person, or expose him to ndicule, or libel him; or if it be not against sound policy; — and that the wager in question could not lead" to any of those conse- quences. He cited, among other authorities, 2 T. Rep. 693.— Cowp. 37. The counsel, also, contended, that actual delivery of the property, in this case, was not necessary in order to vest the property in the plaintiff, and to enable him to maintain trover; and cited Loft, 219.— Cro. ElJz. 866.— 1 T. Rep. 56—7 id. 9.— 1 Salk. 113. —1 Strange, 165. Atkin vs. Barwick. The Court declined hearing Mr. Everett, for the defendant The opinion of the Court was delivered by nUTCIIINSON, J.— Nothing appears in this case, but that the action would be maintainable by the common law of England, "^rhe common law is adopted by our statute, so far, and so far only, as the same is applicable to our local situation and circumsiances, and is not repug- nant to the constitution, or to any act of the legislature, of this state. Whether applicable, or not, must necessarily be a question of judi- cial decision: and this is. probably, the lirst action, that has ever called upon a court in this state to sanction such a contract of bet- ting. The .Judges of the L'tjurls in *Kng- ♦146 land have expressed their regret, of late years, that such transactions ever received the sanction of a court of justice: but, they yield to the force of the law, which they consider settled by a train of decisions, extending down from remote antiquity. We feel no such em- barrassment, nor are we willing to transmit any such embarrassment to our successors: nor dif- fuse into society the influence of a rule so de- moralizing, as would be the sanction of such a contract. It is honorable to this state, that the industrious and moral habits of our citizens have furnished no occasion to litigate questions of this nature. It is honorable to the legislature, that they have interposed checks to such games and sports as they supposed were creeping into use. By the Statute ot 1821, page 268, penalties are affixed to the winning or losing, or betting, in money, goods or chattels, on any game, or on any horse-race, or other sport, within this state. And said statute makes void anj' con- tracts and securities made and given for money won on such games. The species of betting now in question may not come within that statute, giving it the strict construction of a penal statute: ^tthe good morals of society require, that no encouragement should be af- forded to the acquisition of property, otherwise than by honest industry. Time might be occu- pied in seeking occasions to take advantage of the unwary, and acquiring a skill to take such advantage, which ought to be devoted to better purposes. In this case, according to the terms of the Det, the plaintiff had acquired a right to the possession of the watch, which the "defendant had laid down in the bet, but the plaintiff had not acquired the actual possession, when the defendant resumed his possession. The plain- tiff, therefore, had no complete right to the watch, without the sanction of such a contract of betting. That sanction is now withheld, and The judgment of the County Court is allirmed. 448 ILLEGALITY OF OBJECT. BEADLES et al. v. McELRATH et aL^ SAME V. LEET et al. '^^i) (3 S. W. 152, 85 Ky. 230.) J^ Court of Appeals of Kentucky. February 19, 1887- W. W. Tice and Wm. Lindsay, for appel- lant. Robertson & Robbins, Hargis «& East- In, and C. L. Baudle, for appellees. PRYOR, C. J. These two cases were ar- gued and will be considered as one case. The appellants, Beadles, Wood «& Co., were cotton brokers, engaged in buying and sell- ing cotton on commission, as they allege, in the city of New Orleans. They instituted these actions in the court below against the appellees for large sums of money said to have been advanced by them for the appel- lees in the purchase and sale of cotton on the cotton exchange in the city of New Orleans. The appellees, by way of defense, allege, in substance, that the claim set up by the ap- pellants originated by reason of certain trans- actions between them and appellants in the purchase and sale of cotton on speculation, and under contracts that were not to be per- formed for the delivery of the cotton, and the payment therefor, at the maturity of the contracts; that they were dedling in futures, by which they were to pay in money the dif- ference by reason of wagering bargains by which no cotton was sold or delivered, and none intended to be delivered, when the con- tracts were executed. They also allege that Beadles, Wood & Co. were dealing largely in cotton on their own account or for others, and that, having made contracts in which the appellees had no interest, similar to those made with the appellees, they were unable to meet their obligations with members of the cotton exchange, with whom they con- tracted, and, under the rules of the exchange, those contracts were all declared_foj*feited, including the contracts said to have been made for the appellees; that the forfeiture took place before their contracts matured, and in that manner they were deprived of any right to recover, without fault on the part of either the appellants, or of those with whom they contracted for their benefit. A jury, by special fijidings, determined the is- sue in the case of McElrath & Co., and the judge, on a submission of the law and facts to him, determined the case of Leet & Mead- ows. The one case, that against McElrath & Co., was decided for the defendants because of its vicious consideration, it being a gambling transaction; and the other, that of Leet & Meadows, on the ground that the forfeiture of the contracts was caused by the insolvency of the appellants, who were unable to com- ply with their contracts, and caused the loss to the defendants,— the judge further hold- ing that the contract was not a wagering con- tract, or against public policy. The cases were determined in different jurisdictions^ but were heard together in this court. The judgment in each case was rendered for the appellees. The appellants, having denied that the contracts were invalid, relied on cer- ta in rides of the cotton exchange, from which it appears that such contracts can be enforced for the delivery of the cotton, and further established by the testimony that the con- tracts were made subject to the rules of the cotton exchange, and should not, therefore, be regarded as wagering contracts. The con- tracts being in writing, it is further main- tained that parol proof is inadmissible to vary their terms. By the rules of the cotton exchange, the delivery of the cotton may be exacted, and the testimony conduces to show that the appellees entered into the contracts with the knowledge that by its terms those rules were to determine its legal effect. In fact, the jury 'trying this case, in response to special interrogatories, have so said by their verdict. In this case it, then, plainly appears that contracts legitimate on their face, containing stipulations plain and easily onderstood, by which the cotton purchased Is required to be delivered, have been declared vicious, in the one case at least, upon parol testimony show- ing that such was not the real purpose and intention of either party to the contract; the real purpose being, in fact, to speculate only on the rise and fall of prices, as has been determined by the special findings of the jury in the particular case. If the written con- tract and the rules of the cotton exchange are to conti'ol the decision of this case, then the facts and circumstances by which the real nature of the various transactions were brought to light should have been excluded from the jury, and a judgment rendered for the appellants, the plaintiffs below. The question simply is whether a contract, legal and proper in form, can be avoided by a proper pleading, and shown to be in fact a contract vicious in its character, and con- traiy to public policy; a contract legal on its face, but when explained by the facts and circumstances connected with its per- formance, only a gambling transaction. The rule is well established that parol evidence is not admissible to restrict, enlarge, or con- tradict the terms of a written contract where there is no ambiguity in its meaning; but when facts are alleged showing the existence of fraud, or that the contract was entered into as a device to avoid what would other- wise be a vicious consideration, as is in sub- stance alleged in this case, this rule has no application. The rule, says Mr. Gre^nleaf, *is not in- fringed by the admission of parol evidence showing that the instrument is altogether void, or that it never had any legal existence, either by reason of fraud, or for want of due execution and delivery, or for the illegal- ity of the subject-matter." Again: "I'arol evidence may be offered to show that the PUBLIC POLICY— FUTURES. 449 contract was ma do for the furtherance of objects forbiddou by law, whether it be by statute, or by an express rule of the common law, or by tlie gouenil polici' of the law," etc. 1 Greenl. Ev. U-tth Ed.) 3G(>, liCA. So. in this case, although by the rules of the cotton ex- change the cotton was to be delivered, and the contract made with the appellees express- ly stipulated the delivery at a particular day in the future, still, if _this was a merejde; vice to avoid th^ effect of a contract that thg pa rTIcs really madr, and if expressed in terms would have been \: mis, and without con- sideration, we perceive no reason why such facts may not be pleaded and proven, and the recovery on that account denied. That a contract of sale may be made for the future dylrfery of produce, or any article of per- sonal property, will not be contru 'rted; and that such a contract, by the agreement of parties, or by the regulations connected with the boards of trade in the country, may be transferable from one to the other, will be conceded; but when entered into for the sole purpose of speculating in futures, and with no intention to deliver the cotton pur- chased, but to pay the difference between the contract price of the cotton and its mar- ket price on the day. If a contract in good faith, the cotton was to be delivered, then the contract becomes a mere wager, and nei- ther party to it can recover. If a contract in good faith, it is binding; but when assailed as havTugTSeon ontorod Into to cover up the real intention of tlic [lartics, by making that appear legitimate which is really a gaming transaction, the defendant will be permitted to introduce parol proof to establish his de- fense. Such a contract will be presumed to be valid when unexplained, because it shows by its tenns an actual purchase and sale, and the burden is on the defense to show the il- legal intention of the parties. As said by Agnew, J., in the case of Kirkpatrick v. Bon- sall, "the law does not condemn such trans- actions, providing the intention really is that the commodity shall be actually delivered and received when the time for delivery ar- rives." 72 Pa. St. 155. In Barnard v. Back- haus, 52 Wis. 593, 6 N. W. 252, and 9 N. W. 595, that court went further, and held "that, for the sale and delivery at a future day of grain for a fixed price, it must affirmatively and satisfactorily appear that it was made with an actual view to the delivery of the grain, and not as a cover for a gambling transaction." It seems to us that the terms of the writ- ten contract imply good faith, and the bur- den should rest on the defense to show the illegal purpose. It becomes necessary, there- fore, to examine the nature of the transac- tions between these parties, in the light of the .testimony before lis, with a view of de- termining the validity of those contracts. By the rules of the cotton exchange, no one but a member can make contracts for the HOPK-SEL. CAS. CONT. — 29 purchase and future delivery of cottoir. Therefore the broker, being a member whei> purchasing, must necessarily purchase of a member of the exchange; and in this man- ner they make large contracts bj' either pur- hasing or selling cotton for future deliv« : y, and assign so much of the contract to eacU customer as the broker may have received orders to purchase or sell. He receives or- ders to purchase from A., B., C, and D., liv- ing in Kentucky, to purchase 2,(Xt(i bii.es for each, and a like number of onh i> from A., B., C, and D., living in Tennessee. The broker enters the exchange, and purchases of one or more members lG,fK)0 bales of cot- ton in his (the broker's) < wn name, and then on his books assigns, or by contract passes, to each one of his eight customers, 2,(X>0 bales of cotton, at the price for which he purchased; the purchasers depositing such a margin as is required by the rules of the exchange. If the broker should receive a telegram from one of the parties in Ken- tucky to sell his 2,000 bales before tin- time of delivery, and one of his custom' s from Tennessee should want to purchase an ad- ditional 2,000 bales, he then transfers on his books the cotton of the Kentucky customer as sold to the Tennessee customer, at th: i day's prices. All dealers are to keep up their margins as the fluctuations in prices de- mand, as this is determined by the rules of the exchange. The speculator in futures from this mode of dealing, whether for ac- tual delivery or not, has in fact made a pur- chase of cotton, but can never ascertain with whom the contract was made. The broker maj' inform the exchange for whom he is purchasing, but this gives no right of action against any one but the broker. The broker is insisting that he is the mere agent of the purchaser, and entitled to his commission, and, when told by the purchaser that the 2.000 bales of cotton must be delivered at the maturity of his contract. It Is then as- certained that the broker has purchased IG,- 000 bales of cotton of one or more members of the exchange in his own name, and, the margin not being kept up, the entire con- tract is forfeited, and the moneys already advanced on the margin gone to the vendor of the cotton. In February, 18S2, the appellants, being^ purchasers of near GO.OOO bales of cotton, no- tified the exchange that they were unalile to comply with their contracts. The forfeiture took place, and this was before the maturity of the contracts with the appellees; but it is now insisted that, if the margins had been kept up, the contracts would have remained in force. Suppose the margins had been for- warded to the appellants: from the testi- mony in this case, the appellants have pur- chased cotton exceeding in value more thai* ?200.000. and the margin being called for^ and not deposited, the whole contract went with the insolvency of the firm that took place in February, 1S62. These appellants 450 ILLEGALITY OF OBJECT. ' were in fact selling to the appellees, and were not their agents. They purchased large quantities of cotton in the exchange on their Individual account, and afterward distributed those purchases between their customers, leaving them without any remedy except against the broker for the delivery of the cot- ton, if such had in good faith been the con- tract between them. With the prices of cot- ton favoring the appellees, their claim as pur- chasers might have been enforced through their broker, in his name; but with an in- solvent commission merchant, whose credit alone enabled him in the first place to enter the exchange, and make these large pur- chases, the remedy was necessarily worth- less, because the party In fact liable had be- come insolvent. It is shown that within less than a year prior to these contracts with the appellees, that appellants contracted for 300,000 bales of cotton, and on the eighth of Febniary, 1S82, the day they failed, the contracts they had on hand compelled them to receive and pay for near 60,000 bales of cotton, a portion of which, they say, was the cotton of these appellees. The appellants were not worth exceeding $75,000, if that much, and yet it is argued that such contracts were valid business transactions, and the parties ex- pected to comply with the terms of each con- tract; or, if not, that the prime object was not to speculate merely on the rise and fall of cotton, but to receive or deliver the cotton purchased or sold. It is evident that if the margin had been forwarded by the appellees, that all would have gone in the financial wreck that followed the reckless ventm'es of men who were doubtless enterprising mer- chants, but who had speculated to such an extent, either for themselves or others, as to Involve all in financial ruin. This would con- etftute a complete defense to each action, re- gardless of the other questions raised, and the judgment in the case of Leet & Meadows was therefore proper. It is claimed that Mc- Elrath, one of the firm, was in New Orleans, and on the exchange, when some of this cot- ton was purchased. He was not a member of the exchange, and therefore made no pur- chases, but the cotton was purchased in the manner and as all other cotton was pur- chased for their customers by these appel- lants. They were simply paying the appel- lants a bonus for the privilege of trading with them, and were, in fact, the vendors, and the appellees the vendees, of the cotton. These appellees were men of limited means, living in this state, and contracting by tele- grams and letters for futures in cotton, with no intention or expectation of receiving a single bale, either from the appellants or any one else, and this was the intention and pur- pose of the contracts,— a fact known to the appellants as well as the appellees. The tes- timony of the appellants leaves no doubt on this subject, and neither the rules of the cot- ton exchange, nor the letter of the contract. will be allowed to give validity to such agree- ments. The opinion in the case of Sawyer v. Tag- gart, repoitwl in 14 Bush, 727, was based on the idea that no evidence was offered by the defense showing that the contracts were to be settled by the payment of differences; but, on the contrary, the plaintiffs had as- sumed the burden, or rather established, that the contracts were to be executed in good faith, with no evidence conflicting with such a conclusion. Here the character of the busi- ness transactions conducted by the appel- lants, from their own statements, both with the appellees and others, conduce to show that there was a tacit, if not an express, agreement that no cotton was to be deliver- ed, and, with the testimony for the defense, there can be no doubt on the subject. But it is argued that a mere tacit agree- ment, or one necessarily inferred from the cir- cumstances surrounding the various transac- tions connected with the positive statements of the defendants, cannot supplant that which the parties have reduced to writing, and the contracts must be enforced because they purport to be valid contracts, and the rules of the cotton exchange have so de- termined. In discussing a similar question, the supreme court, through Mr. Justice Mat- thews, said: "We do not doubt that the question whether the transaction came with- in the definition of wagers is one that may be determined upon the circumstances, the jury drawing all proper inferences as to the real intent and meaning of the parties; for, as was properly said in the charge, 'it maker; no difference that a bet or wager is made to assume the form of a contract.' Gambling is none the less such because it is carried on i n the form or guise of legitimate trade. It might therefore be the case that a series of transactions might present a succession of contracts perfectly valid in form, but which on the face of the whole, taken together, in connection with all the attendant circum- stances, might disclose indubitable evident' that they were mere wagers." Irwin v. Wil- liar, 110 U. S. 511, 4 Sup. Ct. 160. The bulk of the transactions in the ex- change by the appellants were in the depart- ment known as the "margin," as distinguish- ed from the other departments. The amount of cotton delivered in all the sales and pur- chases did not exceed 4,000 bales, and the proof conduces to show that the cotton was on consignment; but, whether so or not, it is unreasonable to suppose that the appellees, with their limited means, had undertaken to receive and pay for cotton exceeding in value greatly more than they were worth, and that appellants induced them to speculate through him as their agent with such an understand- ing or agreement. There are so many facts and circumstances leading to the opposite .conclusion as to the intention of both par- ties when these trades were made as leave no doubt as to the correctness of the judg- PUBLIC POLICY— FUTURES. 451 mcnt below. We are aware that the business of the cotton exchange Involves the greater part of the trade in the country's greatest staple, and that leading merchants and busi- ness men engage in such transactions; but this in no manner relieves the case from the vicious features of this class of contracts. Men, no doubt, of both personal and com- mercial integrity enter into such contracts. They are nevorthele.ss piratt'S upon the legiti- mate trade, and consumers of the country. Fictitious values, created by a speculation that causes the fluctuation in prices from day to day of all the leading products of the coun- try, based upon a species of gambling more ruinous to the people than any other, re- sult from such contracts as w made in this case. They will not be euiorced by the courts of this state. There are many question-s raiscil a» to the pleadings and evidence not necessaiy to be cousidiTod. SLS from the testimony of the plaintiffs alone these judgments were proper. Judgment atJirmed. 452 ILLEGALITY SriXKS V. DAVIS. (.32 Miss. 152.) Court of Errors aud Appeals of Mississippi. Oct. Term, 1856. Error from cii-cuit court, Tallaliatcliie coun- ty; W. L. HaiTis, Judge. 'This was a suit brouglat by W. P. Spiiiks against A. W. Davis, upon an agreement en- tered into between Spinlis and Davis, where- by Davis, for a consideration, undertakes, as attorney, to assume the administration of a certain estate, and collect a debt due to Spiuks. The defendant demurs and sets forth several causes, the principal of which is that the agreement is illegal, contrary to public policy, and therefore void, in support of which pr>sition a number of cases are cited, none of which I think are in point. The case cited from 4 Wash. C. C. R. 279, differs very widely f:om the one at bar. In that case absolute fraud aud corniption was charged; the others are of similar character. I cannot see how the agreement is contrary to public policy. It is clear that a person, when he is immediately interested, or a creditor, can take out letters of administration, but it is equally clear, that what he is authorized to do himself, he may authorize another to do for him. "Qui facit per alium, facit per se." The position of the attorney is not more in- consistent than would be the position of tlie principal; they are Identically the same. See Hutch. Code, G65, § 54. W. B. Helm, for plaintiff in error. Daniel Mayes, for defendant in error. HANDY, J. The declaration in this case states, in substance, that the plaintiff con- tracted with and retained the defendant as an attomey-at-law, to collect certain claims to a large amount, due him from the estate of one John Carson, deceased, who resided in Alabama, and died insolvent, but was en- titled to a distributive share of the estate of his father WiUiam Carson, who had previous- ly died in Tallahatchie county, in this state; that the said estate having been fully admin- istered and distribution made, and no dis- tributive share set apart or allowed to John Carson, and the plaintiff being advised, that in oixler to reach John's interest in his father's estate, it would be necessary to take out let- ters of administration of John's estate, and proceed against the administrators of the father's estate, contracted with and retained the defendant as an attorney, to take out let- ters of administration upon John's estate, and to collect his debt, for certain reasonable fees and reward to be paid to him; that the de- fendant accordingly took out letters of ad- ministration in the Tallahatchie probate court, at June term, 185G, and, in conjunction with other counsel retained with the defendant, the defendant, as such administrator, filed a bill in chancery against the distributees of Wil- liam Carson's estiite, and obtained a decree in his favor at October term, 1850, from or OBJECT. which an appeal was taken by the adverse parties, to this court; that pending that ap- peal, the defendant, without notice to the plaintiff or his associate attorney, fraudulent- ly stated to this court, that the suit was com- menced and prosecuted without his knowl- edge or consent, whereupon this com't, con- sidciii.g that admission as a confession of er- rors, and without examining tbe merits of the case, reversed the decree; and the same state- ment being afterwards niade to the chancery court, the bill was finally dismissed by that court, at April term, 1853. The declaration avers, that the plaintiff's debt could have been collected, but that it was prevented by the fraudulent conduct of the defendant; wherefore, he prays judgment against the de- fendant In his individual capacity for his debt, &c. The defendant demurred to this declaration upon many grounds, and judgment was ren- dered thereupon for the defendant; and for this alleged error, the case is brought here. We will proceed to consider the correctness of the judgment upon the most essential point of the demurrer. The first objection to the declaration is, that the contract set up is contrary to public policy, and, therefore, illegal and void. This agreement as stated is, in substance, that the defendant who was thus retained as the attorney of the plaintiff, to collect his debt, for compensation, should also become administrator of the debtor's estate, and there- by accomplish the object of his original en- gagement and collect the debt. The question is, do not these respective duties involve in- compatible obligations, or, does not the faith- ful performance of one of them tend neces- sarily to the violation of the other? It was the duty of the attorney diligently to prosecute the claim according to law, and to collect it if it could be done by legal means. It was the duty of the administrator to scru- tinize the claim rigidly, and to refuse pay- ment if there was any doubt about its just- ness in fact, or its validity according to strict legal rules; to defend, upon the ground of the statute of limitations, the illegality or want of consideration of the claim, or any other bar which was a sufficient defence to it in law. And all such defences It was the plain duty of the attorney to resist. In short, the at- torney was bouud to protect the interest of his client, and the administrator was prima- rily bound to protect the legal interests of the estate. Under such circumstances, the attor- ney c-ould not have performed his duty tO' prosecute the claim, if its validity had been doubtful, consistently with his duty to defend the estate against its collection. Hence, a strong temptation would necessarily arise to violate his duty in the latter capacity, and to pay the claim; because the attorney would thereby make a profit by his retainer in addi- tion to the commission which he would at all events receive as administrator; and instead of acting as a faithful and impartial adminis- PUBLIC POLICY— FKAUD AND BUEACU OF TRUST. 453 trator, he stands iiiidci a str< ii;; tfiiiiitaLion to abuse his trust to his owu priv/itu ^'aiu. It cJie claim should be of such doubtful valid- ity as to malie it the duty of the administra- tor to resist its payment and to render a suit necessary, what is his attitude? IIo must either become the plaintiff's attorney in the suit against himself as administrator, or he must procure some one else to bring the suit against him. In this, there would be an almost irre- sistible iudufcnient to malpractice and collu- sion; for, cun^idcring the infirmities of hu- man nature, it is scarcely to be supposed, that he would make a very vigorous defence to a suit in which he was directly interested that tlie plaintiff should recover. But in this case, the main object of the ar- rangement was the colle^--tion of the plaintiffs claim, and to tliat the defendant was primari- ly boimd by his agreement. The admiBis- tration was to be undertaken merely as a means to that end How, then, could the at- torney properly perform liis contract to coUect the plaintiff's claini, when it might become his duty as administrator to resist it? Either by the force of his contract, and in further- ance of the object of the undertaking, or by the temptation to do wrong which his situa- tion would render almost irresistible, he must act as administrator, so as to facilitate the end for which the whole arrangement was entered into, and thereby violate his duty in that capacity. The obligations are, therefore, manifestly inconsistent, and are calculated to induce a violation of one of two high public duties; and the agreement must therefore be con- demned as illegal and against public policy, so far as it charged the attorney, upon his individual undertaking, to collect the claim by means of the administration. It is no answer to this view of the case to say, that the defendant might properly have performed his duty generally, as adminis- trator, as well to others interested as to the plaintiff, and yet have properly paid the claim of the plaintiff; and that it is to be presumed that the arrangement was intended to be carried out by legal meajis, and not by those which were illegal. It is a sufficient objection to a contract, on the ground of public policy, that it has a direct tendency to induce fraud and malpractice upon the rights of others, or the violation or neglect of high public duties. Upon this principle, cou- tracts to procure the making of a will in favor of a particular party, or to bring about a mar- riage between certain parties.and the like, are held to be illegal as being against public policy. For although the act contracted to be done may be just and beneficial as between the parties immediately concerned in it, and though it be accomplished in good faith and without undue means, yet the contract to procure it to be done is held to be against public policy, be- cause its natural effect is to cause the party to abuse the confidence placed in him by those upon whom the infiuence Is to be exert- ed, and thereby prejudicially to affect the rights of others. Fuller v. Dame, IS Pick. 47li; Collins v. Blantern, 2 Wils. 347; 1 Slur. . Eq. Jut. §§ 2G5, 2GG; Chit Cont 525, 52G; 1 Lead. Cas. Eq. loO-lGO, and cases tliere cited. It is urged, In support of this action, that by our laws a creditor has the right to take out letters of administration upon his debtor's esta.te, if parties having the prior right fail to do so; and that there can be no impropri- ety In the attorney's doing that which his client, wIkj had the same temptation to do wrong as the attorney, is allowed to do. But the question is, not whether the attor- ney had the right to administer, but whether a contract by which he was either bound, or under a strong and direct temptation, to use his trust for the purpose of paying the claim of the plaintiff, is proper and legal. The creditor-administrator is under no contmct to induc-e him to abuse his trust; ami being known as a creditor, his acts will, in all jirob- ability, be closely examined by those inter- ested in the estate. But the attorney appears as a disinterested person, In whom the par- ties may confide for the faithful perf.irmance of all his duties, and especially for the protec- tion of the rights and interests of the estaie. He Is supposed not to be acting in his own right, but for the benefit of others, and im- partially; and from the confidence that may weU be presumed to be reposed in him, he will have much greater power to make under- hand arrangements than would the creditor himself, who was known to be acting mainly for his personal interest. The policy of the statute allowing a creditor to administer upon his debtor's estate, proceeds on the ground of enabling the creditor to collect his debt, and that from necessity, because no one else will administer. But it Is not to be ex- tended to justify agreements made by third persons who may become administrators, the performance of which will have a direct tend- ency to cause malpractice and fraud in the administration. Nor is this agreement of the same charac- ter as a contract to indemnify a party for be- coming administrator of an estate. In such a case, the administrator is bound to do noth- ing which at all conflicts with his duly as such. He undertaiies the trust for no ulte- rior collateral puii^ose, and the object is mere- ly to have the estate administered in due course of law. The indemnity or compensa- tion is only to induce him to take upon him- self the trust to be performed according to law, and there is no continuing inducement to malpractice after the trust is imdertaken. If these views of the case be correct, it fol- lows that however the conduct of the defend- ant, as stated in the declaration, may be con- demned in point of morals, or whether he be liable or not for his fraudulent conduct as ad- ministrator, no action against him individual- ly can be maint:Uned upon the agreement made by him; and the judgment sustaining the demurrer must be affirmed. 454 ILLEGALITY OF OBJECT. ^•^ r LOWE V. PEERS. (4 Burrows, 2225.) King's Bench. 1768. 363 This was an acLiou of covenaut, upon a mar- riage contiact; being a promise under the de- fendant's hand and seal, and in his own hand- writing, to the effect following— "I do hereby promise Mrs. Catherine Lowe, that I will not marry with any person besides herself: If I do, I agree to pay to the said Catherine Lowe £1,000 within three months next after I shall marry any body else. Witness my hand Newsham Peers and seal «Stc." This deed was executed in 1757. And in 1767, Peers mar- ried another woman. Whereupon this action was brought The plaintiff avers in her declaration, "that she had remained single, and was always willing and ready to marry him, whilst he continued single: but he married Elizabeth Gardiner." The breach was assigned in non- payment of the fl.OOO, though demanded. The defendant pleaded "non est factum." The question turned upon the second count only: for, it was admitted, that no sufficient evidence was given to support the first count. The cause was tried before Lord MANS- FIELD. It appeared in evidence, by letters that were read, that there had been a long courtship; and that this obligation was fairly and voluntarily given by the defendant to the plaintiff: the defendant pulled the stampt paper out of his own pocket; and wrote, signed, sealed, and executed it In the presence of one witness. And a witness who saw it executed, attested it, after the defendant was gone. There was no intercourse between the plaintiff and defendant afterwards. The wit- ness to prove this deed swore that the de- fendant sealed it before he wrote his name "Xewsham Peers." Evidence was called, on the other side, to prove the contrary. His lordship directed the jury to find for the plaintiff, with damages £1,000 if they thought the deed to be a good deed. If this direction was wrong, he gave the defendant leave to move for a new trial, without costs. Accordingly, on Thursday, 21st April last, Mr. Dunning, solicitor general, moved for a new trial, with liberty also to move after- wards in arrest of judgment Rule to shew cause. Upon shewing cause on Monday last (the 9th instant.) a question was proposed to be debated, "Whether the jury could give any more or less damages than the £1,000, the specific sum mentioned in the deed;" as well as "whether this instrument is good enough in law, to support any action whatsoever?" It was then agreed that both motions, (viz. for a new trial, and in arrest of judgment,) should come on to be argued together. Pursuant to which agreement, the case was, yesterday and to-day, argued by Sir Fletcher Norton, Mr. Cust and Mr. Wallace for the plaintiff; and by Mr. Dunning, solicitor gen- eral, and Mr. Mansfield for the defendant: but the court, in giving their opinions upon the two motions, entered so fully into the groimds and reasons upon which they founded their determination, and discussed the objec- tions and cases cited so particularly, as may render the arguments of the counsel unneces- sary to be given here at all; or at least more than a slight sketch of them. The general tendency of them was shortly this: The motion for a new trial was founded up- on an objection to the direction given to the jury, "to find the whole sum of £1,000 in damages, in case they should find for the plaintiff:" the counsel for the defendant in- sisting that the jury ought to have been left at liberty to give a less sum, if they had thought proper; the jury being judges of the damages, as well in covenant as in assumpsit. They cited James v. Morgan, 1 Lev. Ill, where the juiT were directed to give only the value of the horse in damages, upon an as- sumpsit "to pay a barley-corn a nail, doubling it every naU." They also cited and much re- lied upon Sir Baptist Hixt's Case, in 1 Rolle, Abr. p. 703, tit. "Trial," pi. 9, where a find- ing of less was holden to be good; and the jury are said to be chancellors, and may give such damages as the ease requires in equity. It was answered, that where a particular sum is liquidated and fixed by the agreement of the parties, and the breach of covenant as- signed in non-payment of that money, that fixed sum alone is the measure of the dam- ages. The motion in arrest of judgment was founded upon the following reasons— That all engagements in restraint of marriage are void. —That this engagement is of that sort- That there is no consideration for this contract It is not reciprocal: here is no mutuality; which is essential to the validity of a contract It was answered, that this whole transac- tion amounts to a mutual promise "to marry each other." The plaintiff's acceptance of this deed is sufficient evidence of her making such a promise. So that there were mutual prom- ises; and both were bound to perform them. Therefore there was u consideration for the defendant's promise. However, this promise is by a deed: ',nd a deed carries its own consideration. And this is not an engagement in restraint of marriage generally: it is only a restraint from marrying any body else but each other. Therefore it is not like the case of Baker v. White, 2 Vem. 215, or that of Woodhouse and Shepley. in 2 Atk. 535. Lord Mansfield stated the deed particularly, and the declaration upon it. The words are — "I do hereby promise Mrs. Catherine Lowe that I will not marry with any person besides herself: if I do. I agree to pay the said Cath- erine I/)we £1,000 within three months &c." The defendant was single, at the time; and so was the plaintiff. The second count avers that the plaintiff PUBLIC POLICY— DEIIOGATION OF MAllUIAGE RELATION. 455 was ready to marry liiin; and that after the makin;; the deed, he did marry another wo- inau, namely, one Elizabeth Gardiner: yet he, the defendant, did not, when requested by the plaintiff, pay the £1,000 which he had agreed to pay; and so (thout^h often reiiuosted) hath not kept the covenant made between them as aforesaid. So that the breach Is assigned in the not paying the £1,000. To this declaration "non est factum" was pleaded, by the defendant: but the jury found "that it was his deed;" and have given £1,000 damages. And by law and in jusUce, he ought to pay the £1,000. Money is the meas- ure of value. Therefore what else could the jury find but this £1,000 (unless they had also given interest after the three months?) This is not an action brought against him for not marrying her, or for hi«5 marrying any one else: the non-payment of the £l,fXK) is the ground of this action- -"That he did not, when requested, pay the £1,000." The money was payable upon a contingency: and the contingency has happened. Therefore it ought to be paid. There is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the latter case, the obligee has his election. Pie may either bring an ac- tion of debt for the penalty, and recover the penalty; (after which recovery of the penalty, he can not resort to the covenant; because the penalty is to be a satisfaction for the whole:) or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty, toties quoties. And upon this distinction they proceed in courts of equity. They wUl relieve against a penalty, upon a compensation: but where the covenant is "to pay a particular liquidated sum," a court of equity can not make a new covenant for a man; nor is tliere any room for compensation or relief. As in leases con- taining a covenant against plowing up a mead- ow; if the covenant be "not to plow;" and there be a penalty; a court of equity will re- lieve against the penalty, or will even go fur- ther than that (to preserve the substance of the agreement:) but If it is worded— "to pay £5 an acre for evei-y acre plowed up;" there is no alternative, no room for any relief against it; no oompensation; it is the sub- stance of the agi'eement. Here, the specified sum of £1,000 is found in damages: it is the particular liquidated sum fixed and agreed upon between the parties, and is therefore the proper quantum of the damages. The same reason answers to the motion for a new trial in the present case. As to the case mentioned by Mr. Mansfield, from 2 Rolle, Abr. 703.— It is impossible to support it: for it can not be, that a man should be obliged to take less than the liqui- dated sum. And the writ of error in that ease was plainly brought by the (Cro. Jac. 390) defendant. Besides, the damages could never be taken advantage of up-n a writ of error. How could the quantum of damages found by the jury be the subject of a writ of error? 'Tis therefore clear, that where the precise sum is not the es.sence of the agreement, the quantum of the damages may be assessed by the jury: but, where the precise sum is fixed and agreed upon betv.een the parties, that very sum is the ascertained damage, and the jury are confined to it. This brings the matter to the validity of the deed. Whatever grounds existed at that time, that could avail the defendant to avoid the deed, should have come on his part, by a proper plea, if it would in reality have been a good defence for him. And therefore if any such ground had existed in this case, as did exist in Shepley's Case (2 Atk. 535); or any other ground not appearing upon the face of the deed; it ought to have been avoided by a proper plea. Here, wj are upon the face of the deed; the plea is "non est factum.'' It is objected, that tliis is an engagement in restraint of marriage. It is answered, that this construction is di- rectly contrary to the words and intention of the deed; which amounts to a mutual agree- ment between these two persons "to marry each other;" and that the plaintifTs acceptance of the deed proves that; and that what the jury have found, is a sufficient reason to have it supposed that there was such a mutual agreement "to marry each other:" that, how- ever, this is, at the utmost, only a contract "that he would not marry any other woman; and that if he should marry any other woman, he would pay the plaintiff £1,000 within three months after he should so marry any other woman;" but it is very far from restraining his marrying at all. This is a point of very considerable impor- tance. All these contracts ought to be looked upon (as Lord Hardwicke said in the case of Wood- house V. Shepley) with a jealous eye; even supposing them clear of any direct fraud. In that case. Lord Hardwicke did not proceed on any circumstiinces of particular actual fraud; but on public and general considerations: and therefore he gave no costs. These engagements are liable to many mis- chiefs; to many dangerous consequences. When persons of different sexes, attached to each other, and thus contracting to marry each other, do not marry immediately, there is al- ways some reason or other against it; as dis- approbation of friends and relations, inequal- ity of circumstances, or the like. Both sides ought to continue free; otherwise, such con- tracts may be greatly abused; as, by putting women's virtue in danger, by too much con- fidence in men; or, by young men living with women without being married. Therefore these contracts are not to be extended by im- plication. 456 ILLEGALITY OF OBJECT. But here is not the least ground to saj- that this man has "engaged to marry this woman." Much less does any thing appear, of her en- gagixig to marry him. There is a great difference between promis- ing to maiTy a particular person; and prom- ising not to marry any one else. There is no colour for either of these constructions that have been offered by the plaintiff's counsel. This is only a restraint upon him against marrying any one else, besides the plaintiff: not a reciprocal engagement "to marry each • other;" or any thing like it. This penalty is set up against the defend- ant, after ten years have passed without any Intercourse between the plaintiff and him. Another reason why we should not strain in favour of this contract, is because if there was really any mutual contract under fair and equal circumstances, the plaintiff will still be at liberty to bring her action: for, a void bond can never stand in her way. Therefore I think, that what passed at the trial was perfectly right; that the measure of damages was the £1,000 and that this was such a contract as ought not to be carried in- to execution. The case of Baker v. White, 2 Vern. 215. "was not near so strong as the present case. That was in restraint of Elizabeth Baker's marrying again. There is a difference be- tween a restraint of a first marriage, and a restraint of a second marriage: the plaintiff there was a widow, when she gave the bond. And the transaction was. In effect, a mere wager, and nothing at all unfair in it: and yet, in that case, the bond was decreed to be delivered up to be cancelled. Mr. Justice Yates was of the same opinion, on both points. In actions of debt, it is fatal to the plaintiff, if he mistakes his demand; because the de- mand is not divisible. In covenant, it is di- visible. This deed was the only evidence upon which damages could be given. It is a covenant "to pay a stipulated sum upon a particular event" The event has happened: the action is brought upon it. On a writ of inquiry, the inquisi- tion would have been set aside, if less than the sum specified had been found. As to Sir Baptist Hixt's Case, 2 Rolle, Abr. '703. — What Lord Mansfield has said, is an answer to it. The jury ought to have allowed the stipulated sum for every acre that was wanting. For, according to that rate the pur- -chase-money was paid, or agreed to be paid; and according to that rate it ought to have been allowed or refunded: part of the money might have been actually paid. And on a writ of error, (as Lord Mansfield has observ- •ed,) the finding of damages by the jury could not come in question. So far, I am of opinion for the plaintiff: for, I think the £1,000 is the proper quantum of damages which the jury were bound to find. But on the motion in arrest of judgment. upon the invalidity of the deed— I am of opin- ion for the defendant. For, this agreement is in restraint of mar- riage. It is not a covenant to "marry the plaintiff;" but "not to marry any one else:" and yet she was under no obligation to marry him. So that it rvistrained him from man-y- ing at all, in case she had chosen not to per- 'iuit him to marry her. An action of covenant must be founded on the covenant, and the breach assigned within the words of it. Now if she had requested him to marry her, and been refused by him; how must she have assigned the breach ?— Why— "That he being requested by her to marry her, he had refused to do so." But what obligation was he under, "to mar- ry her?" Or where was the breach of his covenant? This covenant says no such thing, as "that he would marry her." Tender and refusal must apply to the thing stipulated: but he has not stipulated "that he would mar- ry her." . As to mutuality of contract— The deed does not import that she shall marry him: neither doth her acceptance of it import any such thing. It does not follow from her accepti ance of the deed, that she either understood he meant to bind himself to marry her; ot that she engaged to marry him. Possibly, he might not at all mean to mar- ry her, though he bound himself not to marry any one else. They are two quite different things: one does not follow from the other. This covenant is illegal, and will support no action: and therefore the plaintiff ought to recover nothing upon it. Mr. Justice ASTON concurred, upon both points. As to the quantum of damages — That is ex- pressly stipulated and agreed. He took no- tice of what is said in the case of Edgcomb v. Dee, Vaughan, 101, and applied it to the pres- ent case. As to the great point— he said, he had had doubt: but now he clearly concurred. If this had been a covenant "to marry her," all the consequences which have been men- tioned would have followed. But it is not a covenant "to marry her." The words import no such thing: and the court can not suppose fraud. It is only a covenant to pay a sum of money, in case he shall marry any one else, "any person besides herself." This is in restraint of marriage, and is ille- gal and void. The ease of Baker v. White. 2 Vern. 215. was a bond given by a widow, conditioned to pay the defendant White £100 if she should afterwards marry again: and White, at the same time, gave her a like bond, conditioned to pay the like sum to her executors, if she should not marry asain before she died. She married again, to Baker: and he and she brought their bill, to have her bond deliveired PUBLIC POLICY— DEIiOGATION OF MARRIAGE RELATION. 457 up. And the bond was decreed to be de- livered up, to be cancelled. He observed, that there is a difference between a first and a sec- ond marriage. The restraint of a first mar- riage is contrary to the general policy of the law, the public good, and the interests of society: but the frequent customs of copy- holds intimate that the restraint of a second is not so. Yet there the bond was decreed to be delivered up. We can not make a covenant for the man: and he himself has only covenanted "not to marry any other person, besides tlie plaintiff." Mr. Justice WILLES also concurred. 1st No new trial ought to be had. The di- rection of my Lord Chief Justice was right For here the deed Itself liquidated the certain sum: it was a.scertained and fixed, between the parties themselves; and was therefore the true and proper quantum of the damages. 2d. As to the motion In arrest of Judgment —I should not think it a proper motion, if this was a covenant "to marry her." But this Is only, "not to marry another." The words are plain and manifest: and the intention seems to have been agreeable to then.. The deed was executed in 1757: and the defendant did not marry till 17G7. The plaintiff lay by, and never made a requi.sition to hiui "to luarry her;" but when he married another, she brought her action of covenant. It seems to me, to have been understood be- tween the parties themselves, and even by the plaintiff herself, in the same sense as we understand it now. If so, 'tis a restraint ujyin matrimony, and is illegal, and stronger tlian the case of Wood- house V. Shepley. Lord MANSFIELD— I^t the rule for a new trial be discharged: but the Judgment must be arrested. This rule was drawn up, for the plaintiff to shew cause why the verdict should not be set aside, and a new trial had between the par- ties: and in case the court, upon hearing coun- sel on both sides, should be of opinion to dis- charge the rule, that then the defendant should be at liberty to move In arrest of Judgment Memorandnm— This judgment was alErmed la the ejcheqaer-chamber, on 26th May, 1770. 458 ILLEGALITY OF OBJECT. ,?^ HERRESHOFF v. BOUTINEAU. Supreme Court of Rhode Island. April 14, 1S90. (19 Atl. 712, 17 R. I. 3.) ^^ ^f On demurrer to bill. Bill for injunction by Julian L. Herreshoff against A. I3outineau. Defendant demurs to the bill. Amaaa JI. Eaton, for complainant. Al- bert A. Baker, for respondent. STINESS, J. The complainant, director of a school of languages in Providence, era- ployed the respondent to teach French from January 7, 1889, to July 1, 1889. The con- tract, in writing, provided that the respon- dent would nut, during th e year after the end of his service, "teach the"FrencTi or German language, or any part thereof, nor aid to teacii them, nor advertise to teach them, nor be in any way connected with any person or persons or institutions that teach them, in the said state of Rhode Island." The re- spondent's service ended July 1, 1889. after which time he gave lessons in French, in Providence. This suit js brought to restrain him from so doing wilhin the time covered by this contract. The respondent demurs to Trie" bill, contending— i^trs^, that the con- tract is void on the ground of public policy, because it imposed a ge^ieraL, restraint throughout the state; and, secondly, because it is unreasonable. Is the contract void? For a long time, beginning with the Year Book-^, contracts limiting the exercise of one's ordinary trade or calling met with much dis- favor in the courts. Any limitation what- ever was considered, in the first repoi'ted case. (Y. B. fol. 5, 2 Hen. V. p. 26,) so far contrary to law that a plaintilf suing thereon was sworn at by the judge, and threatened with a fine. But it was soon found that, to some extent at least, such contracts help, rather than harm, both public interests and private welfaie; that they are necessary to trade itself, in order to secure the sale, at fair value, of an established business, by pro- tecting it against the immediate competition of the seller; also to enable one to learn a trade or to get employment from another, free from the risk of having the knowledge and infiuence thus gained used to the em- ployer's damage; to^ encourage investment in business enterprises, under reasonable safe- guards; and for other equally evident rea- sons. Accordingly, exceptions to the early doctrine were recognized from time to time, until the leading case of Mitchel v. lleynolds, 1 P. Wras. 181, when the court established the rule that a contract in restraint of trade, upon consideration which shows it was rea- sonable for the parties to enter into it, is good, "that wherever a sufficient considera- tion appears to mike it a proper and an use- ful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained; but with this constant di- ver-^ity, viz., where the restraint is general not to exercise a trade throughout the king- dom, and where it is limited to a particular place; for the former of these must be void, being of no benefit to either party, and only oppressive." It is to be observed tliat tlie contract in this case was limited in time to five years, the term of the lease of a bake- house, which the plaintiff had bought of the defendant, and also limited in space to the parish of St. Andrew's, Holborn. The case, therefore, did not call for decision upon a contract running throughout the kingdom. Nevertheless it has since been commonly as- sumed, as the settled rule of law, that such a restraint is contrary to public policy, and void. The principle upon which this rule is put is that the public, have the right to de- mand that every person should carry on his trade freelj, both for the prevention of mon- opoTy'and of unprofitable idleness. Theargu- ni^nt is.Tf the restraint is general through- out the realm, the public interest is interfered with, since the party restrained can only re- sort to his trade for a livelihood by expatria- tion. I^it, if the restraint be local and par- tial, the party and the public may still have theLenelit ot his services in his own land, in some other place. While this distinction has" frequently been recognized, the cases in which it has had the sanction of a decision have been few. In Rousillon v. Rousillon, 14 Ch. Div. 351, Fry, J., mentions only two, and these, he says, seem to have been de- cided upon the ground of unreasonableness, rather than upon the ground of universality. In other words, the universality was held to be unreasonable. This case, following Whit- aker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurl. & N. 189; and Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345, — expressly holds that there is no absolute rule that a covenant in restraint of trade is void, if it is unlimited in regard to space. The respondent urges that Rousillon v. Rousillon has been overruled by the recent case of Davies v. Davies, 36 Ch. Div. 359; but we do not think this is so. While Cot- ton, L. J., showing great willingness, if not anxiety, to overrule it, based his opinion upon the ground that the restriction was void, be- cause unlimited in space, Bowen, L. J., did not put his decision on that ground, and Fry, L. J., adhered to his opinion in Rousil- lon V. Rousillon. That Davies v. Davies was not rieceived in England as overruling the last-named case, see note to this case in Law Quarterly Review, vol. 4, p. 240. In view of these cases, we do not think it is now the rule in England that restraint throughout the kingdom is absolutely void. In this country the cases have been quite similar to those in England. In the recent case of Match Co. v. Itocber, 106 N. Y. 473, 13 N. E. Rep. 419, Andrews, J., says: "It is worthy of notice that most, if not all, the English cases which assert the doctrine that all contracts in general restraint of trade are void, were cases where the contract before PUBLIC POLICY— RESTRAINT OF TRADE 459 thft f oiirt wiiH liini teJ ur PfiiLi al. Tlie same is generally true of the American cases." In tliat case tlie defeiidanL covenanted, for the period of 99 ^ears, not to engapfc in the man- ufacture or sale of friction matchee, wiihin any of the slates or territories of the United States, except Nevada and Montana. Tlie com[)Ia;iiant soui^ht to restrain a breach of Wiat covenant in New York, the respondent clainiing that tlie covenant, being general as to New Yoik, was void. But the court de- clared it to be valid, in a strong and thorough opinion, showing tlie history of litigation, and the tendency of recent judicial decisions upon this subject. Taking this case in connec- tion witli Navigation Co. v.Winsor, 20 Wall. 64, we think it cannot be said here, any more than in England, tiiat a restraint is absolutely void, upon grounds of public policy, because it extends througliout a state. Public policy is a variable test. In the days of the early Englisii cases, one who could not work at his trade could hardly work at all. The avenues to occupation were not as open nor as nu- merous as now, and one rarely got out of the path he started in. Contracting not to follow one's trade was about the same as contract- ing to be idle, or to go abroad for employ- ment. But this is not so now. It is an every-day occurrence to see men busy and prosperous in other pursuits than those to which they were trained in youth, as well as to see them change places and occupations without depriving themselves of the means of livelihood, or the state of the benelit of tlieir industry. It would therefore be absurd, in the light of this common experience now, to say that a man shuts himself up to idle- ness or to expatriation, and thus injures the public, when he agrees, for a sufficient con- sideration, not to follow some one calling within the limits of a particular state. There is no expatriation in moving from one state to another, and from such removals a state would be likely to gain as many as it would lose. We_jlQ__ not think p ublic poUcy-de- ma nds aJTagree ment" of the kind in question to be declared voicT,' aTT^'we do not think such a rule is eslabllslicd upon authority. Wo therefore hold that the agreement set out in the bill is not void simply because it runs throughout the state. Is the contract unreasonable? Courts should be slow to set aside as unreasonable a restriction which has formed a part of the consideration of a contract; yet, when it is a restriction upon individual and common rights, \\:iu&ti^auiy_ ojipresses one party >vjtli- out lii-noilting the other, all courts agree that it sliould nut be enforced. In determining the rcasoiKibleuess of a contract, regard must be hail to the uature_aud_citcumstance3 of the transaction. For example, if one has soKTllie good-will of a mercantile enterprise, receiving pay for it, upon an agreement not to engage in the same business in the same state, for a certain time, such a stipulation would stand upon quite a different footing from the similar stipulation of a mere servant in ;jn ordinary local business.. In many un- dertakings, with modern methods of adver- tising and facilities for ordering by t legraph or mail, and sending goods i^y railroad or ex- press, it would matter little whether one was located at Providence or Boston or some other place. In such cases a restriction embracing the state, or even a larger territory, coiiM not be said on that a-count to be unreason- aide; for without it the seller might imme- diately destroy the value of wliat he sold and was paid for. B ut it is unreasonable to ask courts to en forcelTgreat er restri ction than Is needed ! So Tt lias been uniformly held that restrictions which go too far are void. As was said in tlie note of the Law Quarterly Review, above cited: "Covenantees desiring the maximum of jirotection have, no doubt, a diflicult task. When they fail, it is com- monly because, like the dog in the fable, they grasp at too much, and so lose all." Besides the matter of protection, the hard- ship of the restriction _upon_tlie_paxl#_iiiiiLLliR public should also be con sider ed. In the present case, we think the restriction is un- reasonable. Not as a rule of l aw b ecause i t extends throughout the state, but because it extends beyond any apparently necessary jjrotection which the complainant migljt r^-. sonably require, and thus, without benefiting^ liiin, it oppresses the respondent, and de- prives people in other places oFtlie chance which miglit be offered them to learn the French and German languages of the respond- ent. The complainant urges that he has established a school in Providence, at great expense, to teach languages by a new method, where scholars come from all parts of the state, and that by reason of the small extent of the state, and the ease of passing to and fro within it, such a restriction is reasonable and necessary to keep teachers from setting up similar schools, and enticing away his scholars. All this may be true with refer- ence to Providence and its vicinity. But while, as is averred, many pupils from all parts of the state may come to Providence, as a center, for the same reason few would goto other places. For exam[)le, a school in West- erly or Newport would not be likely to draw scholars from Providence, or places from which Providence is more easily reached. In- deed, the complainant says he otTered. after the contract was made, and now olTers, to allow the respondent to teach in Newport; thereby admitting that the restriction is greater than the necessity. The people of Newport, Wes- terly, and other places have the right to pro- vide for education in languages without coming to Prt)viilence. It is hard to believe, and the bill does not aver, that losing the tew, if any, from some such place who might leave the complainant, if the respondent were to teach there, would seriously atTect the com- plainant's school. Teaching in Providence, or in any place from which the complainant receives a considerable number of pupils, might affect it. and a re-striction limited ac- cordingly might be reasonable; but we think 461 ILLEGALITY OF OBJECT. it is unreasonable to go further. The com- plainant bought nothing of the respondent whose value he now seeks to destroy. He liired the latter as a teacher at no more than fair wages. He needs and has the right only to be secured against injury to his school, from teachers who may entice away Ids scholars, after leaving his employ. The con- tract clearly goes beyond this. The demur- rer must be sustained. PUBLIC rOLICY— RESTRAINT OF TRADE. 461 DIAMOND MATCH CO. ▼. ROEBEH.1 4j? ^< (13 N. E. 419, 106 N. Y. 473.) ^^^ ^ >, ^jDourt of Appeals of New York. October 4, ^/-Tj 1887. ^ L< /'^''Kobt. Sowoll, for appellant Noah Davis, for respondent. ANDREWS, J. Two questions are pre- sented—First, whether the covenaut of the defendant contained in the bill of sale exe- cuted by him to the Swift & Courtney & Beecher Company on the twenty-seventh day of August, 1880, that lie shall and will not at any time or times within D'J years, directly or indirectly engage in the manufacture or sale of friction matches (excepting in the ca- pacity of agent or employe of the said Swift & Courtney «& Beecher (Company) within any of the several states of the United States of America, or In the territories thereof, or within the District of Columbia, excepting and reserving, however, the right to manu- facture and sell friction matches in the state of Nevad a, and in the territoi-y of ^I on tana, is- void as being a covenant in i:e&tralnt~bf trade; and, second, as to the right of the |)laintig. under the s pecia l circumstances, to tlie efj nital ;)le remedy bv injunction to^ en- force the pej fo''"^""'^'^ pf tho covenant. There is no real controversy as to the es- sential facts, llie consideration of the cove- nant was the purchase by the Swift «& Court- ney & Beecher Company, a Connecticut cor- poration, of the manufactory No. 528 West Fiftieth street, in the city of New Yorli, be- longing to the defendant, in which he had, for several years prior to entering into the covenant, carried on the business of manu- facturing friction matches, and of the stock and materials on hand, together with the trade, trade-marks, and good-will of the busi- . uess, for the aggregate stun (excluding a mortgage of $5,000 on the property assumed by the company) of $46,724.05, of which $13,- 000 was the price of the real estate. By the preliminary agreement of July 27, 1880, $28,- 000 of the purchase price was to be paid in the stock of the Swnft & Courtney & Beecher Company. This was modified when the prop- erty was transferred, August 27, 1880, by giv- ing to the defendant the option to receive the $28,000 in the notes of the company or in its stock, the option to be exercised on or before January 1, 18S1. The remainder of the pur- chase price, $18,724.05, was paid down In cash, and subsequently, March 1, ISSl, the defendant accepted from the plaintiff, the Diamond Match Company, in full payment of the $28,000, the sum of $8,000 In cash and notes, and $20,000 in the stock of the plain- tiff; the plaintiff company having prior to said payment purchased the property of the Swift & Courtney & Beecher Company, and become the assignee of the defendant's cove- » Irrelevant parts omitted. nant. It is admitted by the pleadings that In August, 1880, (when the covenant In question was made,) the Swift & Courtney & Beecher Company' carried on the business of manu facturiug friction matches in the states of (Donnecticut Delaware, and Illinois, and of selling the matches which it manufactured "in the several stales and territories of the United States, and in the District of Colum- bia;" and the complaint alleges and the de- fendant in his answer admits that he was at the same time also engaged In the manufac- ture of friction matches in the city of New York, and in selling tliem in the same terri- tory. Tlie proof tends to support the admis- sion In the pleadings. It was shown that the defendant employed traveling salesmen, and that his matches were found in the hands of dealers In 10 states. The Swift & Courtney & Beecher Company also sent their matches throu£hout_jLke_ country wherever they could find a market. When the bargain was consummated, on tlie twenty-seventh of August, 1880, the defendant entered into the employment of the Swift & Courtney & Beecher Company, and remained in its em- ployment until January, 1881, at a salary of $1,500 a year. He then entered into the em- ployment of the plaintiff, and remained with it during the year 1881, at a salary of $2..jOO a year, and from January 1, 1882, at a sal- ary of $3,(}00 a year, when, a disagreement arising as to the salary he should thereafter receive, the plaintiff declining to pay a sal- ary of more than $2,500 a year, the defend- ant voluntarily left its service. Subsequent- ly he became superintendent of a rival match manufacturing company In New Jer- sey, at a salary of $5,(X)0, and he also opened a store in New York for the sale of matches other than those manufactured by the plain- tiff. --^ The contention by the defendant that the plaintiff has no equitable remedy to enforce the covenant, rests mainly on the fact that contemporaneously with the executios of the covenant of August 27, 18S0, the defendant also executed to the Swift & Courtney & Beecher Company a bond In the penalty of $15,000, conditioned to pay that sum to the company as liquidated damages in ca.se of a breach of his covenant. The defendant for his main defense relies upon the ancient doctrine of the common law, first definitely declared, so far as I can dis- cover, by Chief Justice Parker (Lord Mac- clesfield) in the leading case of Mitchel v. Reynolds, 1 P. Wms. ISl, and which has been repeated many times by judges In England and America, that a bond in general restraint of trade is void. There are several decisions In the English courts of an earlier date, in which the question of the validity of con- tracts restraining the obligor from pursuing his occupation within a particular locality was considered. The cases are chronologically ar- ranged and stated by Mr. Parsons in his work on Contracts (volume 2, p. 748, note.) The ear- 462 ILLEGALITY OF OBJECT. liest reported case, decided in tlie time of Henry Y., was a suit on a bond given by the defendant, a dyer, not to use bis craft within a certain city for the space of half a year. The judge before whom the case came indignantly denounced the plaintiff for procuring such a contract, and tm-ned him out of court. This was followed by cases arising on contracts of a similar character, restraining the obli- gors from pursuing their trade within a cer- tain place for a certain time, which appar- ently presented the same question which had been decided in the dyer's case, but the courts sustained the contracts, and gave judgment for the plaintiffs; and before the case of Mitchel v. ReyBolds it had become settled that an obligation of this character, limited as to time and space, if reasonable under the circumstance, and supported by a good consideration, was valid. The case in the Year Books went against aU contracts in restraint of trade, whether limited or gen- eral. The other cases prior to Mitchel v. Reynolds sustained contracts for a particular restraint, ujpon special grounds, and by in- ference decided against the validity of gen- eral restraints. The case of Mitchel v. Reynolds was a case of partial restraint, and the contract was sustained. It is worthy cf notice that most, if not all, the English cases which assert the doctrine that all contracts in general restraint of trade are void, were cases whe re the contract before the court was limi'Eed' or paftlaT The same is general- ly^tni^or'nierSmeflcan cases. The principal cases in this state are of that character, and in all of them the particular contract before the court was sustained. Nobles v. Bates, 7 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Dunlop v. Gregory, 10 N. Y. 241. In Alger V. Thacher, 19 Pick. 51, the case was one of general restraint, and the court, con- struing the rule as inflexible that all con- tracts in general restraint of trade are void, gave judgment for the defendant. In Mit- chel V. Reynolds the court, in assigning the reason for the distinction between a contract for the general restraint of trade and one limited to a particular place, says: "for the former of these must be void, being of no benefit to either partj% and only oppressive;" and later on, "because in a great many in- stances they can be of no use to the obligee, which holds in all cases of general restraint throughout England; for what does it signify to a tradesman in London what another does in Newcastle, and surely it would be unrea- sonable to fix a certain loss on one side without any benefit to the other." He refers to other reasons, viz., the mischief which may arise (1) to the party by the loss by the obligor of his livelihood and the substance of his family, and (2) to the public by de- priving it of a useful member, and by en- abling corporations to gain control of the trade of the kingdom. It is quite obvious that some of these reasons are much less forcible now than when Mitchel v. Reynolds was decided. Steam and electricity have for the purposes of trade and commerce almost aniiihilated distance, and the whole world is now a mart for the distribution of the prod- ucts of industry. The great diffusion of wealth, and the restless activity of mankind striving to better their condition, have great- ly enlarged the field of human enterprise, and created a vast number of new industries, which gives scope to ingenuity and employ- ment for capital and labor. The laws no longer favor the granting of exclusive priv- ileges, and to a great extent business corpo- rations are practically partnerships, and may be organized by any persons who desire to unite their capital or skill in business, leav- ing a free field to all others who desire for the same or similar purposes to clothe them- selves with a corporate character. The ten- dency of recent adjudications is marked in the direction of relaxing the rigor of the doc- trine that all contracts in general restraint of trade are void, irrespective of special cir- cumstances. Indeed, it has of late been de- nied that a hard and fast rule of that kind has ever been the law of England. Rousil- lon V. Rousillon, 14 Ch. Div. 351. The law has for centuries permitted contracts in par- tial restraint of trade, when reasonable; and in Horner v. Graves, 7 Bing. 735, Chief Jus- tice Tindal considered a true test to be "whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public." When the restraint is general, but at the same time is co-extensive only j I with the interest to be protected, and with 1 the benefit meant to be conferred, there \ seems to be no good reason why, as betweei* |the parties, the contract is not as reasonable 1 jas when the mterest is partial, and there is ^ la corresponding partial restraint. And is there any real public interest which neces- sarily condemns the one, and not the other? It is an encouragement to industry and to enterprise in building up a trade, that a man shall be allowed to sell the good-will of the business and the fruits of his industry up- on the best terms he can obtain. If his busi- ness extends over a continent, does public policy forbid his accompanying the sale with a stipulation for restraint co-extensive with the business which he sells? If such a con- tract is permitted, is the seller any more likely to become a burden on the public than a man who, having built up a local trade only sells it, binding himself not to can-y it on in the locality? Are the opportunities for employment and for the exercise of useful talents so shut up and hemmed in that the public is likely to lose a useful member of society in the one case, and not in the other? Indeed, what public policy requires is often a vague and ditticult inquiry. It is clear that public policy and the interests of society favor the utmost freedom of contract, with- in the law, and require that business trans- PUBLIC POLICY— RESTRAINT OF TRADE. 463 actions should not be trammeled by unnec- essaiy restrictions. "If," said Sir George Jessell in Prinliug Co. v. Sampson, L. K. 19 Eq. 402, "thero Is one thin;? more than any other which public policy requires, it is that men of full age and competent understand- ing shall have the utmust liberty of con- tracting, and that contracts, when entered in- to freely and ^oluntarily, shall be held good, and shall be enforced by courts of justice." It has sometimes been suggested that the doctrine that contracts In general restraint of trade are void, is founded Ln part upon the policy of preventing monopolies, which are op- posed to the liberty of the subject, and the granting of which by the king under claim of roj'al prerogative led to conflicts memorable in English history. But covenants of the cliaracter of the one now In question operate simply to provont tho pnvcnnntor from en- ,L;:iL;iii.L,' in the liiisiiuss which lie soils,. SO as to^pruliH't IIk' iiiircti.'isir in the enjoyment of what lio h;is iHiivii.i-, ,1. To the extent that the contruct piwunts the vendor from carry- ing on the particular trade, it deprives the community of any benefit it might derive from his entering into competition. But the business is open to all others, and there is little danger that the public will suffer harm from lack of persons to engage in a profitable industry. Such contracts do not create mo- nopolies. T ixe^- coufer no special or exclu- sive privileg e. If contracts in general restraint of trade, where the trade is general, are void as tending to monopolies, contracts In partial restraint, where the trade is local, are sub-^ ject to the same objection, because they de- prive the local community of the services of the covenantor in the particular trade or call- ing, and prevent his becoming a competitor with the covenantee. We are not aware of any rule of law which makes the motive of the covenantee the test of the validity of such a contract. On the contrarj', we suppose a party may legally purchase the trade and busi- ness of another for the very purpose of pre- venting competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties. Combinations between producers to limit production, and to enhance prices, are or may be unlawful, but they stand on a different footing. We cite some of the cases showing the ten- dency of recent judicial opinion on the gener- al subject: Whittaker v. Howe, 3 Beav. 3S3; Jones v. Lees, 1 Hurl. & N. ISO; Rousillon v. Rousillon, supra; Leather Co. v. Lorsont, L. R. 9 Eq. 345; Collins v. Locke, 4 App. Cas. G74; Steam Go. v. Winsor, 20 Wall. 04; Morse, etc., Co. v. Morse. 103 Mass. 73. In Whittaker v. Howe, a contract made by a solicitor not to practice as a solicitor "in any part of Great Britain," was held valid. In Rousillon V. Rousillon a genenil contract not to engage in the sale of champagne, without limit as to space, was enforced as being under tlie circumstances a reasonable contract In Jones V. Lees, a covenant by the defendant, a licensee under a patent, that he would not during the license make or sell any slubbing machines without the Invention of the plain- tiff applied to them, was held valid. Bram- well, J., said: "It is objected that the re- straint extends to all England, but so does the privilege." In Steam Co. v. Win.sor the court enforced a covenant by the defendant made on the purchase of a steam-ship, that it should not be run or employed in the freight or pas.seuger business upon any waters in the state of California for the period of 10 years. In the prescLt state of the authorities, we think it cannot be .said that the early doctrine that contracts in general restraint of trade are void, without regard to circumstances, has been abrogated. But It Is manifest that it has been much weakened, and that the foun- dation upon which it was originally placed has, to a considerable extent at l&ast, by the change of circumstances, been removed. The covenant In the present_case Is paxtiai, antf^not general. It is practically unlimit- ed as to time, but this under the authorities is not an objection, if the contract is oth- erwise good. Ward v. Byrne, 5 Mees. & W. 548; Mumford v. Gething, 7 C. B. «N. S.) 317. It Is limited as to space since it excepts the state of Nevada and the territory of Montanii from its operation, and therefore is a partial, and not a general, restraint, unless, as claim- ed by the defendant, the fact that the cove- nant applies to the whole of the state of New York constitutes a general restraint within the authorities. In Chappel v. Brockway, su- pra, Bronson, J., in stating the general doc- trine as to contracts in restraint of trade, re- marked that "contracts which go to the total restraint of trade, as that a man wiU not pur- sue his occupation anywhere in the state, are void." The contract under consideration in that case was one by which the defendant agreed not to run or be interested in a line of packet-boats on the canal between Roches- ter and Buffalo. The attention of the court was not called to the pomt whether a contract was partial, which related to a business ex- tending over the whole country, and which re- strained the carrying on of business Ln the state of New Yorlc. but excepted other states from its operation. The remark rdied upon was obiter, and in reason cannot be consid- ered a decision upon the point suggested. We are of the opinion that the contention of the defendant is not sound in principle, and should not be sustained. The boundaries of the states are not those of trade and com- merce, and business is restrained within no such limit. The country as a whole is that of which we are citizens, and our duty and allegiance are due both to the state and na- tion. Nor is it true as a general rule that a business e.'^tablished here cannot extend be- yond the state, or that it may not be succes.s- fully established outside of the state. There are trades and employments which from their nature are localized, but this Is not true of 464 ILLEGALITY OF OBJECT. manufaclTiring industries in general. We are unwilling to say tliat the doctrine as to what is a general restraint of trade depends upon state lines, and we cannot say that the ex- ception of Nevada and Montana was colorable merely. The rule itself is arbitrary, and we are not disposed to put such construction up- on this contract as will make it a contract in general restraint of trade, when upon its fact it is only partial. The case of Steam Co. v. "Winsor, supra, supports the view that a re- straint is not necessarily general which em- braces an entire state. In this case the de- fendant entered Into the covenant as a con- sideration in part of the purchase of his prop- ertj- by the Swift «& Courtney & Beecher Com- pany, presumably because he considered it for his advantage to make the sale. He realized a large sum in money, and on the completion of the transaction became interested as a stocliholder in the very business which he had sold. We are of opinion that the covenant, .being supported by a good considev.itiun, and \constituting a partial and not a geueral i-e- ktraint. and being, in view of the circumstan- Ices disclosed, reasonable, la valid and not void. • •••«•• PUBLIC POLICY— RESTRAINT OF TRADE Ik CARLL Y. SNYDER et aL A^ 465 ^ t'^^ (-0 Atl 977.) Court of Chancery of New Jeracf. July 13, 1893. Suit by Charles W. Carll against John F. Snyder and others for injunction. Barton & Dawes, for complainant. Wil- liam 'SI. Lanniujj, for defendants. BIRD, V. C. On the filing of this bill, an order was advised, directing the defendants to show cause why an injunction should not be granted restraining them from engaging in and carrying on, within the limits of the city of Trenton, a certain business called the "galvanized iron cornice, tin, and sheet- iron business." This application rests upon an agreement, in writing, entered into be- tween the complainant and the defendants, in the month of January, 1S92, in and by which, for th e consideration of $6^27 5. paid to them^by tlTe complainant, the defendants agreed to sell to him all their interest in the business in which the complainant and the defendants were then engaged as partners. They als o agreed not to engage in or carr y o'n su gE^usiness witnin the l iinits_^f jaid cTEy! Such business included ~th e~said gal- vafiized iron cornice, tin, and sheet-iron busi- ness. The granting of the injunction is re- sisted by the defendants upon two grounds: First, because the proofs contained in the affidavit annexedt o the bill are_sufficient; and, second. ~that thenrestral^t exprcsied^in the stipulation is unlawful, becaifse unrea- sonabfeT'siffgejtjrs'ihaefl'nlte' as to ti,me._^ I am salisfiod thaf tlie'proof is sufficiently clear and definite to justify the court in awarding a perpetual injunction upon final hearing, in case It should stand, as it now does, unimpeached. I am equally well satis- fied that the insistmcMit that the restraint is. indefinite as to time, and therefore unrea- sonable, ought not to prevail. I think a care- ful study of the case of Mitchel v. Reynolds, reported in 1 Smith. Load. Cas. (9th Ed.) GO-i et seq., with the various annotations both by the English and American editors, will satisfy the mind as to the principle upon which contracts of this nature, not only may well be, but really ought to be, supported, when indefinite as to time. ..^ he pu rchaser of such good wjH m ay fairly be"s upiJO!Jt'd to nm; chaser"nQt o' niY ^»^ ^'^ "^" "immediate use or benefit, but for the iia^ of hi s r^(i^rsonaI represents ti VPS. I n the same sense that he purchases personal property or real estate. I can see no just reason for his not being able in the law to make such an investment which shall pass to his assigns, executors, or administrators. It cannot be said, when it is limited to a particular district, that this in any manner interferes with sound public policy. It would not be a violation of the rule which required such contracts to be in harmony with the interests of the conimunl- HOPK. 8BU CAS. CONT. — 30 ty at large in case the stipulation were to be that the covenantee should not carry on the trade in qutstion for 20 or DO years; and, if not for t! at perioil of time, then certaijily it would not be If the covenant extended to a lifetime. With this in mind, when the ob- ject of the prohibition put upon such con- tracts, in view of a sound public policy, is considered, it will be still more apparent that this contract ought to be upheld. Sound public policy requires that every individual shall be employed. The coninnmily is en- titled to his honest toil, whether manual, mechanical, or purely intellectual. This be- ing so, and such policy upholding contracts for a definite period of time. It is not to be presumed that the covenantee, in Any such case, will spend the time, which the law re- gards, (supposing that there must be a period limited in the contract,) In idleness, or in in- difference to the demands of such public policy, waiting the time when the period fix- ed by the contract shall have expired, in or- der that he may engage once more in the employment which he had agreed to aban- don. In such matters the public welfare, which the law regards, is an essential ele- ment of consideration; but the interest of the individual in his own welfare is infinitely more efficacious and potential in securing the public good, although that may not be in his mind. He who has energy and in- tegrity enough to establish a business which is worthy of the name, and for which others will bid a fair price, will not wait for the protection of the paternal hand to make his footprints in other quarters. In the follow- ing eases there was no limit as to time, and it will be observed that in many of them resistance was made to their enforcement on this account, but without success: Richard- son V. Peacock, 26 N. J. Eq. 40, 2S N. J. Eq. 151, and 33 N. J. Eq. 597; Hitchcock v. Coker, G Adol. & E. 439; Hastings v. WhiUey. 2 Exch. Gil; MaUan v. May, 11 Mees. & W. 653; Bowser v. Bliss, 7 Blackf. 344; Pierce V. Fuller, 8 ISIass. 223; Palmer v. Stebbins, 3 Pick. 18'^; Match Co. v. Roeber, lOG N. Y. 473, 13 N. E. 419, 423. Counsel for defendants urged that this was not a case for a preliminary injunction, since the right of the complainant had not been established at law. I have given this branch of the case not a little attention. It scorns to me that. ij^a4)lain_brcac]j^nf rnntrniit-wmi o ver jnstifv _,iL-p]:i.^li minar>' injunction, this is such. The rights of the parties are thorough^ ly well defined by their agreement While they might be more securely fixed by a judg- ment at law, they could not be more certain- ly defined,— more securely fixed by a judg- ment at law because that is final, but that could only rest upon the undisputed evidence upon which this court is called upon to pro- nounce its judgment preliminarily. A pre- liminary injunction was awardeil In the case of Richardson v. Peacock, supra, and, al- 466 ILLEGALITY OF OBJECT. though that case went to the court of errors and appeals, the action of this court in that behalf was not questioned. 33 N. J. Eq., supra; Match Co. v. Roeber, supra. I think the order to show cavise shoiild be made ab- solute. PUBLIC POLICY— RESTRAINT OF TRADE. 467 (Jh*^ TODE ot al. V. GKOSS. 3 / ^ (28 N. E. Ai\'.K IL'T X. V. -ISO.) CJourt of Appeals of New York, Second Divi- sion. Oct. 6, 1891. Appeal by dek'iidant from a judgment of tlie K^neral term of tlio HUpivnie lourt In the second judicial dejjartiiieut, aflinii- ing a judgment entered ui)on the decisi(ju of the court after a trial without a jury. Allinned. Action for breach of covenant to recov- er the sum of :jpr),000 aw Ktipnlated dani- agos. On the 15th of October, 1SN4, the de- fendant owned a clieetjo factory KJtiiate in the town of Monroe, Orange county, com- prising two parcels of land, witli the buildings thereon, and a quantity of fixt- ures, machinery, and tools connected therewith. I'or some time prior, with the assistance of her husltand, Conrad Gross, her brother-in-law, August Gross, and her father. John Hoffman, she had been engaged in the business of manufnct- uring cheeses at said factory ls." The use of the word "penalty " under tlie circumstances is not controlling. Baglev v Peddle, 16 N. Y. 4G9; Dakin v. Williams, 17 Wend. 44S, affirmed 22 W'end. 201 ; Wooster v. Kisch, 2G Hun, 61. As there is no other question that requires discussion, the judgment should be athrmed. with costs. All con- cur, except Ruowx J., not silting. J PUBLIC rOLlCY— UNLAWFUL COMBINATIONS— MONOPOLIES, ETC. 469 ' MOEEIS RUN COAL CO. v. BARCLAY / COAL CO. (G8 Pa. St. 173.) Supreme Court of Pt'iinsylvania. March 15, 18 7 L Error to court of couiiuou pleas, Bradford county. U. Mercur and E. Overton, Jr., for plaintiff in error. J. Ui- Witt, for defendant in error. AGNEW, J. This was an action on a bill drawn upon one party in favor of another party to a conti-act between five coal com- panies, for a sum found due in the equaliza- tion of prices under the contract. It raises a question of great importance to the citizens of this state and the state of New York, where the contract was made, and was in part to be executed, to wit, whether the con- tract was illegal, as being contrary to the statute of New York, or at common law, or against public policy. The instrument bears date the 15th day of February, 18GU. The parties are five coal companies, incorporated under the laws of Pennsylvania, to wit, the Fall Brook Coal Company and Morris Run Coal Company, of the Blossburg coal region; and the Barclay Coal Company, Fall Creek Bituminous Coal Company, and Towauda Coal Company, of the Bai'clay coal region. By the agreement, the market for the bituminous coal from these two regions is divided among these parties in certain proportions. A com- mittee of three is appointed to take charge and control of the business of all these com- panies, to decide all questions by a certain vote, and to appoint a general sales agent to be stationed at Watkins, New York. Provi- sion is made for the mining and delivery of coal, their kinds, and for its sale through the agent, subject, however, to this important re- striction, that each party shall, at its own costs and expense, deliver its proportion of the different kinds of coal in the different markets at such times and to such parties as the committee shall from time to time direct. The committee is authorized to adjust the prices of coal In the diffeVeut markets and the rates of freight, and also to enter into such an agreement with the anthracite coal companies as will promote the interest of these parties. Then comes an important pro- vi.siou that the companies may sell their coal themselves, but only to the extent of their proportion, and only at the prices adjusted by the committee. It is also provided that the general sales agent shall direct a suspojision of shipment or deliveries of coal by any party making sales or deliveries beyond its propor- tion, and thereupon such party shall suspend shipments until the committee shall direct a resumption. Detailed reports of the business are to be made by the companies to the gen- eral sales agent at fixed and short Intervals, and settlements are to be made by the com- mittee monthly, prices averaged, and pay- ments made by the companies in excess to those in arrear; and finally, each partj- binds itself not to cause or permit any coal to be shipped or sold otherwise than as the same has been agreed upon, and that all ruh.'.s and regulations by the executive committee in relation to the business shall be faithfully car- ried out. In regard to the relation these companies hold to the public, the field of their uiinlug operations, the markets they supply, the ex- tent of their coal-fields, and the general sup- ply of coal, the distinguished referee, Judge Elwell, finds as follows: "The Barclay and Blossburg coal-mines are the only coal mines furnishing the kind of coal mined and ship- ped by these companies, except the Cumljer- land coal, which latter, in order to reach the same markets, north, would have to be ship- ped by tidewater. There was some of the same kind of coal mined in McKean and Elk counties, in this state, but In quantities so small that it was not considered by these companies as coming into competition with them. The coal of the Blossburg and Bar- clay regions is adapted to mechanical pur- poses and for generating steam. Wherever sold, it comes into competition with anthra- cite coal, and also with the Cumberland coal sent by tidewater to Troy, New York, to which point both kinds of bituminous coal are shipped." During the season of ISGG these companies made sales of coal at Oswego and Buffalo, to parties who shipped to Chicago, Milwaukee, and other Western cities. It there came into competition to some extent with Pittsburgh coal. The latter is used for making gas, but the coal of these companies cannot be used for that purpose. The referee found that the statute of New York is, "if two or more persons shall con- spire," first, "to commit any offence;" sec- ond, "to commit any act injurious to the pub- lic health, to public morals, or to ti-ade or commerce, they shall be deemed guilty of a misdemeanor." The referee found, as his conclusion upon the whole case, that the contract was void by the statute, and void at common law, as against public policy. The restraint of the contract upon trade and its injury to the pub- lic is thus clearly set forth by the referee: "These corporations [he says] represented al- most the entire body of bituminous coal In the northern part of the state. By combina- tion between themselves, they had the power to control the entire market in that district And they did control it by a contract not to ship and sell coal otherwise than as therein providoil. And in order to destroy competi- tion, they provided for an an-angomout with dealers and shippers of anthracite coal. They were thereby prohibited from selling under prices to be fixed by a committee representing each company. And they were obliged to suspend shipments upon notice from an agent that their allotted share of the market had 470 ILLEGALITY OP OBJECT. been forwarded or sold. Instead of regulat- ing the business by the natural laws of ti-ade, to wit, those of demand and supply, these companies entered into a league, by which they could limit the supply below the demand in order to enhance the price. Or if the sup- ply was greater than the demand, they could nevertheless compel the payment of the price arbitrarily fixed by the joint committee. The restraint on the trade in bituminous coal was by this contract as wide and extensive as the market for the article. It already embraced the state of New York, and was intended and no doubt did affect the market in the West- em states. It is expressly stipulated that the parties to this contract shall not be con- sidered as partners. The agreement was not entered into for the purpose of aggregat- ing the capital of the several companies, nor for greater facilities for the transaction of their business, nor for the protection of themselves by a reasonable restraint, as to a limited time and space upon others who might interfere with their business." The plaintiff in error's reply to this vigor- ous statement of the purpose of the contract and its effect upon the public interest, al- leges that its true object was to lessen ex- penses, to advance the quality of the coal, and to deliver it in the markets it was to supply, in the best order, to the consumer. This is denied by the defendant; but it seems to us it is immaterial whether these positions are sustained or not. Admitting their correctness, it does not follow that these advantages redeem the contract from the ob- noxious effects so strikingly presented by the referee. The important fact is that these companies control this immense coal-field; that it is the great source of supply of bitu- minous coal to the state of New York and large territories westward; that by this con- tract they control the price of coal in this ex- tensive market, and make it bring sums it would not command if left to the natural laws of trade; that it concerns an article of prime necessity for many uses; that its oper- ation is general in this large region, and af- fects all who use coal as a fuel; and this is accomplished by a combination of all the companies engaged in this branch of business In the large region where they operate. The combination is wide in scope, general in its Influence, and injurious in effects. These being its features, the contract is against pub- lic policy, illegal, and therefore void. The illegality of contracts affecting public trade appears in the books under many forms. The most frequent Is that of contracts be- tween individuals to restrain one of them from performing a business or employment. The subject was elaborately discussed in the leading case of Mitchel v. Reynolds, 1 P. Wms. 181, to be found also In 1 Smith, Lead. Cas. 172. The distinction is there taken which now marks the current of judicial de- cision everywhere; that a restraint upon a trade or employment which is general, is void, being contrary to public interest, really beneficial to neither party, and oppressive at least to one. "General restraints (says Park- er, J.) are all void, whether by bond, cove- nant or promise, with or without considera- tion, and whether it be of the party's own trade or not;" citing Cro. Jac. ij'JG; 2 Bulst. 130; Allen, G7. To obtain, he says, the sole exercise of any known ti-ade throughout Eng- land, is a complete monopoly, and against the policy of the law. A reason given is "the great abuses these voluntary restraints are liable to, as, for instance, from corporations, who were perpetually laboring for exclusive advantages in trade, and to reduce it into as few hands as possible." In reference to a contract not to trade in any part of Eng- land, it is said, there is something more than a presumption against it, because it never can be useful to any man to restrain another from trading in all places, though it may be to restrain him from trading in some, unless he intends a monopoly, which is a crime. These principles have been sustained in many cases which need not be cited, as most of them will be found in Mr. Smith's note 1o the leading case. The result of those in which particular restraints upon trade have been held to be valid between individuals is, that the restraint must be partial only, the consideration adequate and not colorable, and the restriction reasonable. Upon the last req- uisite, Tindal, C. J., remarks, in Horner v. Graves, 7 Bing. 743: "We do not see how a better test can be applied to the question whether reasonable or not than by consider- ing whether the restraint is such only as to afford a fair protection as to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatsoever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and if oppressive, it is in the eye of the law unreasonable. What is inju- rious to the public interest is void on the ground of public policy." Many cases have been decided as to what is a reasonable restriction and what is not, and is thei*efore void, but two only may be referred to as illustrations. In Mallan v. May, 11 Mees. & W. G.53, a covenant not to practice as a dentist in London, or in any of the places in England or Scotland, where the I)laintiff might have been practicing before the expiration of the term of service with them was held to be reasonable as to the lim- it of London, but unreasonable and void as to the remainder of the restriction. So, In Green v. Price. 13 Mees. & W. 69.5, a cove- nant not to follow the perfumery business in the cities of London and Westminster, or within the distance of GOO miles therefrom, was good as to the cities, and void as to the limit of 600 miles. See, also, Pierce v. Ful- ler, 8 Mass. 223, and Chappel v. Brockway, 21 Wend. 158. An important principle stated In these cases Is that, as to contracts for a rUBLIC I'ULICY— UNLAWFUL CUMBINATIONS— MONOPOLIES, ETC. 471 limited restraint, the courts start witli a pre- Bumptioa that they are Illegal unless shown to have been made upon adequate consideration, and upon cireuinsiaucos both reasonable and useful. This presumption is a necessary con- sequence of the general principle, that the public Interest Is superior to private, and that all restraints on trade are injurious to the public in some degree. The general rule (said Woodward, C. J.) Is that all restraints of trade, If nothing more appear, are bad. Keeler v. Taylor, 3 P. F. Smith, 4aS. That case may be instanced as a strong illustra- tion of the rule as to what is not a reastjna- ble restriction; and the principles I have been stating are recognized in the opinion. Keeler agreed to instruct Taylor in the art of making platform scales, and to employ him in that business at $1.75 per day. Taylor engaged to pay Keeler or his legal representatives $50 for each and every scale he should thereafter make for any other person than Keeler, or which should bo made by imparting liis in- formation to others. This was held to be an unreasonable restriction upon Taylor's labor, and tlierefore void, as in restraint of ti-ade. Testing the present contracts by these prin- ciples, the restrictions laid upon the produc- tion and price of coal cannot be sanctioned as reasonable, in view of their intimate rela- tion to the public interests. I'hc field of oper- ation is too wide, and the influence too gen- eral. The effects produced on the public intei-ests lead to the consideration of another feature of great weight in determining the illegality of the contract, to wit, the combination re- sorted to by these five companies. Singly each might have suspended deliveries and sales of coal to suit its own interests, and might have raised the price, even though this might have been detrimental to the public in- terest. There is a certain fi-oedom which must be allowed to every one in the manage- ment of his own affairs. When competition is left free, individual error or foUy will gen- erally find a correction in the conduct of others. But here is a combination of all the companies operating in the Blossburg and Barclay mining regions, and controlhng their entire productions. They have combined to gether to govern the supply and the price or coal in all the markets from the Hudson to the Mississippi rivers, and from I\^uusyl- vania to the lakes. This combination has a power in its confederated form which no in- dividual action can confer. The public inter- est must succumb to it, for It has left no competition free to correct its baleful in- fluence. When the supply of coal is suspend- ed, the demand for it becomes importunate, and prices must rise. Or if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master, and the tires of the manufacturer, all feel the restraint, while many dependent hands are paralyzed, and himgry mouths are stinted. The influ- ence of a lack of supply or a rise in the price of an article of such prime necessity cannot be measured. It permeates the entire mass of the community, and leaves few of its mem- bers untouched by its withering blight Such a combination is more than a contract; it is an offence. "I take it," said Gib.son, J., "a combination Is criminal whenever the act to be done has a necessary tendency to prejudice tlie pul)lic or oppress individuals, by unjustly subjecting them to the power of the confed- erates, and giving effect to the purpose of the latter, whether of extortion or of mischief." Com. V. Carlisle, Brightly, N. P. 40. In all such combinations, where the purpose is inju- rious or unlawful, the gist of the offence ia the conspiracy. Men can often do by the combination of many what severally no one could accomplish, and even what when done by one would be innocent It was held In Com. V. Eberle, 3 Sorg. & R. 9, that it was an indictable conspiracy for a portion of a Ger- man Lutheran congregation to combine and agree together to prevent another portion of the congregation, by force of arms, from us- ing the English language in the worship of God among the congregation. So a confed- eracy to assist a female infant to escape from her father's control, with a view to marry her against his will, is Indictable as a con- spiracy at common law, while it would have been no criminal offence if one alone had in- duced her to elope with and marry him. Mifflin V. Commonwealth, 5 Watts & S. 4tJl. One man or many may hiss an actor; but if they conspire to do it, they may be punished. Per Gibson, C. J., Hood v. Palm, 8 Pa. St 238; 2 Russ. Crimes, 5G6. And an action for conspiracy to defame will be supported though the words be not actionable if six)ken by one. Hood v. Palm, supra. "Defama- tion by the outcry of numbers," says Gibson, C. J., "is as resistless as defamation by the written act of an individual." And says Coulter, J.: "The concentrated energj- of sev- eral combined wills, operating simultaneou.sly and by concert upon one individual, is dan- gerous even to the cautious and circumspect but when brought to bear upon the unwary and unsa«;pecting, it is fatal." Twitchell v. Com., 9 Pa. St. 211. There is a potency in numbers when combined which the law can- not overlook, where injury Is the consequenca If the conspiracy be to commit a crime or un- lawful act it is easy to determine its indict- able character. It Is more difficult when the act to be done or purpKise to be accomplished Is innocent in Itself. Then the offence takes Its hue from the motives, the means or the consequences. If the motives of the confed- erates be to oppress, the means they use un- lawful, or the consequences to others injuri- ous, their confederation will become a con- spiracy. Instances are given In Com. v. Car- lisle, Brightly, N. P. 40. Among those men- tioned as criminal is a combination of em- ployers to depress the wages of journeymen below what they would be if there were no 47; ILLEGALITY OF OBJECT. resort to axtificial moans; and a combination of the bakers of a town to hold up the article of bread, and by means of the scarcity thus produced to extort an exorbitant price for it The latter instance is precisely parallel with the present case. It is the effect of the act upon the public which gives that case and this its evil aspect as the result of confedera- tion; for any baker might choose to hold up his own bread, or coal operator his coal, rather than to sell at ruling prices; but when he destroys competition by a combination with others, the public can buy of no one. In Rex V. De Berenquetal, 3 Maule &: S. G7, it was held to be a conspiracy to combine to raise the public funds ou a particular day by false rumors. "The purpose itself," said Lord EUenborough, "is mischievous; it strikes at the prices of a valuable commodity in the market, and if it gives a fictitious price by means of false rumors, it is a fraud levelled against the public, for it is against all such as may possibly have anything to do with the funds on that particular day." Every "comer," In the language of the day, whether it be to affect the price of articles of com- merce, such as breadstuffs, or the price of vendible stocks,, when accomplished by con- federation to raise or depress the price and operate on the markets, is a conspiracy. The ruin often spread abroad by these heartless conspiracies is indescribable, frequently filling the land with stp^rvation, poverty and woe. Every association is criminal whose object is to raise or depress the price of labor beyond what it woul'l bring if it were left without artificial aid or stimulus. Rex v. Byerdike, 1 :Maule & S. 179. In the case of such asso- ciations the illegality consists most frequent- ly in the means employed to carry out the ob- ject. To fix a standai-d of pric^^s among men in the same employment, as a fee bill, is not In itself criminal, but may become so when the parties resort to coercion, restraint or pen- alties upon the employed or employers, or, what is worse, to force of arms. If the means be unlawful the combination is indict- able. Cora. V. Hunt, 4 Mete. (Mass.) 111. A conspiracy of journeymen of any trade or handicraft to raise the wages by entering into combination to coerce journeymen and master workmen employed in the same branch of industry to conform to rules adopted by such combination for the purpose of regulating the price of labor, and carrying such rules into effect by overt acts, is indictable as a misde- meanor. 3 Whart. Cr. Law, § 13G6, citing People V. Fisher, 14 Wend. 9. Without multi- plying examples, those are sufficient to illus- trate the true aspect of the case before us, and to show that a combination such as these companies entered into to control the supply and price of the Blossbm'g and Barclay re- gions is illegal, and the contract therefore void. A second question is, whether the bill drawn in this case by the general sales agent on the Barclay Coal Company in favor of the Morris Coal Company to equalize prices up- on a settlement under the contract, is such an independent cause of action as will support the suit When a biU, note or bond is but an instrument to execute an illegal contract, it is tainted by the illegality, and cannot be re- covered. The illegal consideration enters di- rectly into the insti'ument, and is followed up because the law will not permit Itself to be violated by mere indirection. This is the principle mentioned in the cases of Stears v. Lashley, 6 Term R. 61; Swan v. Scott H Serg. & R. 164; Stanton v. Allen, 5 Denio, 434; Fisher v. Bridges, 3 El. & BL 642; Lestapies V. Ingraham, 5 Pa. St 82. In the last case. Gibson, C. J., says: "The solemnity of the security would not preclude an inquiry into the consideration of it had it been illegal;" and in Swan v. Scott, Duncan, J., said of a bond, the consideration of which grew out of an illegal transaction, "there the illegal con- sideration is the sole basis of the bond, and there can be no recovery." In the present case the bill itself refers directly to the equal- ization account, and was given in immediate execution of the contract This being the case, it is distinguishable from Fackney v. Reynous, 4 Burrows, 2065; Petrie v. Hannay, 3 Term R. 418; Warner v. Russell, 1 Bos. & P. 295; Lestapies v. Ingraham, supra; Thom- as V. Bracey, 10 Pa. St 1&4,— cases where the action was not upon the illegal contract, or upon an instrument in execution of it, but was founded upon a new consideration. The distinction is well stated by Judge Washing- ton, in Toler v. Annstrong, 3 Wash. C. C. 297, Fed. Cas. No. 14,078, affirmed in the United States supreme court, 11 Wheat. 258. The present case is free of difficulty, the money represented by the bill arising directly upon the contract to be paid by one party to an- other party to the contract in execution of its terms. The bill itself Ls therefore tainted by the illegality, and no recovery can be had up- on it The judgment is therefore affirmed. "public policy— unlawful combinations— monopolies, etc. 473 CENTRAL SHADE-ROLLER CO. v. CDSH- MAN. (9 N. E. 629, 143 Mass. 353.) Supreme Judicial Court of MassachuBetts, Sullolk. Jan. 11, 1887. Bill in equity for au accouut, and for an injunction to restrain the defendant from violatinj^ an agreement made by him with the plaintiff. Hearing in the supreme court on the demurrer of the defendant, before Devens, J., who sustained the demurrer, and the plaintiff appealed. The facts are stated in the opinion. J. B. Warner, for plaintiff. Moorfield Storey, for respondent. ALLEN, J. The contract which Is sought to be enforced by this bill (and the validity of which is the only question presented by the demurrer and argued by the parties) was made between the plaintiff, of the first part, and three manufacturers, under several pat- ents of certain curtain fixtures linown as "Wood Balance Shade-rollers," of the sec- ond part, in pursuance of an arrangement between the persons forming the party of the second part that the plaintiff corporation should be created for the purpose of becom- ing a party to the combination, was to pre- vent, or rather to regulate, competition be- tween the parties to it in the sale of the par- ticular commodity which they made. This is a lawful purpose, but it is argued that the means employed to carry it out— the creation of the plaintiff corporation and the terms of the contract with it— are against public poli- cy and invalid. The fact that the parties to the combination formed themselves into a corporation of which they were the stock- holders, that they might contract with it, instead of witli each other, and carry out their scheme through its agency, instead of that of a pre-existing person, is obviously im- material, and the only ground upon which it can be argued that the contract is invalid is the restraint it puts upon the parties to it Does the contract impose a restraint as to the manufacture on the sale of balance and shade-rollers wliich is void as against public policy? The contract certainly puts no restraint upon the production of the com- modity to which it relates. It puts no obli- gation upon and offers no inducement to any person to produce less than to the full extent of his capacity. On the contrary, its appar- ent purpose is, by mailing prices more uni- form and regular, to stimulate and increase production. The contract does not restrict the sale of the commodity. It does not look towards withholding a supply from the mar- ket in order to enhance the price, as in Craft V. McConoughy, 79 III. 346, and other cases -cited by the defendant. On the contrary, the contract intends that the parties shall make sales, and gives them full power to do so; the only restrictions being that sales not at retail or for export shall be in the name of the plaintitr, and reported to it, and the ac- counts of them kept by it; and the provision that, when any party shall establish an agen- cy in any city or town for the sale of a roller made exclusively foi» that purpose, no other party shall take orders for the same roller in the same place. To these restrictions, clearly valid, there is added the one which affords an argument for the invalidity of the contract,— the restriction as to price. That restriction is, in substance, that the prices for rollers of the same grade, made by different parties, shall be the same, and shall be, according to a schedule contained in the contract, subject to changes whick may be made by the plaintiff upon recom- mendation of three-fourths of its stockhold- ers. In effect. It is an agreement between three makers of a commodity that for three years they will sell it at a uniform price fixed at the outset, and to be changed only by consent of a majority of them. The agreement does not refer to an article of prime necessity, nor to a staple of commerce, nor to merchandise to be bought and sold in the market, but to a particular curtain fix- ture of the parties' own manufacture. It does not loolc to affecting competition from outside, — the parties have a monopoly by their patents,— but only to restrict competi- tion in price between themselves. Even if such an agreement tends to raise the price of the commodity, it is one which the parties have a right to make. To hold otherwise would be to impair the right of persons to make contracts, and to put a price on the products of their own industry'. But we cannot assume that the purpose and effect of the combination Is to unduly raise the price of the commodity. A natural purpose and a natural effect is to maintain a fair and uniform price, and to prevent the Injurious effects, both to producers and con- sumers, of fluctuating prices caused by un- due competitition. When it appears that the combination is used to the public detriment, a different question will be presented from that now before us. The contract is appar- ently beneficial to the parties to the cuiu- bination, and not necessarily injurious to the public, and we know of no authority or reason for holding it to be invalid as in restraint of ti-ade or against public policy. We have not overlooked other provisions of the con- tract, which were adverted to in the argu- ment, but we do not find anything which ren- ders it invalid, or calls for special consider- ation. In the opinion of a majority of the court, the entry must be, demurrer overruled. ILLEGALITY OF OBJECT. GOOD V. DALAXD. (24 N. E. 15, 121 N. Y. 1.) ■^ Court of Appeals of New York- April 15, 1890. Appeal from supreme court, general term, second department. The case came befure the court on ap- peal from the decision of the general term, (6 N. Y. Supp. 204 J sustaining the trial court in overruling the defendants' demur- rer to the complaint. The demurrer was based upon two grounds: (1) That there was a misjoinder of causes of action; and (21 that the complaint did not state facta sutlicient to constitute a cause of action. The complaint alleged, in substance, that the Tucker & Carter Cordage Company, being a member of the United States Cord- age Manufacturing Association of the City and County of New York, together with other members of said association, autho- rized William S. Daland, as trustee of said association, to make a certain contract with the plaintiff, John Good, which he did. Said contract, which is set out in full, recites that "the members "of said as- sociation, in consideration of Good's agreement to allow them the exclusive use and sale on the western continent of cer- .tain inventions patented by him, and to warrant and protect them therein, agree to pay him one-eighth of one cent per pound on all manilla and sisal fibers worked by them into cords, twine, and rope, and sold by them in the United States, during the time they shall have the exclu- sive use and sale of said inventions; and, further, that "the members of said asso- ciation shall respectively submit to said Good monthly sworn statements of the quantities of such flbers so worked and sold " by them during the preceding month. Daland is then empowered by Good to bring suit in his name, and at his expense, for infringements of said pat- ents; and agrees, on his part, that if said association, (jr any of its n}embers, make default in submitting a monthly sworn statement, or in paying the amount due as provided, he will bring suit against such defaulting member for the collection there- of, and, if he fail to do so, that Good may bring suit in his name, and at his expense. The complaint then alleges that the plain- tiff has performed his agreements; but that the defendant company made and sold large quantities of such goods during the months of March, April, May, June, and July, 1887, of which it neglected to make him any statement ; and that the de- fendant Daland, though requested, neglect- ed to bring suit against said company. Plaintiff asks judgmentthatthe rights and liabilities under the agreement may be de- clared ; that an accounting maybe had against the defendant company of fibers so worked and sold; and for damages against Daland for the amount of the agreed percentage thereon, or for such pc>rtion thereof as he could by due diligence have collected. Calvin Frost, for appellants. Albert C. McDonald, for respondent. PECKHAM.J. Although, perhaps, Da- land was not a necessary party defendant to this action upon the agreement stated in tlie complaint, yet we think he was a proper party. As trustee for the varioua companies represented in the agreement, it was by that instnjment made his duty to bring an action against any defaul'Ling member, and to use all diligence in prose- cuting it. The plaintiff claims that the corporation defendant was a defaulting member, and that it was the duty of Da- land to prosecute it, but that he, upon re- quest to bring an action for that purpose, refused so to do. If the corporation de- fendant were in fact as described in the agreement, a defaulting member, it was the duty of Daland to bring suit against it; and his refusal was a breach of that duty and of his agreement. It is true the agreement provided that, in case Daland failed to bring such suit, the plaintiff might, at his election, bring it in Daland's name, and at his expense. But the plain- tiff was notconfined to bringingan action in Daland's name. He could bring it in his own name, and join Daland as defend- ant, and charge him with costs, because of this breach of duty. In this light, there is no misjoinder of causes of action. No cause of action is stated against Daland for daniagTS in consequence of his failure to bring suit to collect the percentage due from the corporation defendant, when re- quested by the plaintiff. The damages which the plaintiff had sustained by such failure cannot be ascertained from any al- legation in the complaint; nor can it b6 said, as matter of mw arising from tne facts stated, that plaintiff sustained any damage. As there are not facts enough alleged upon which a good cause of action against Daland could be predicated on the ground of his failure to prosecute, it cannot be ui-ged that the two causes of action have been iinproiwrly united. As other grounds for sustaining the de- murrer, the defendants say that the unin- corporated association of which the cor- poration defendant is alleged to be a mem- ber is a partnership, and theagreement al- leged is ultra vires the corporation. It is also stated that the agreement is void as in restraint of trade, and as tending to cre- ate a monopoly. The complaint gives no information as to the character of the asso- ciation known as the "United States Cord- age Manufacturing Association of the City of New York. " There is nothing in that pleading which shows that the associa- tion is a partnership, and no inference to that effect can be drawn from the allega- tions which are therein set forth. All that can be learned from the complaint is that certain corporations have, for some pur- pose which is undiscovered, associated them-selves in some way together under a certain name. This is no allegation either of partnarship, or, indeed, of any illegal action whatever. The agreement which is there set up is one which each member of the association authorized theindividu- al defendant to make, as trustee for the association, with the plaintiff. That agree- ment shows no partnership, but is an agreement that each meml)erof the associ- ation will pay the plaintiff a certain price PUBLIC POLICY— UNLAWFUL COMBINATIONS— MONOPOLIES, ETC. 47: on each pcMind of man ilia and sisal fibers worked by such member and offered for sale. No member is responsible for any- tliinf? but its own worlc; and its liai)ility is based entirely upon the amount wcjrked and offered for sale by itself. There is no community of profits orof losses [)rovided for in the agreement; and no one member has any rif;ht to speak for or to bind any other memberin regard to thesubject-mat- ter of the agreement. We can see nothing of a partnership nature set forth in the complaint. The last objection urged, viz., that the contract set forth in the complaint is in re- straint of trade, cannot be supijcn^led. It appears from thecomplaint that thei)lain- tiff had in vented and patented certain ma- chinery, and parts thereof, for dressing fibers, spinning yarns, and making twines and cordage from manilla and sisal fibers, for wliich he had obtained letters patent from the Uniteil States. He agreed with the defendant Daland, as trustee for and representing the association already re- ferred to, that he would, in North and South America, confine the sale and use of all his methods and macliinery, then or thereafter to be invented and patented, to the members of the association ; who, on tlieir part, covenanted through Daland to pay plaintiff a certain sum on all manilla and sisal fibers worked by them intocords, twine, or rope, and offered forsale and use in theUnited States, and sold or delivered, during the time they should have the sole and exclusive use of the machinery above mentioned, provided they were fully pro- tected in such use by the plaintiff. It is true the members of tlie association do not agree to themselves use this machinery at all ; nor do they agree as to any speciaJ amount of twine or rope which shall by each or all of them be offered forsale; and the practical result is to take the machin- ery out of use, unless these memlDers them- selves use or permit others to use it. This is a peculiarity of a patented article. The owner does not possess his patent upon the condition that he shall make or vend the article patented, or allow others t(j do so for a fair and reasonable compensation. When he has once secured his patent, he may, if he choose, remain absolutely quiet, and not only neglect and refuse to make the patented article, but he may likewise refuse to permit any one else to do so on any terms. If the patent he a valuable one, self-interest may be relied upon as a strong enough motiveto induce the owner either to take himself, or to permit others to take, some steps towards introducing his invention into use. ilow fur it will go depends upon the (jwner; and his right to decide that question is not in the least cir- cumscribed f)y tlie interests of tin,' public in obtaining such machinery or invention, or a right to its use. He may keep such right himself, or make the machint-ry or manufacture the patented article alone, or ho may permit others to share such right with him, or he may allow them an ex- clusive right, and retain none himself. It all follows and is founded ujjon the abso- lute and exclusive right which theownerof the patent has in the article patented. Having such right, he must ijlainiy be per- mitted to sell to another the right itself, or to agree with him that he; will permit none other than such person to use it. That person need not agree to make the patented article, orto sell it. It is a ques- tion solely for the parties interested. This right is necessary, in order that the owner of the patent shall have the largest mea.s- ure of prcjtection under it. Considerations which might obtain if the agreement were In i-egard to other articles cannot be of any weight in the decision of a question arising upon an agreement as to patented articles. If an owner of a patent should choose to refuse to manufacture the article covered by his patent, could any one else claim such right? His simple neglect or refusal to manufacture would stand as a conclusive reason why it was not manu- factured. An owner might sometimes make more money by not manufacturing than by doing so; but of that question he is the sole and absolute judge. There is nothing in this agreement which can be regarded as illegal, within the principles above stated, which are not in the least new or unknown. The plain- tiff probably thought his inventions would prove sufficiently remunerative to him if he sold the exclusive right to use them to the members of this association even though they did not themselves agree to use the same in the process of the manu- facture of cord or twine. His compensa- tion was measured b\' the amount of cord and twine worked, sold, and delivered by these members ; and whether they should use his inventions, or keep them uueni- pl03-ed, was not thereafter a question of interest to him, so long as the agreement remained in force. We think the demur- rers were not well taken. The judgment overruling them should be alTirmed. with .costs, with leave to answer on payment of costs. All concur. i76 4 ILLEGALITY OF OBJECT. i/v<- '^.. -y MORE et al. v. BENNETT et al. (29 N. E. SS8. 140 111. 69.) Supreme Court of Illinois. Jan. IS, 1892. Appeal from appellate court, first dis- trict. Action by R. Wilson More and others against J. L. Bennett and others for dam- ajies for violation of rules of an associa- tion of wliich both parties were members. Judgment sustaining a demurrer to the complaint was atlirmed by the appellate court. Plaintiff appeals. Affirmed. The other facts fully uppear in the fol- lowing statement by BAILEY, J. : This was a suit in assumpsit, brought by R. Wilson More and others, composing the firm of More & Dundas, against J. L. Ben- nett and others, composing th'« firm of Bennett. Edwards &, Pettit, to recover damages resulting from an alleged bi'each of certain rules and by-laws of the Chica- go Law Stenographers' Association, of which both the plaintiffs and defendants are members. To the declaration, which consists of two special counts, a demurrer was sustained, and, the plaintiffs electing to abide bj' their declaration, judgment was rendered in favor of the defendants for costs. Said judgment has been af- firmed bj' the appellate court on appenl, and the present appeal is from said judg- m?nt of affirmance. The first count of the declaration alleges In substance, that the plaintiffs and de- fendants are all stenographers by profes- sion, and have, from the time of its organ- ization, been members of said association, an association formed to promote the interest of its m?mbersby all proper meth- ods, and to establish and maintain rea- sonable, proper, and uniform rates for stenographic work done by the members of said association, and to secure to judges, lawyers, and citizens of Chicago efficient, competent, and reliable law re- porting, at reasonable, proper, and uni- form rates, and to furnish them with the means of obtaining efficient and compe- tent reporters, and to increase the effi- ciency of law reporting in the county of Cook. That, in accordance with its con- stitution and by-laws, said association had adopted a schedule of rates which were and are fair and reasonable, and had for more than 15 years prior to the organ- ization of said association been the estab- lished rates among law stenographers, and had been and are still recognized as reasonable and established rates by judges and members of the legal fraternity, and by law stenographers of the city of Chi- cago, there having been during said time no material variation from said rates among law stenographers, said rates be- ing less than those established in certain other large cities of the United States for the same class of work. Said count fur- ther alleges that, in consideration of like promises and agreements on the part of the plaintiffs, and like payment of the membership fee of $.5 by each of the plain- tiffs to become members of said associa- tion, the defendants promised and agreed with the plaintiffs that they would be bound in their charges for work by the schedule of rates adopted by said associa- tion. That the defendants might cut rates against pei-sons not members of said asso- ciation, provided such cutting was in good faith and the rights of the plaintiffs were respected. That in no case where the de- fendants had anV knowledge of the exist- ence of a contract or reporting arrange- ment between the plaintiffs and any law- yer, corporation, or any other person would they attempt, by underbidding the rate established by said association or other unfair means, to secure such report- ing. That the rates established by said association were as follows: Not less than 20 cents per folio for single copy ; not less tlian 25 cents per folio for two copies; not less than 28 cents per folio for three copies; and the rate of .$10 per day for attendance, with the qualification that, if a reporter was engaged by one of the I)arties to a suit, he or any other reporter, knowing of such engagement, might take the other side of the case for $5 per day; but in no case should the reporter make any offer to any attorney after being informed by such attorney that he had en- gaged a reporter. That while said asso- ciation was in existence, and the plaintiffs and defendants were members thereof, the plaintiffs entered into a contract or re- porting arrangement with the county of Cook, by which said county employed the plaintiffs to report the proceedings and furnish transcripts thereof, as said county should require, in a certain celebrated murder case then pending in the criminal court of Cook county, to-wit, the case of People V. O'SuUivan and others, known as the"Cronin Trial," said employment by said county being on the following terms, to-wit, .flO per day for attendance, and the regular rates for transcripts as established by said association, the plain- tiffs agreeing with said connty to do said work, if the county should demand it, at as low a rateasany reputableand established stenographer or firm of stenographers should in good faith bid for said work. That the plaintiffs entered upon the per- formance of said contract, and were en- gaged in reporting theproceedings at said trial at said regular rates, yet the defend- ants, well knowing the premises, and the aforesaid contract or reporting arrange- ment between the plaintiffs and said coun- ty, and after the plaintiffs had been en- gaged on said case for, to-wit, seven weeks, and ata time when defendants well knew that the plaintiff had performed the most unprofitable part of said contract, and not regarding their said promise so made to the plaintiffs, did not respect the rights of the plaintiffs and the schedule rates so adopted by said association, and the fact that they knew that there was a reporting arrangement or contract be- tween the plaintiffs and said county, but solicited said county, and endeavored to secure from said county, by underbidding and other unfair means, employment as law stenographers to report and fnrnish transcripts of the proceedings at said trial, and made a certain t>id to said county, by which thrty to indulge in the contrary, he 1 Davirlson v. Graham, 2 Ohio St. LSI; Gra- ham V. Davis, 4 Ohio St. 362: Swindler v. Hil- liard, 2 Ilich. 286; Baker v. Brinson, 9 Rich. 201; Steele v. Townsend, 37 Ala. 247. rUBLIC rOLICY— LIMITING LIAIULITY FOIl NEGLIGENCE. 4S7 socks to put off the essential duties of his em- ployment. And to assert that he may do so seems almost a contradiction in tenns. Now, to what avail does the law attach these essential duties to the employment of the common carrier, if they may be waived in respect to his agents and servants, espe- ciaJly where the carrier Ls an artiUeial being. Incapable of acting except by agont.s and serv- ants? It Is carefulness and diligence in per- forming the service which the law demands, not an abstract carefulness and diligence in proprietors and stockholders who take no ac- tive part In the business. To admit such a distinction in the law of common carriers, as the business is now carried on, would be sub- versive of the very object of the law. It is a favorite argument in the cases which favor the extension of the carrier's right to contract for exemption from liability, that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to have his goods carried. Thus, In Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485, the ^•ourt sums up its judgment thus: "To say the parties have not a right to make their own contract, and to limit the precise extent of rlieir own respective risks and liabilities, in a matter no way affecting the public morals, or conflicting with the public interests, would, in my judgment, be an unwarrantable restric- tion upon trade and commerce, and a most palpable invasion of personal right." Is it true that the public interest Is not af- fected by individual contracts of the kind re- ferred to? Is not the whole business com- mimity affected by holding such contracts valid? If held valid, the advantageous posi- tion of the companies exercising the business of common carriers is such that it places it in their power to change the law of common carriers in effect, by introducing new rules of obligation. The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot at- ford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the car- rier presents; often, indeed, without knowing what the one or the other contains. In most cases, he has no alternative but to do this, or Ml)audon hLs business. In the present case, for example, the freight agent of the company testified that though they made forty or fifty contracts every week like that under consid- eration, and had carried on the business for years, no other arrangement than this was ever made with any drover. And the reason is obvious enough. — if they did not accept thi.s, they must pay tariff, rates. These rates were 70 cents a hundred pounds for cai-rylug from Buffalo to Albany, and each horned animal was rated at 2000 pounds, making a charge of J14 for every animal carried, instead of the usual charge of $70 for a car-load; being a difference of three to one. Of course no drov- er could afford to pay such tariff rates. This fact is adverted to for the purpose of illus- trating how completely in the power of the railroad companies parties are; and how nec- essary it is to stand firmly by those principles of law by which the public interests are pro- tected. If the customer had any real freedom of choice, if he had a reasonable and practica- ble alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public In the line of his employment; then, if the cus- tomer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the pub- lic. But the condition of things is entirely different, and especially so under the mudified arrangements which the carrying trade has assumed. The business is mostly concentrat- ed in a few powerful corporations, whoso po- sition in the body politic enables them to con- trol it They do, in fact, control it, and impose such conditions upon travel and transporta- tion as they see fit, which the public is com- pelled to accept. These circumstances fur- nish an additional argument, if any were needed, to show tliat the conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public pol- icy and morality. The status and relative po- sition of the parties render any such condi- tions void. Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position In which they can take undue advantage of the per- sons with whom they contract, must rest up- on their fairness and reasonableness. It was for the reason that the limitations of liability first introduced by common carriers into their notices and bills of lading were just and rea- sonable, that the courts sustained them. It was just and reasonable that they should not be re.«5ponsibIe for losses happening by ;heer accident, or dangers of navigation that no human skill or vigilance could guard against; it was just and reasonable that they should not be chargeable for money or other valua- ble articles liable to be stolen or damaged, un- less apprised of their character or value; it was just and reasonable that they should not be responsible for articles liable to rapid de- cay, or for live animals liable to get unruly from fright and to injure themselves in that state, when such articles or live animals be- came injured without their fault or negli- gence. And when any of these just and rea- sonable excuses were incorporated into notices or special contracts assented to by their cus- tomers, the law might well give effect to them without the violation of any important prin- ciple, altliough modifying the strict rules of responsibilitj' imposed by the common law. The improved state of society and the better administration of the laws, had diminished the opportunities of collusion and bad faith on the part of the carriei", and rendered less 48S ILLEGALITY OF OBJECT. Imperative the application of the iron rule, that he must be responsible at all events. Hence, the exemptions refen-ed to were deem- ed reasonable and proper to be allowed. But the proposition to allow a public carrier to abandon altogether his obligations to the pub- lic, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his em- ployment, would never have been entertained by the sages of the law. Hence, as before remarked, we regard the English statute called the railway and canal trafliic act, passed in 1S54, which declared Toid all notices and conditions made by com- mon carriers except such as the judge, at the trial, or the courts should hold just and reasonable, as substantially a return to the ndes of the common law. It would have been more strictly so, perhaps, had the rea- sonableness of the contract been referred to the law instead of the individual judges. The decisions made for more than half a centui-y before the courts commenced the abnormal •course which led to the necessity of that stat- ute, giving effect to certain classes of ex- emptions stipulated for by the carrier, may be regarded as authorities on the question as to what exemptions are just and reasonable. So the decisions of our own courts are entitled to Uke effect when not made under the falla- cious notion that every special contract im- posed by the common carrier on his customers must be carried into effect, for the simple rea- son that it was entered into, without regard to the character of the contract and the rela- tive situation of the parties. Conceding, therefore, that special contracts, made by common carriers with their custom- ers, limiting their liability, are good and valid BO far as they are just and reasonable; to the extent, for example, of excusing them for all losses happening by accident, without any negligence or fraud on their part; when they ask to go still further, and to be excused for negligence — an excuse so repugnant to the law of their foundation and to the public good — they have no longer any plea of justice or rea- son to snpport such a stipulation, but the contrary. And then, the inequality of the par- ties, the compulsion under which the custom- er is placed, and the obligations of the carrier to the public, operate with full force to divest the transaction of validity. On this subject the remarks of Chief Justice Redfield, in his recent collection of American Railway Cases, seem to us eminently just. "It being clearly established, then," saj's he, ■"that common carriers have public duties which they are bound to discharge with im- partiality, we must conclude that they cannot, either by notices or special contracts, release themselves from the perfonnance of these public duties, even by the consent of those who employ them; for all extortion is done by the apparent consent of the victim. A public officer or servant, who has a monopoly in his department, has no j ust right to impose onerous and unreasonable conditions upon those who are compelled to employ him." And his conclusion is, that notwithstanding some exceptional decisions, the law of to-day stands substantially as follows: "L That the exemption claimed by carriers must be rea- sonable and just, otherwise it will be regarded as extorted from the owners of the goods by duress of circumstances, and therefore not binding. 2. That every attempt of carriers, by general notices or special contract, to ex- cuse themselves from responsibility for losses or damages resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employnienta, and, therefore, based upon principles aiid a policy which the law will not uphold." The defendants endeavor to make a distinc- tion between gross and ordinary negligence, and insist that the judge ought to have char- ged that the contract was at least effective for excusing the latter. We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary neghgence. Strictly speaking, these expressions are indic- ative rather of the degree of care and dili- gence which is due from a party and- which he fails to perform, than of the amount of in- attention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence. And if ordinary care is due, such as a prudent man would ex- ercise in his own affairs, failure to bestow that amount of care is called ordinaiy neg- ligence. In each case, the negligence, what- ever epithet we give it, is failure to bestow the care and skill which the situation de- mands; and hence it is more strictly accurate perhaps to call it simply "negligence." And this seems to be the tendency of modem au- thorities. If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the per- formance of various duties and the fullilment of various contracts, we think they go too far; since the requirement of different de- grees of care in different situations is too firm- ly settled and fixed in the law to be ignored or changed. The compilers of the Frencli Civil Code imdertook to abolish these distinc- tions by enacting that "every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it." (Article 1382.) Toullier, in his commentary en the Code, regards tliis as a happy thought, and a return to the law of nature. Volume 6, p. 243. But such an iron rule is too regardless of the foundation principles of human duty, and must often operate with great severity and injustice. In the case before us, the law, in the ab- sence of special contract, fixes the degree of care and diligence due from the railroad com- PUBLIC POLICY— LIMITING LIABILITY FUR XEGLICEXCE. 489 pany to the persons carried on Its trains. A failure to exercise such care and diligence is negligence. It needs uo epithet properly and legally to describe it If it is against the pol- icy of the law to allow stipulations wliich wiU relieve the company from the exercise of that care and diligence, or which, in other words, will excuse them for negligence in the performance of that duty, tlien the company remains liable for such negligence. The ques- tion whether the company was guilty of negli- gence in this case, which caused the injury sustained by the plaintiff, was fairly left to the jury. It was unnecessary to tell them whether, In the language of law writers, sucli negligence would be called gross or ordinary. The conclusions to which we have come are- First. That a common carrier cannot law- fully stipulate for exemption from responsi- bility when such exemption is not just and reasonable In the eye of the law. Secondly. That It Is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. Thirdly. That these rules apply both to car- riers of goods and carriers of passengers for hire, and with special force to the latter. Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of lils stock on the train, is a passenger for hire. These conclusions decide the present case, and require a judgment of afTirniMnr-e. We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire. Judgment affirmed- 3 490 ILLEGALITY OF OBJECT. ^ SULLTTAN v. HERGAN. ' -^ ^ (20 AU. 232. 17 R. I. 109.) b^ Supreme Court of Rhode Island- July 12, 1S90. On petition for a new trial. Patrick ,7. Galvin, for plaintiff. Francis B. Peckham and William P. SbeSeld, Jr., for defendant. MATTESON, J. This is an action of as- sumpsit to recover moneys c\aimed. to be due to the plaintiff from the defendant un- der a contract of hiring. It appears from the evidence reported that the plaintiff was emplo.yod by the defendant in h[& Busmess of a dealer in groceries and liq- uors, as bar-tender and clerk, from No- vember 27,' ISSG, until April 19, 1SS8, and was to receive as wages $1S per month un- til May 1, 1SS7, and $25 per month there- after. At the trial the defendant set up as a defense the illegality of the contract, the sale of liquors being prohibited by law when the contract of hiring was made, and during the period of the plaintiff's em- ployment. The jury returned a verdict for the plaintiff for $187.84. The defendant moves for a new trial, on the ground that the verdict is against the law and the evi- dence. The principle that if a contract or prom- ise be founded on a legal and an illegal consideration, and the illegal considera- tion cannot be separated from the legal, and rejected, the illegality of part vitiates the whole, so that no action can be main- tained upon it as a contract, is conceded; but it is suggested that, inasmuch as the contract is illegal and void, and is there- fore, as it is contended, a nullity, the plain- tiff is entitled to recover for that portion of his services performed as clerk in the grocery part of the business, upon a quan- tum meruit, what such services were rea- sonably worth, and therefore that the ver- dict may be supported. We do not, how- ever, agree with the suggestion. Although a contract thus infected with illegality is regarded in law as a nullity, in so farthat tlie law will not lend its aid to enforce it, it is nevertheless not treated as if it had no existence in fact. The illegality ex- tends to every part of the transaction, and it cannot, therefore, be made the founda- tion of an assumpsit. Both parties are in pari delicto, and the law will, for that rea- son, not aid either party to enforce the contract, but leaves them where it finds them. It may sometimes happen, in con- sefjuence, that a defendant may gain a pe- cuniary benefit by reason of his wrong-do- ing, or of that in which he has equally participated ; but it is not for the sake of the defendant that his objection to Ids owu illegal contract is sustained. In Hol- man v. Johnson, Cowp. 341, 343, Lord Mansfield remarks: "The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defend- ant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, whicli thedcfendant has theadvantage of, contrarj" to the real justice, as betweea him and the plaintiff, by accident, if I may BO say. The principle of public policy- is this: ex dolo malo nan oritur actio. No court will^lend its aid to a man who founds his cause of aclion upon an immoraror an illegal act. If, from the plaintiff's own BtatrTrg'^t"5thcrwise, the cause of action appears to arise ex turpi causa, or from tlie transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because it will not lend its aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault, potior est conditio defendentis. " Bixby v. Moor, 51 N. H. 402, is a case strongly in point. In that case it appears that the defendant kept a billiard saloon and a bar for the sale of liquor. The liquor traffic was ille- gal, 'i'he plaintiff was employed by the defendants to work generally in and about the saloon. There was no special agree- ment that he should or should not sell liquor, or what particular duty he should do. But he was accustomed to work gen- erally in and about the saloon, taking care of the room, building fires, taking care of the billiard tables, tending bar, and wait- ing upon customers, and, in the absence of the defendant, ho had the whole charge of the business. In assumpsit, upon a quan- tum meruit, it was held that he could not recover compensation for any portion of his services. The court say: "In the pres- ent case, however, there is room for but one conclusion, namely, that the agree- ment was that the plaintiff at the defend- ant's request should perform all the serv- ices which he did in fact pei-form,and that the defendants, in consideration of the promise to perform (and the performance of) all those services, the illegal as well as the legal, should pay the plaintiff the rea- sonable worth of the entire services. In other words, the plaintiff made an entire promise to perform both classes of serv- ices. This entire promise (and the per- formance thereof) formed an entire con- sideration for the defendant's promise to pay, and a part of this indi\isible consid- eration was illegal." In the present case the sums which the defendant promised to pay formed one entire consideration for all the services to be rendered by the plaintiff, both those in tending the bar, which were illegal, and those as clerk in the grocery store, which wei-e legal. Had one price been agreed upon for the services as bar-keeper, and another as clerk in the grocery business, so that it would have been possible to separate the legal from the illegal part of the transac- tion, an action could have been maintained for the services which were legal ; but, as it is, the defendant's promise being entire, and the consideration for it being partly legal and partly illegal and indivisible, both parties are to be regarded as equally in fault, and the law will lend its aid to neither. Petition granted. (y SHAW V. carpe: EFFECT OF ILLKGALITY. 491 PEXTER et aL (54 Vt. 155.) Supremo Court of Vcrniont. Montpclier. Oct, 1881. ROYCE.CIi.J. riiiscauHe was hearrl iij). fill the roptirt of a spfcial tDastcr .ipiioin t- 6(3 to ascertain and report tlie amount due on the niortgajje described iu the petition. It ajjpears from the report that on the 24tii day of July. 1S72. one Benj. D. Peter- son, who was then enf;aKedin the business of bottling cider, soda, and mineral wa- ters, at the city of I>uiiiniL;ton, sold the good will of the business and all his stock, —tools, bottles, machinery, and fixtures, then in u.se by him in said business, as specified in certain inventories, which were signed by the said Peterson, to the defend- ant Carpenter. Upon said inventories the varions arti- cles sold were separately carried out, with a separate price fon the^i'^imd that the [)ortion of the [)i-opei'Ly above enunjer- ated was illegally sold. It has somewhere been said, that tiic dcclarinw such a secu- rity void was to be reyar8, $6.72, and .f J.lV), being for th(^ ale, l)orter, and alcohol illegally sold, — as of the date of the note. If the amount due cannot be ascertained from the computa- tions made by the master, it is to be as- certained in such manner as the court may direct. Dissenting opinion was delivered by IIOS8, J. I am unable to concur in the decision of the court in this case. On the facts found by the master, it may be question*able whether the sale of the *1G6 cider was illogal, within the exact terms and language of the statute. How- ever, when a man establishes a busine.sis ft)r the bottling and sale of cider and oth- er fermented drinks, in a city, like I'.urling- ton, has a wareliouse for storing, nianu- lacturing, bottling, and vending the same, and keeps an ottice, he so far makes the placeof liisbusiness a placeof publicresort for the sale of cider, although the vending is carried on by solicitation of orders at the hoiisi's and [)laces of business of his customers, and the delivery of the bottled cider is at the latter places, that in my opinion, it comes within the spirit and seop" of the statute, and without any forced consti-uctiut I do not i-egard this jxjint very mate- rial ; and should not on tliis gi(jund have placed my dissent upon ree(jril. A i)art of the consideration of tiie note being idegal, the note is void and no action can be maintained thereon to enforce its collec- tion. To the cases cited by the court, in the main of)inion, may be added CobI) v. Cowdery et al., 40 Vt. L'.j; I'cjwen v. I'lick, 2S Vt. ;JU8. In Cobb v. Cowdery, supra, the distinction is tjiken between a consid- eration, in part voiij, and a consideration in part illegal. The note failing, what is there left for the mortgage to stand ui)on ? The moi'tgage is but an incident to the debt it secures. On the autlujrities cited by the court in support of its decision, at well as all the reasoning, partial illegality of consideration avoids all securities. The note was a security, or evidence of the ilebt, of a higher nature than the original contract. Ttie latter was merged in the note. The n(Jte in suit, and all the notes secured by the mortgage, were tainted by illegal consideration entering into them. Each note being an entire contract of it- self, no division of the legal from the ille- gal, part of the consideration could be effected. Courts established for the en- forcement of law, will not give aid, or countena!ice to anything illegal; nor, where the illegal is commingled with the legal, will they aid in separating, or purg- ing the former from the latter. Their proper function is to establish and enforce the legal a!ul to condemn and i)unish the illegal. Where a part, however email — of the consideration of an entire contract is illegal, the whole cfintract is tainted, and courts will not compel its performance Collins V. r.lantern. 2 Wils. :!41, is a *167 leading case on *lhis suliject. iu which, the Lord Chief Justice Wil- MOT uses the (juaint but foi'cible, and often quoted language: "You shall not stii)U- late for iniquity ; all writers upon our law agree in this,n«j polluted hand shall touch the pure fountains of justice: whoever is a party to an unlawful contract, if he hath onc3 paid the money stipulated to be paid in pursuance thereof, he shall not have the hell) 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. Frocul! O prociil estf, profuui. " The mortgage is an entire contract. Its consideration was the notes, the payment of which was therein secured; every one of which was tainted with an illegal consideration in part. It was not given to secure the per- formance by Carjienter of his contract with Peterson, of .Inly 24, 1S72. by which he purchased his business and stock in trade, but was given solely to secure the payment of the notes which were executed in jiayment of that purchase. If the ac- tion were upon the notes, it is conceded that no recovery could be had; because every one of them is tainted with illegal 494 ILLEGALITY OF OBJECT. coDsideration. The illegal could not be separated from the le«al portion of the consideration; and an enforcement of the collection of the notes would be the en- forcement of an illegal contract. How does it differ when the mortgage, which is but an incident to the notes, is allowed to be foreclosed? Is it not an enforce- ment of an illegal contract? To foreclose the mortgage for the legal part of the con- sidenition must not the illegal portion oe ascertained and rejected; which the mu- joritj' hold could not be done, if the action were upon the notes? What is the fore- closure but an action upon the notes de- scribed in its condition? and to ascertain the legal part of the consideration of the mortgage must not the notes be treated as divisible? I can see no other means of separating the legal from the illegal part of its consideration. In Vinton v. King, 4 Alien, odi.'. Metcalf, J., says: "In an ac- tion brought by a mortgagee against his mortgagor, on a mortgage given to secure payment of a note, the defendant may show the same matters in defence (the Statute of Limitations excepted, 19 Pick. o3"i,) which he raigb.t show in defence of an action on the note." I am not aware of any exception to the rule *thus *168 stated, nor of any case to the con- trary. I am not unaware, that Mr. Jones 1 his work on mortgages, s. G20, says: "The mortgage maybe upheld for such part of the consideration as was free from the taint of illegality when the considera- tion is made up of several distinct transac- tions, some of which are legal, and others are not, and the one can be separated with certainty from the other." The cases he cites support this doctrine. Feldman v. Gambel, 26 N. J. Eq.494; Williams v. Fitz- hugh, 37 N. Y. 444; McCraney v. Alden, 46 Barb. (N. Y.) '272; Cook v. Barnes, 36 N. Y. 520. It may well be admitted that a mort- gage, given to secure the payment of sev- eral notes, or debts, a part of which arose out of wholly legal transactions, and a part of which were tainted with illegali- ty, could be enforced to compel the pay- ment of the former alone. In such a case the orator would not have to show in evidence, norrely upon anything illegal, in maintaining his suit. In the laniruage of GiBBS, Ch. J., in Simpson v. Bloss, 7 Taunt. 246, in speaking of Faikney v. liey nous, 4 Burr. 206!), and Petrie v. Hannay, 3 Term Kep. 418: "The ground of their de- cision was, that the plaintiffs required no aid from the illegal transaction to estab- lish their case. " This, as I understand, is the test most frequently applied in this class of cases. If the plaintiff can show a good cause of action, independent of, and without bringing into the case anything illegal, either by way of proof or other- wise, he may maintain his action therufor. If, on the other hand, he derives any aid from the illegal part of the transaction, by being obliged to show it to make out the legal part, or otherwise, he must fail. The court will not allow the unclean thing within the temple of justice. In the foreclosure of his mortgage the orator was bound to show in proof his notes, every one of which was tainted with ille- gality; and for that reason the notes all fall, and the mortgage given to secure them alone, falls with them. This point my brethren have not deemed worthy of their attention, nor alluded to. But if I am in error on this point, 1 cannot concur with my associates in holding that the original contract is divisible. It is in writ- ing, and amenable to the rules of evidence which forbid varying, lessening or enlarg- ing such contracts by parol tes- *169 "timony. It is in the following lan- guage: "In consideration of three thousand three hundred thirty-seven dol- lars and eighty -one cents received of John W. Carpenter, I, Benjamin D. Peterson do hereby sell, transfer and assign unto said Carpenter the good will of a certain busi- ness for bottling cider, soda and mineral waters, now carried on by me in Burling- ton, together with all the stock, tools, bottles, machinery and fixtures, now in use in said business, as specified in certain inventories hereto attached, and I agree to deliver to said Carpenter the gross amount of property described in said in- ventories, which said inventories are signed with my name." Qlie inventories are referred to and madea part of the con- tract toshow what personal property was to pass with the good will of the business. They ai-e not referred to for the price of the several articles included. The master has found that the aggregate of the prices there carried out, did not amount to the sum named in the contract, and for which the notes were given, into .«116. Hence, if the prices carried out on the inventories are to be regarded as a part of the ccm- tract, they do not show that the articles were severally sold for the price set against them, but the reverse. The contract is to be construed as a whole. Thus construed, it is an entire, indivisible contract. It was a sale of a business, as a going concern, including the good will, stock in trade, machinery and fixtures. It is not to be in- ferred, or intended, that Peterson would have sold the good will of the businass, without selling the stock in trade, ma- chinery and fixtures, nor that Carpenter would have purchased the latter without the former. It was not the sale of the good will as one separate transaction, of each bottle, barrel, and fixture as another separate transaction, and so divisible. But one consideration is named or paid ; and but one thing is sold— the business, including the stock, &c., and good will as a going concern. As said by Dkvens, J., in Young & Conant Mfg. Co. v. Wakefield, 121 Mass. 91: "If but one consideration is paid for all the articles sold, so that it is not possible to determine the amount of consideration paid for each, the contract is entire. Miner v. Bradley, 22 Pick, 457. So if the purchase is of goods as a partic- ular lot, even if the price is to be ascer- tained by the number of pounds in ♦170 the lot, or num*ber of barrels in which the goods are packed, the con- tract is also held entire, Clark v. Baker, 5 Met. 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350, While in the cases last referred to, it could be ascertained what was the amount of consideration paid foreach pound, or bar- EFFECT OF ILLEGALITY. 495 rcl, yet the articles having been sold as one lot,- it wan to lie inforred that one pound or barrel would not have been sold nnh'KS all were sold." On these principles, if tiio mortgage can be upheld as as(;curity ■tov the payment of the consideration of the original c(jntract, as well as the notes given in payment therefor, the considera- tion of tlie contract is ontiri?, indivisible, and tainted with illegality, and for that reason void, and shoulJ not bo enforced. To my mind, tiie cases principally relied UF)on by my associates are not authority for their decision. In Kohinsonv. IMand, 2 Uurr. 1077, tiie transactions were separate and distinct. One was horrowing three hundred pounds; the other losing three huudi'cd sev(nit3'-t\vo j^ounds in gaming. While the bill of exchangi; given for the two was held to be void because tainted Avith in part illegal consideration, the plaintiff was allowed to recover on the count for money loaned, for the three hun- dred i)ound8 borrowed by the intestate. The plaintiff could establish this part of his claim without the aid of the other, in anj' manner. The remark of Justice Deni- eoN, made in that case: "There is a dis- tinction between the contract and the se- curity'. If part of thecontract arises ui)on ag(Jod consideration, and partnponabad one, it is divisible. But it is otherwise as to thesccurity ; thatbeingentire, is badfor the whole, " is not to be pressed beyond the case in hand, and given universal applica- tion. His language, as to its being "divis- ible," was true as applied to the facts of that case. The law vs^as more accurately expressed by Mr. Justice Wilmot: "Here are two sums demanded, which are blend- ed togetherin oncbill of exchange; but are divisible in their nature, as to the money lent. The cases that have been cited are In point, that it is recoverable." Carleton V. Woods, 28 N. H. 290, comes nearer to supporting the decision of the majority of the court, but in my judgment, is distin- guishable from thecase at bar. It is there distinctly held that if the contra'jt is en- tire, and part of the consideration is illegjil, *the contract is void; but •171 that where an entire stock of goods is sold, at one and the same time, but each article for a separate and distinct agreed value, the contract is not t(j be re- garded as entire and indivisible. The sale was for cost and freight, and Woons, J., says: "We are unalde to see how this case differs frf)rn the case of a sale by a mer- chant of varioii.s goods to his customers, at one and the same time, for soiiarate values, stated at the time, wliicli, when computed, would, of course, auKjunt to a certain sum in the aggregate." It was on this theory tliat the court held, that, al- though the notes could not be main- tained, because a part of the considera- tion was for spirituous liquors illegally Kold.j'et.on the general cf)unts in assump- sit, for goodssold aJid delivered, the plain- tiff might recover for the goods sold, as the court held, independentl3' of, and as transactions separate from, the purchase of the liquors. To say the least, this wa.s pressing the doctrine of divisibility of a contract to the extreme verge, and I ara unwilling to go further. There may have been more in the case than appears in the report, justifying the holding of the court. On the facte stated, I think the authority is clearly against that contract being di- visible. That case, however, lacks the ele- ment of being the sale of a going business, including the good will, and does not appear to have been reduced to writing. In my judgment, the decree of the Court of Chancery should be reversed, and the cause remanded, with a mandate to enter a decree dismissing the bill with costs. TAFT, J., desires me to say that he con- curs in the views I have expressed, except in regard to the sale of the cider being ille- gal, on which point he concurs in the views of the majority of the court. 496 ILLEGALITY OF OBJECT. h ^ EOYS V. JOHNSON et al. (7 Gray, 162.) ^ Snpreme Judicial Court of Massachusetts. Middlesex. October Term, 1856. L. J. Fletcher, for plaintiff. W. S. Gard- ner, for defendants. METCALF, J. It is agreed by the parties that the plaintiff performed for the defend- ants the services for which he now seeks to recover payment and that they have not paid him. It is for them, therefore, to show that he is not entitled to recover. This, in our opinion, Is not shown by the statement of facts submitted to us. It appears, indeed, from that statement, that the defendants, without a license, set up theatrical exhibi- tions, in which they employed the plaintiff as an actor; and it follows, of course, that they thereby violated the law, and subject- ed themselves to punishment But it does not appear that the plaintiff knew that they had no license. Unless he knew that tact, Ee Ts in ho legal fault; and where a defend-, ant is the only person who has violated the! law, he cannot be allowed to take advantage of his own wrong, to defeat the rights of aj plaintiff who is innocent. In the cases cited by the defendants' coun- sel, where defences were sustained because the claims were void for illegality, the par- ties suing knew, or were bound to know, that they or the parties sued were violating or undertaking to violate the law. And this distinguishes all those cases, as well in law as in common justice, from the case at bar; as was held in Bloxsome v. Williams, 3 Barn. & C. 232. In that case, a suit was brought to recover damages for breach of a warranty of a horse sold to the plaintiff on Sunday. The defence was, that the contract was void within St. 29 Car. 2, which prohibits worldly labor, business or work, in the exercise of one's ordinary calling. It appeared that the defendant's ordinary calling was that of a dealer in. horses, and therefore, that ho had violated the statute by selling and warrant- ing the horse; but that dealing m horses was not the plaintiff's ordinary calling, and therefore, that he had^-not violated the stat- ute by purchasing the horse and taking a warranty. But, as the case states, there was no evidence that the plaintiff knew that the defendant was by trade a horsedealer at the time the bargain was entered into. The court held that the defendant wns answer- able for the breach of his contract. Bayley, J., said. "The deftn lant was the person of- fending, within the meaning of the statute, by exercising his ordinary calling on the Sunday. He might be thereby deprived of any right to sue upon a contract so illegally made; and upon the same principle any oth- er person knowingly aiding him in a breach of the law, by becoming a party to such a contract, with the knowledge that it was il- legal, could not sue upon it. But in this case, the fact that the defendant was a deal- er in horses was not known to the plaintiff. He, therefore, has not knowingly concurred in aiding the defendant to offend the law; and that being so, it is not competent to the defendant to set up his own breach of the law as an answer to this action." See re- port of the same case in 5 DowL & R. 82, and a recognition of the doctrine of that case in Fennell v. Ridler, 8 Dowl. & R. 207, 208, and 5 Barn. & C. 409, and also in Bcgbie v. Levy, 1 Tyrw. 131, and 1 Cromp. & J. 183. It is to be noticed that in the case of Blox- some V. Williams, it was said that it was not known to the plaintiff that the defend- ant was a dealer in horses, because there was no evidence that he knew it. In the present case, we treat the plaintiff as not knowing that the defendant had no license, because the statement of facts does not show that he knew it. It is ignQEapce of a fact, an d not -oi the law, that saves the plaintiff's case. He un- doubtedly knew, or was bound to know, that unlicensed theatrical exhibitions were im- lawful; but he was not bound to know that the defendants had no license and were do- ing unlawful acts. .Tndgiiif>nt for the plaintiff. / '2-7 TRACT r. TALMAGE EFFECT OF ILLEGALITY. 3^K 497 rf.3^ ^ -STATE OF INDIANA v. LEAVI <^^^ (14 n; Y. lOli.) J y^-d[ future day, which was spfciliod; each cer Court of Apponls of Now York. IS.jO, The North Aiuericau Trust and Banking Company was, in July, 18^8, or;;anizcd iu the city of New York as a corporaiiou, under and by virtue of the act "to authorize the business of baiUuuf,'." Laws 1838, p. 245. By the articles of association the capital was $2,0uu,0U0, with power to increase the same to $r)0,(JlaintifT"s condition or situation, then the plaintiff shall fffcover; and ijt is astonishing that the reports do not distinguish between violations of .tlie_ime-soi-t AQd.ihe, o.ther." Two things are to be noted in this extract: That a distinction is taken between contracts lualum prohibitum merely, and such as are immoral or contrary to general principles of policy; and also that stress is laid upon the fact that the law contravened in this case was intended to protect one party from op- 50 i ILLEGALITY OF OBJECT. pression by ibe other. Tlie tirst is a valid distinction, wliicli runs through all the sub- sequent cases— the last was merely incidental to the particular case, and not essential to the principle. The first cases in which the principle was applied, were naturally those where the statute violated was intended for the special protection of the pai-ty seeking relief from some undue advantage taken by the other, because those were the cases in which the injustice of applying the same rule to both parties would be the most glar- ing. But it soon came to be seen tliat the principle was equally applicable to cases where the law infringed was intended for the protection of the public in general. The case of Jaques v. Golightly, 2 W. Bl. 1073, was an action brought to recover back money paid for insuring lottery tickets. The defendant kept an office for insurance con- trary to the statute 14 Geo. III. c. 76. It was urged that the plaintiff being particeps criminis, and having knowingly transgressed a public law, was not entitled to relief; but the action was sustained by the unanimous opinion of the court. Blackstone, J., said: "These lottery acts differ from the stock- jobbing act of 7 Geo. II. e. 8, because there both parties are made criminal and subject to penalties." The rule here suggested for determining whether the parties are in pari delicto, seems reasonable and just. There are, undoubtedly, other cases in which the parties are not equally guilty; but it is safe to assume^ that whenever the statute imposes a penalty upon one party and none upon the QUier^ they are not to be regarded, as par delictum. In Browning v. Morris. 2 Cowp. T^OTLord Mansfield, after referring with ap- probation to the case of Jaques v. Golightly, reiterates the argument of Blackstone, J., in that case. He sqys: "And it is very ma- terial that the statute itself, by the distinc- tion it makes, has marked the criminal, for the penalties are all on one side,— upon the officekeeper." The question next arose in the case of Jaques V. Withy (1 H. Bl. G5), which is iden- tical with the case of Jaques v. Golightly, de- cided by the same com-t fifteen years before. The action was brought to recover back money paid for insurance to the keeper of a lottery insurance office, and it was held to lie. ' It will be seen that these two cases are not Uke tliat of Smith v. Bromley, where an undue advantage was taken, of the peculiar situation of the plaintiff; and that although some effort is made in .Taques v. Golightly, and by Lord Mansfield in Browning v. Mor- ris, supra, to bring them within the reason- ing of that case, they are really placed upon the broad ground that the parties are not in pari delicto, and, as evidence of this, the court rely upon the fact that the penalty was Imposed upon the defendant alone. A simi- lar question came before the court of king's bench in the case of ■\Yilliams v. Hedley, 8 East, 378, where the previous cases were ably and elaborately reviewed by Lord Ellen- borough. The action was brought to recover back money which had been paid by the plaintiff to compromise a qui tam action pending against him for usury. The princi- ple of the decision cannot be better stated than by ti'anscribing the head note of the reporter, which is this: "Money paid by A. to B., in order to compromise a qui tam ac- tion of usurj' brought by B. against A. on the ground of a usurious ti-ansaction between the latter and one E., may be recovered back in an action by A. for money had and re- ceived; for the proliibition and penalties of the statute of 18 Eliz. c. 5, attach only on the informer or plaintiff or other person suing out process in the penal action making com- positicn, &c., contrai-y to the statute, and not upon the party paying the composition; and, therefore, the latter does not stand, in this respect, in pari delicto, nor is he particeps criminis with such compounding informer or plaintiff'." These are the leading English cases on this subject; and it is plain that they do not res t solely upon the ground that the statute jn- f ringed Avas intended to protect' "one pait^' from acts of oppression or extortion by Jhe other; and equally plain that relief is grant- ed in this class of cases entirely irrespective of the question whether the coutraci-..l^e executed or executorj\ It was, in fact, exe- cuted in all these cases. The series of cases here referred to have never been overruled. On the contrary, they have been expressly sanctioned and ap- proved in several American cases. In In- habitants V. Eaton, 11 Mass. 3G8, Chief Jus- tice Parker, after referring to the cases of Smith V. Bromley and Browning v. Morris, supra, and to the distinction there taken, saj's: "This distinction seems to have been ever afterwards observed in the English courts; and being founded in sound prin- ciple, is worthy of adoption as a principle of common law in this comitry." The case of White V. Bank, 22 Pick. 181, proceeds up- on the same distinction. It is impossible, as it seems to me, to distinguish this case in principle from that now before the court. The Revised Statutes of Massachusetts (chapter 36, § 57) pi:ohibited banks from .mak- ing any contract "for the payment..of money at a future day certain," under a penalty of a forfeitm-e of their charter. The plaintiff had deposited money with the defendant in February, to remain imtil the 10th day ot August; and the action was brought to re- cover this money. It was objected that the contract was illegal and the parties particeps criminis, but the defence was overruled. This is by no means an anomalous case, as the counsel for the receiver upon the argu- ment of this case seemed to suppose. On the contrary, it belongs clearly to the same class with the English cases just reviewed. Wilde, J., who delivei-ed the opinion of the conrt, after referring to those cases, and quoting EFFECT OF ILLEGALITY. 505 tlie ronuirks of Chu-f Justk-o raikcr in In- habitants of Worcester v. Eaton, given abuve, says: "The principle is in eveiy respect ap- plicable to the present case, and is decisive. The_prolirbiUon is particularly l eveled-against thebajaiv, and nut at'aiiist any person jjeaj- lng__wilh the bunjc. In the words of Lord '~5lausfield, 'the statute itself, by the distinc- tion it makes, has marked the criminal.' The plaintiff is subject to no penalty, but the defendants are liable for the violation of the statute to a forfeiture of their charter." Again, in the case of Lowell v. Railroad Co., 23 Pick. 24, where the objection was raised that the parties were partlceps crim- inis. the same justice says: "In respect to of- fences in which is involved any moral de- linquency or turpitude, all parties are deemed equally f::uilty, and courts will not inquire into their relative guilt. But where the of- fens e is merely malum prohibitum, nTirriS'Tn no respect immoral, it "is not against the. policy of the law to inquire into the relatjve dellhqueiicy of the parlies, and to administer jiistrce between them, although both parties are wTo ng-doer s." The same doctrine was reiteraTed in Atlas Bank v. Nahant Bank, 3 Mete. nsi. The principle of these cases was also adopted bj' our own supreme court in the case Mount v. Waite, 7 Johns. 434. The ac- tion was to recover back money which the plaintiffs had paid to the defendants for in- sm'ing lottery tickets contraiy to the policy of a statute passed in 1S07. Kent, C. J., says: "The plaintiffs here committed no crime in making the contract. They violat- ed no statute, nor was the contract malum in se. I think, therefore, the maxim as to parties in pai'i delicto does not apply, for the plaintiffs were not in delicto." This case is the last of the class to which I shall refer; and I think it would be diflicult to find a series of cases, running through almost a century, more uniform and consistent in tone and principle and in the distinctions upon which they are based. They have never, so far as I am aware, been overmled; and I know of no principle which would justify this court in disregarding them. The doc- trine seems to me eminently reasonable and just, and I discover no principle of pul)lic policy to which it stands opposed. On the contrary, I concur in the sentiment which Judge Wilde, in White v. Bank, expresses, thus: "To decide that this action cannot be maintained, would be to secure to the de- fendants the fruits of an illegal transaction, and would operate as a temptation to all banks to violate the statute by taking ad- vantage of the unwary and of those who may have no actual knowledge of the existence of the prohibition, and who may deal with a bank without any suspicion of the illegality of the ti-ansaetiou on the part of the bank." This language is as applicable to the case before us as to that in which it was used. It is said that all persons dealing with banks and other corporations are presumed to know the extent of their powers. This is no doubt technically true, and yet we cannot shut our eyes to tlie fact, that in veiy many cases it is a mere legal fiction. If we take the present ca.se as an example, it is plain that it would not have been easy for the Morris Canal and Banking Company, with the char- ter of the Trust and Banking Company and the restraining act both before them, to de- termine whether the issue of these certifi- cates in payment for state stocks would vio- late either; and yet, upon the doctrine here contended for, an honest mistake in this respect would visit upon the former com- pany a forfeiture of the entire amount of stocks transferred, which the latter com- pany, if disposed, might pocket. Such a principle would afford the strongest possible inducement for banks to transgress the law. All that they could get into their hands, by persuading others to take their unauthorized paper, would be theirs. Under such a rule, arguments to make it appear that they have power to do what they reallj- have not, might be made to constitute the most available por- tion of their capital; and unauthorized deal- ing in large amounts, with foreign states or corporations not familiar with our laws, the most profitable branch of their business. These considerations go, in my judgment, to strengthen and confirm the doctrine of the gases referred to, which hold that relief may be gi'anted to the more innocent, when the parties are not in pari delicto. The rule laid down in those cases for de- termining which is the more guilty part}- is directly apphcable to the present case so far as the ti'ansaction is held to fall within the provisions of the restraining act. It has been conceded, as was contended by the counsel for the receiver upon the argimient that the issuing of the certificates in this case was a violation of sections 3, and 7 of the act concerning unauthorized banking. 1 Rev. St. 712. It will be seen, by re- feiTiug to those sections, that the penalties are nnposed exclusively upon the conxiration violating the provisions of the act, and upon its otficei-s and members. So far, then-t'oru. as the defence is based upon a violation of the restraining act, there is that sUitutory designation of the guilty party upon which most of the cases to which I have refeiTed are made to rest. But it is obvious that the general principle for which I contend applies equally to that branch of the defence which rests upon the ground that the act of the banking company in issuing the notes, was ultra vires and against public pohcy. The imposition of the penalties for a violation of the restriiining law upon the corporation alone, does not make it the guilty party, but it is simply evidence that the legislature so regarded it; and the reasons are equally sti'ong for fixing the principal guilt upon the same party where its acts merely violate the principle of public policy. Although persons dealing with corporations are. for certain 506 ILLEGALITY OF OBJECT. purposes, presumed to know the extent of their corporate powers, yet this is by no means a safe rule by which to measure the moral delinquency of the respective parties. To me, therefore, it seems plain, that wheth- er we reirard the act of the Trust and Bank- ing Company in issuing the certiticates in question as a violation of the I'estraining law. or as simply ultra vii-es, or as against public policy, the corporation is to be regard- ed as comparatively the guilty party. I wish here briefly to refer to another class of cases decided in this state, and known as the "Utica Insurance Cases," not as avithor- ity for my conclusion, but by way of illus- trating the distinctions to which I have ad- verted. The first of these is Insurance Co. V. Scott, 19 .lohns. 1. The action was vipon a promissory note discounted by the insur- ance company in the ordinary way of dis- counting by a bank. It was held that the insurance company had no power to discount notes; and that in so doing it had violated the restraining act. But the court say: "In analogy to the statute against gaming, the notes" and securities are absolutely void, in- to whatever hands they may pass, but there is a material distinction between the security and the contract of lending. The lending of money is not declared to be void, and, there- fore, whenever money has been lent, it may be recovered although the secunty itself is void." Judgment was, however, given for the defendant in that case, because the ac- tion was brought upon the note alone. The next case was that of Insurance Co. v. Kip, 8 Cow. 20. This, also, was an action upon a note discounted by the insurance company; but the declaration also contained a count for money lent. The plaintiff recovered: and the court say: "The illegal contract, if any, was not the loan, for the plaintiffs had a right to loan the money to the defendants; but it was the agi*eement to secure the loan by a note discounted. Avoiding what was illegal, does not avoid what was lawful. The action for money lent, is rather a disaf- firmance of the illegal contract." Similar de- cisions were made in three subsequent cases, viz.: Insurance Co. v. Cad well, 3 Wend. 29G; Insurance Co. v. Kip, Id. 369; and Insui~ance Co. V. Bloodgood, 4 AVend. G."j2. These cases have never been overruled; and yet, I think I rhay say, they have generally been regarded with some suspicion as to their soundness. In New Hope Delaware Bridge Co. v. Poughkeepsie Silk Co., 25 Wend. G4S, Nelson, J., in speaking of them, says: "Whether the doctrine of these cases is well founded and may be upheld upon es- tablished principles or not, or whether the result was not ultimately influenced by the peculiar phraseology and powers of the char- ter of the Utica Insurance Company, in re- spect to which they arose, it is not necessai*y at present to examine. I am free to say, in either aspect, I should have great difficulty in assenting to them." There is, undoubted- ly, "great difficulty" in reconciling these cases with the settled rules in regard to il- legal contracts; and the dilficulty consists precisely in this, that the court, in the Utica insurance cases, have given to the guilty party the benefit of a principle which is only applicable to the more innocent. In the first case in which the insurance company recovered, viz., Insurance Co. v. Kip, the court cite and rely upon the following pass- age from Comyn: "Where the action is in affirmance of an illegal contract, the object of which is to enforce the performance of an engagement proliibited by law, such an ac- tion can in no case be maintained; but where the action proceeds in disaffirmance of such a contract, and instead of endeavoring to en- force it, presumes it to be void and seeks ta prevent the defendant from retaining the benefit which he derived from an unlawful act, there it is consonant to the spirit and policy of the law that he should recover." 2 Comyn, Cont. p. 2, c. 4, art. 20. Comyn cites, as authority for this passage, the case of Jaques v. Withy, 1 JI. Bl. 05, which is one of the cases to which I have referred, In which the plaintiff recovered on the ground that he was not in pari delicto with the de- fendant; and on turning to that case it will be seen that the passage is copied verbatim from the argument of Sergeant Adair, coun- sel for the plaintiff. It is thus made appar- ent that the doctrine of the Utica insurance cases is built, in part, at least, upon the principles and arguments which lie at the foundation of the class of cases just passed in review. More can scarcely be needed to justify the doubt which has been cast upon these insurance cases. How principles, ap- propriately used to sustain a recovery against a party, upon the express ground that he is the party upon whom tl?e prohibition and penalties of the law attach, can be made available to justify a recovery by a party so situated, is certainly difficult to comprehend. But, notwithstanding the misapplication to these cases of the principles for which I con- tend, the cases themselves afford strong evi- dence of the appreciation, by the court, of the soundness of those principles. Indeed, few, as it seems to me, will be found to deny either the justice or policy of the rule which refuses to permit the guilty party to retain the fruits of an illegal transaction at the ex- pense of the more innocent. But were it otherwise, the iiile, as I have showu, is in- disputably established; and that the present case falls within that rule is entirely clear. We have next, then, to ascertain the relief to which the Morris Canal and Banking Com- pany would, if the claimant upon the records be entitled The illegal conti'act itself is of course void, and no part of it can be enforced. It is impos- sible, I think, to sustain the reasoning adopt- ed in the Utica insurance cases, by which that part of the conti'act which embraces tlie loan (in this case, the sale) is separated EFFECT OF ILLEGALITY. 807 from tlie portion relating to the security, and uphold as a distinct and valid couti-act. The conti-act there, as here, was entire; and it is contrary to all the i-ules which have been appUed to illegal contracts to discrimin- ate between tln'ir dillereut parts, and hold one portion valid and tlie other void. Re- coveries are not had in such cases upon the basis of tlie express contract, which is taint- ed with illegality; but upon an implied con- tract founded upon the moral obli^'alion resting upon the defendant to account for the money or property received. The claim presented by the state of Indiana to the referees was in general terms, and broad enough to embrace a demand arising upon an implied conti-act to pay for the bonds ti'ansf erred ; and it has been repeatedly held that a corporation may become liable upon such a contract founded upon a moral obliga- tion, like that existing in this case. Bank V. Patterson. 7 Cranch. 299; Danforth v. Tiu-npiko Koad, 12 Johns. 227; Bank v. Dan- dridge, 12 Wheat 64. It follows from tliese principles, that if the Morris Canal and Banking Company was the claimant upon the record, it would be en- titled to recover, not the specific balance due upon the certificates, nor the price agi'eed to be paid for the stocks, but so much as the stocks transferred were reasonably worth at the time of such transfer, with interest, de- ducting thei'efrom whatever has been actual- ly paid in any form by the North American Tinist and Banking Company for the same, and leaving, however, the contract of sale, so far as it has been executed by payment, or its equivalent undistiu'bed. The only remaining question is, whether the state of Indiana has succeeded to the rights of the Morris Canal and Banking Com- pany in this respect. If, as it seems to have been held by the supreme com't both at special and general terras, the Canal and Banking Company acted in the sale of the stocks as the agent of the state of Indiana, then, of com*se, the latter, as the principal, is the proper party here. But, aside from this, I cannot doubt that a court of equity would hold, upon the face of the transac- tion, that it was the intention of the MoiTis Canal and Banking Company to transfer to the state its entire claim against the Trust and Banking Company, growing out of the sale of the stocks, and would, if necessary, compel any formal defects In such ti'ansfcr to be supplied; and as the proceeding here is of an equitable nature, the court, upon well settled principles, will regard what ought to be done as having been done. The judgment of the supreme court should be modified in accordance with tliese principles, and the proceedings remitted. MITCHELL, J., delivered an opinion in favor of afhrming the judgment of the su- preme com-t at general term. He was of the opinion that the evidence did not estab- lish that the Morris Canal and Banking Com- pany, or the state of Indiana, had knowledge when the bonds were sold that the Trust and Baulking Company purchased them for an il- legal purpose, or with intent to make an il- legal use of them, and that tlie last named company, at the time of the purchase, in 1S39, had authority to make and issue notes or certificates payable at a future day. He held, that associations organized under the general banking law were not subject to the provision contained in the safety fund act (Laws 1S29, p. 173. § 35), prohibiting mon- eyed corporations subject to the provisions of that act from issuing bills or notes, payable on time; and that such associations might lawfully issue such notes for a legitimatf purpose, until prohibited by the act of 1840 (Iia^^■s 1S40, p. 306, § 4). DENIO, C. J., was also in favor of affirm- ing the judgment, on substantially the same grounds as those stated bv Judge MITCH- ELL. COMSTOCK, HUBBARD, T. A. JOHN- SON, and WRIGHT, JJ.. concm-red in tlie foregoing opinion delivered by Judge SEL- DEX, and were in favor of modifying the judgment in accordance with the principles stated in that opinion, A. S. JOHNSON, J., dissented. He was in favor of reversing the judgment rendered at general term and atiirming that rendered at special term. Judgment modified. G? 508 TYLER V. CARLISLE. (9 Atl. 356. 79 Me. 210.) ILLEGALITY March 1, Snureme Judicial Court of Maine 1S87. On exceptions from supreme judicial court, Knox county. Assumpsit to recover money loaned. Thv? verdict was for the defendant, and the plain- tiff alleged exceptions. C. E. Littlefield, for plaintifC. J. E. Han- ley, for defendant. PETERS, C. J. The plaintifC claims to re- cover a sum of money loaned by him while the defendant was engaged in playing at cards. The ruling at the trial was that, if the plaintiff lent the money with an expres^ understanding, intention, and jpurpose that it 1 was" Wbe used to gamble with, and it was so I used, the debt so created cannot be recovered; MDUt otherwise if the plaintiff had merelv knowledge that the money was to be so used. Upon authority and principle the ruling was correct. Any different doctrine would, in most instances, be impracticable and unjust. It does not follow that a lender has a guilty pur- pose merely because he knows or believes that the borrower has. There may be a visible line between the motives of the two. If it were not so, men would have great responsi- bilities for the motives and acts of others. A person may loan money to his friend,— to the man,— and not to his purpose. He may at the "same time disapprove his purpose. He may not be willing to deny his friend, however much disapproving his acts. In order to find the lender in fault, he must liimself have an "intention that the money shall be illegally used- There must be a combination of inten- tion between lender and borrower.— a union of purposes. The lender must in some manner be a confederate or participator in the borrow- OF OBJECT. er's act,— be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the bon-nw- er, not intend merely to serve or accomuio- date the man. In support of this view many cases might be adduced A few prominent ones will suffice. Green v. Collins, 3 Cliff. 494, Fed. Cas. No. 5,755; Gaylord v. Soragen, 32 Vt. 110; Hill V. Spear, 50 N. H. 253; Peck V. Briggs, 3 Denio, 107; Mclntyre v. Parks, 3 Mete. (Mass.) 207; Banchor v. Mansel, 47 Me. 58. See Franklin Co. v. Lewiston Sav. Bank, 68 Me. 47. Nor was the branch of the ruling wrong that plaintiff, even though a participator, could re- cover his money back if it had not been ac- tually used for illegal purposes. In minor of- fenses, the locus penitentise continues \mtil the money has been actually converted to the illegal use. The law encourages a repudia- tion of the illegal contract, even by a guilty participator, as long as it remams an execu- tory contract, or the Ulegal purpose has not been put in operation. The lender can cease his own criminal design, and leclaim his mon- ey. "The reason is," says Wharton, "the plaintiff's claim is not to enforce, but to re- pudiate, an illegal contract." Whart. Cont. § 354, and cases there cited. The object of the law is to protect the public,— not the parties. "It best compoi-ts with public policy J j> arrp . st the illegal transaction, before it is consaom- roated/^^^ays the court in Stacy v. Foss, 19 ■lrrerS35. see White v. Bank, 22 Pick. 181. The rule allowing a recovery back does not apply where the lender knows that some in- famous crime is to be committed with the means which he furnishes. It applies only where the minor offenses are involved. Ex- ceptions overruled. DANFORTH, VIRGIN, LIBBEY, FOS- TER, and HASKELL, JJ., concurred. EFFECT OF ILLEGALITY. 50» FROST V. GAGE. (3 Allen, 560.) Supreme Judicial Court of Mas-sachusotta. Middlesex. Jan. Term, 1862. Contract. At the second trial of this case, aftor the facts roportod in 1 Allen, 1202, had been proved, the plaintiff offered in evidence a release of their several claims by the cred- itors of Richard Frost, and Richard testified that, after the release had been signed by the plaintiff and defendant, the latter pro- cured the signatures of other creditors to the same and delivered It to him, and he there- upon executed the assignment to the defend- ant. The defendant then offered to prove that he was Richard's largest creditor; that the plaintiff, who was Richard's son, request- ed him to aid in obtaining a settlement with Richard's creditors, and promised to make no claim upon him for any part of the pro- ceeds of Richard's estate which might come into his hands as assignee, but to allow him to retain the plaintiflf's share for his services, and also to execute to him a promissory note for a further sum, if he would sign the re- lease and procure the signatures of other creditors to the same; and that he, being induced by said promise, did sign the re- lease and procure the signatures of other creditors to the same. Morton, J., rejected this evidence, and the jury returned a ver- dict for the plaintiff. The defendant alleged exceptions. A. F. L. Norris, for plaintiff. W. P. Web- ster, for defendant. BIGELOW, C. J. The right of the plain- tiff to maintain his action on the second count, on proof of the facts therein set forth, was determined at the former hearing of this case. 1 Allen, 2G2. The only point now raised which was not then considered by the court arises on the evidence offered by the defendant to show that there was an agreement between him and the plaintiff, by which the former agreed to sign the com- position deed and procure the release of the other creditors of Richard Frost on a prom- ise by the latter to pay a portion of the debt duo from said Richard to the defendant, in addition to the dividend which he might re- ceive under the assignment, in common with the other creditors. That such an agreement would be a fraud on the other creditors, and that the defendant could maintain no action upon it against the plaintiff', is too clear to admit of any doubt. It was a secret and imderhand contract by which the defendant secured to himself an advantage over other creditors of the Insolvent, while at the same time he was holding out to the same cred- itors that he was to share in the assets equal- ly with them, and thereby inducing them to sign the composition deed and release the debtor from their claims. Story, Eq. § 378; Cockshott V. Bennett, 2 Term R. 763. 766; Lewis V. Jones, 4 Barn. & C. 511; Case v. Gerr>3h, 15 Pick. 49. The question then pre- sents itself, whether such a fraudulent agreement can be set up by the defen lant, who was a party to It, as a defense to an action by the plaintiff to recover the same share or dividend of the assets of the debtor as has been paid to the other creditors by the defendant. This is in some respects a novel question; but it seems to us to come within principles recognized in the adjudged cases, by the application of which it can be readily solved. Assuming that the defend- ant could establish all the facts containel in his offer of proof, It is clear that the plaintiff was a party to the fraudulent agree- ment by which the signatures of the other creditors to the release of the debtor were obtained. It was by his procurement, and on a promise by him to pay the defendant a portion of his debt beyond theamount which he would receive from the estate of the debtor, and the latter was induced to sign the release and to become the agent in pro- curing the signatures of the other creditors. It was through the procurement and instru- mentality of the plaintiff, and by means of an agreement which operated as a fraud on the other creditors, to which he was a party, and for which he furnished the considera- tion, that the composition and release were obtained. He was therefore a participator in the fraud. Holding the relation of a creditor, and bound to act witli good faith towards the other creditors, in entering into an agi'eement with them to compound with their debtor and to release him from their debts, he became a party to an agreement by which a secret advantage was attempted to be secured to the defendant, by which he was induced to become a party to the assign- ment and release, and thereby to hold out false colors to the other creditors, and lead them to believe that all were acting on equal terms, and to grant a discharge to their debtor on the faith that all were to receive a like portion of their respective debts. To adopt the significant figure which has been used to describe the effect of a transaction of this nature, in Story, Eq. § 378, the plain- tiff did not himself act as a decoy duck to mislead the other creditors, but he did that which was quite as effectual in accomplish- ing the fraud on them; he procured the duck, and placed him in a position in which he was enabled to practice a deception, and to draw the creditors into an arrangement with their debtor to which otherwise they might not have assented. In this aspect of the case, we do not see that the plaintiff stnuds in any better situation, or is entitled to any greater favor in a court of law than the defendant. As participators in the fraud, they both stand on an equal footing. Nei- ther can claim to recover anything in an ac- tion which can be maintained only by proof of a transaction into any part of which his fraud has entered as an essential element, affecting the rights of any parties interested 510 ILLEGALITY OF OBJECT. therein. It is on this ground tliat it has been belli thjit a creditor cannot recover his share or dindeud under a composition deed to whicii he became a party, if he had previ- ously taJien a private agreement for the pay- ment of the residue of the debt. His right to recover the amount to which the fraudu- lent agreement did not extend is forfeited by his participation in a fraud connected with another part of the same transaction. The whole is regarded as an entire agree- ment, which is vitiated by the fraudulent act of the party, as to him, so that he can claim no benefit under any of its provisions. Hig- gins V. Pitt, 4 Exch. 323; Knight v. Hunt, 5 Bing. 432; Howden v. Haigh, 11 Adol. & E. 1033; Fors. Comp. Cr, 152. It Is quite im- material, that the funds to be distributed among other creditors are not diminished or rendered less available in consequence of the secret agreement. The fraud consists, not in causing any injury to the assets of the debtor, or in reducing the share or interest to which the creditors are entitled under the composition, but in the attempt to induce them to enter into an agreement for an equal dividend on their debts in ignorance of a private bargain, whereby a creditor is to re- ceive an additional sum to that to which he may be entitled in common with all the cred- itors. Such an agreement vitiates the whole transaction, so that the party can claim no benefit under a composition into which he entered in consequence of such corrupt or fraudulent contract. It is quite clear, there- fore, that the defendant, if he did not stand in the position of assignee having possession of the assets, and were compelled to bring au action for the share or dividend on his debt which might be coming to him In com- mon with the other creditors, could not re- cover. The agreement into which he enter- ed with the plaintiff would be a bar to hi3 right to recover even that sum to which the fraudulent agreement did not extend. For a like reason, the plaintiff in this suit ought not to be allowed to recover. The fraud in which he participated, and by which he aid- ed in inducing creditors to become parties to the release of their debtor, taints the whole transaction as to him, and deprives him of the right of maintaining an action to enforce in a court of law that part of the agreement of composition to which the secret agreement did not immediately relate. It may be suggested that the application of this rule leads in the present case to the re- sult of leaving in the hands of the defendant, who was equally guilty with the plaintiff, the fruits of the fraud. But this is often the con- sequence of allowing a party to plead in de- fense the illegality of a transaction on which a cause of action is founded. Such defenses are allowed, not out of favor to defendants, or to protect them from the effects of their imlawful contracts, but on the ground of pub- lic policy, which does not permit courts of justice to be used to aid either party in en- forcing contracts which are unlawful or tainted with fraud, but leaves them in the condition in which their illegal or immoral acts have placed them. We axe therefore of opinion that the evi- dence offered at the trial was competent, and that it should have been admitted and sub- mitted to the jury, with instructions in con- formity to the principles above stated. Exceptions sustained. & 6 ^ WOODWOIITH EFFKCT OF ILLEGALITY. 511 BENNETT. J "^^ (43 N. Y. 273.J /{^ Ck)nrt of Appeals of New York. 1870. Action for goods sold. The opinion states the case. G. F. Bicknell, for appellant. Charles Ma- son, for respondent. CHURCH, C. J. The point hi this case Is, whether the court below erred in allowing to the defendant the sum of ^100 as an offset. The facts are substantially as follows: The plaintiff, defendant, Stephens and Truesdell, made an n greomont in the natu re .of_jL-£0: partne rship, to pro pose or bid for public work on _thg Seneca^ river im provement . The bid was to be put in the name of the plaintiff alone, the defendant and Stephens to become sureties. Truesdell was at the time an engi- neer in the employ of the state on the canals. The bid was made in the name of the plain- tiff, in accordance with the arrangement. Be- f oi;ethe__workwas ^^varded_the_sa i d_par^s madeanagreemenf with one Haroun, to wrth- d j^ \v tlJ{n t3ZlII llH~tD-th^5~\v6f K7ang^ell jheir bid to him for j400^ he bfiiiig a h igher bidder for tbe^ sam e work,jwhich_was^;onsujnmated,, and he^^ve~EIs'ndte for_the_amoimt. It was then arranged tHal'thelQote should be left with the plaintiff for collection, and that when collect- ed each of said persons should be entitled to $100. The plaintiff collected the note, paid to Stephens and Truesdell each $100, and prom- ised to pay the defendant, and apply it on their deal, but never did. It is claimed that It cannot be allowed, on account of the ille- gality of the transaction out of which it arose. To enable the court to apply correct legal principles, it is necessary to analyze the trans- action and ascertain its true nature and char- acter. The original arrangement for a joint in- terest or copartnership .saa,Jllegal, and con- trary to a positive statute in two respects. The I^aws of 1S54. chapter 329, in sub:stance requires that every proposal for. work shall contain the names of all persons -who are interested, and prohibits any stecret agree- ment or understanding that any person not named shall become interested in any con- tract that may be made, and engineers, and all odier persons in the employ O'f the state on the canals, are also prohibited from be- coming interested in any contract or job on the public works. In th e next place, the transaction _ with I laroun was " contrar y^ to public policy, and Tuogal. It is manifest that the object and purpose" of the purchase of the bid was to have it withdra\vn so as to enable Haroun to take the contract upon a higher bid. This was directly against the interests of the state, and tended to destroy that honest competition which public bidding is designed to secure; and when as in this case, it was done partly for the benefit of an officer of the state whose duty it was to protect its interests, it was not only contrary to public policy but was grossly corrupt. The supreme court placed its decision in favor of the defendant, upon the ground that as between the.se parties _J be illegal contrac t had been fu lly executed when Haroun paid tEe mon('yj _aj^iXjhoXXh e plaint i ff then became amere depd.sitary. an3" held the l money for ^ fbe use"^ the other parti_es . It Is undoubtedly true that if the contract or obligation does not depend upon nor re- quire the enforcement of the unexecuted pro- visions of the illegal contract. It will be car- ried out. It has been laid down as a test, that whether a demand connected with an illegal transaction is capable of being enforced at law depends upon w hethe r the party requires any aid^ from _the ill egal transaction tg estnl^ lish the case . Chit. Cont. G.j7. So it has been settled" that a party who pays money to a third person for the use of another, which, on account of the illegality of the transaction, he was not obliged to pay, .such third person cannot interpose the defense of illegality. Tenant v. Elliott, 1 Bos. & P. 3; Merritt v. Millard, *43 N. Y. 208; 3 Abb. Dec. 291. This^ principle is based upon the undoubted right of la person to waive the illegality, and pay the money; and that when once paid, either to |the other party directly or to a third person ^or his use, it cannot be recalled; and that /the third person, who was in no way con- [nected with the original transaction, cannot !avail himself of a defense which his principal Wiw fit to wnive. If the only illegal transaction was the con- tract with Haroun for the sale of the bid, these principles might be applicable, and would probably constitute a good answer to the objection to this counter-claim. The pay- ment of the money by Haroim completed that contract, and nothing remained unexecuted. But here the ori ginal partnersh ip w'^s '^fg-T^; not b ecause oTits purposes and. jebific'^-'^i *^"t its composjtion was prohibited_by_law. If a lawTul firm should receive funds from an illegal traffic or business, it may be that the illegality would be regarded at an end, and a division of the money enforced by virtue of the rights of the members under the contract of partnership. This is the utmost limit to which the riile can be carried. 2 ^Yall. 70. In such a case the obligation to divide would not arise out of the illegal purposes of the firm, nor would the division carry out any of those purposes, but the. obligation would arise out of the contract of partnership itself. Here this contract was illegal. The object of the statute was to enable the state officers to know with whom they contracted, and also to see that the statute, prohibiting engineers and other canal officers from becoming inter- ested, was not violated, and to prevent all secret combinations in relation to olit^ning work. The money obtained by this bid be- longs to the firm; and the plaintiff could have been compelled to divide, if the firm had been lawful, by force of the contract organlz- 512 ILLEGALITY OF OBJECT. ing iL In thl53 case he also agreed to pay the money, and defendant asks the court to com- pel him to perform this obligation. The an- swer to it is obvious. There is no obligatiop, because it was inc urred contr ary to laWr It r'e?T5' npOTr"n]e ^_con tm.ct of partnersh ip. jagd t hat Ls void for 'll^prJ^Jj^y In law there was no partnership, and none of the parties obtained any rights under the contract creating it. Armstrong v. Lewis, 3 Mylne & K. 45. The sentiment of "honor among, thieves" cannot be enforced in courts of justice. Sup- pose the engineer had sued for his share after an express promise, would any court have tolerated his claim for a moment in the face of a statute prohibiting him from being inter- ested? If not, in what respect does the de- fendant occupy any better position? The first step in his case Is to prove that he was a secret partner and entitled to a share of this money. The law prohibits secret partners, and he is therefore not a partner. The express promise does not aid the de- fendant, because the promise was only to car- ry out the unexecuted provision of the con- tract of partnership to divide the money. The two cases cited by the counsel for the defend- ant, if they are to be regarded as good law, are distinguishable from this. In the case of Faikney v. Renois, 4 Burr, 2069, one of two partners had paid £3,000 to settle differences in illegal stock-jobbing operations, and the defendant executed his bond to secure the share of the other partner. The court over- ruled the defense recognizing the exploded dis- tinction between acts malum prohibitum and malum in se, and held that as between those parties the bond was to secure the plainitff for money paid, and the purposes of the pay- ment would not be inquired into. A similar decision was made upon the authority of this case in Petrie v. Hannay, 3 Term R. 418, Lord Kenyon dissenting. The distinction be- tween the above cases and this is in the cir- cumstance that there the illegal transactions had been closed up and settled, and the obli- gations sought to be enforced were for the money advanced for that purpose. Here it is sought to consummate the illegal contract by a new agreement that it shall be performed. No case has gone this length, and the two cases above cited have been very much shaken by subsequent decisions, and are, to say the least, questionable authority, espe- cially the latter. Aubert v. Maze, 2 Bos. & P. .370; Mitchell v. Qockburne, 2 H. Bl. 380; Ex parte Daniels, 14 Ves. 190; Lowry v. Bourdieu, Doug. 4G7; Brown v. Turner, T Term R. 626; Belding v. Pitkin, 2 Caines, 147, note a. The general rule on this subject, is laid down in this court, in Gray v. Hook, 4 N. Y. 449, by Mullott, J., as follows: "The distinc- tion between a void and valid new conti-act in relation to the subject-matter of a former illegal one depends upon the fact whether the new contract seeks to carry out or en- force any of the unrxccuted provisions of the former contract, or whether it is based upon a moral obligation growing out of the execu- tion of an agreement which could not bo en- forced by law, and upon the performance of which the law will raise no implied promise. In the first class of cases, no change in the form of a contract will avoid the illegality of the fii-st consideration while express prom- ises based upon the last class of considera- tions may be sustained." It is sometimes difficult to apply general rules to particular cases, but this case comes clearly within the first class mentioned in the above rule. It is not from any regard to the rights of the party setting up this de- fense that courts refuse to enforce illegal contracts, but it is for the protection of the public. The plaintiff in this case is entitled to no sympathy or favorable consideration. He must have made an affidavit that no other person was interested with him in the pro- posal, and when he received this money, as between him and the defendant, the latter was entitled to it; and while we have no dis- position to justify his conduct, his position enables him to secure the advantage of a decision which we are compelled to make in obedience to a principle of public policy which is indispensable for the protection of the com- tQunity against the corrupting influences of illegal transactions. The observation of Lord Mansfield in Hol- man v. Johnson, 1 Cowp. 343, is applicable here. He said: "The objection that a contract is immoral or illegal as between pLaintiff and defendant sounds at all times very ill In the mouth of the defendant [in this case the plaintiff]. It is not for his sake however that the objection is ever allowed, but it is found- ed in general principles of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident. If I may so say." Judgment must be reversed and a new trial ordered, costs to abide the event. All concur. Judgment reversed and a new trial ordered. EFFECT OF ILLEGALITY. / 37 (^ SPRING CO. V. KNOWLTON. , , (103. U. S. 4y.) ^ >13 Supreme Court of the United States. Oct., 1S80. Error to the circuit court of the United States for the Northern district of New York. This suit was brought in 1SG9 by Dexter A. Kuowlton, a citizen of Illinois, against the Congress and Empire Spring Companj-, in the supreme court of the state of New Yorlc, to recover the sum of $13,980, with interest from Feb. 20, 1806. In 187G he died, and the suit was revived and continued by the administrators of his estate. They are citizens of Illinois, and on their application the suit was, March 20, 1877, removed to the circuit court of the United States. The parties, by written stipulation, waived a jury. The court tried the case, and found the facts to be substantially as follows:— The Congress and Empire Spring Company is a corporation organized under the statute of the state of New York of Feb. 17, 1848, airthorlzing the formation of corporations for manufacturing, mining, mechanical, or chemi- cal purposes, and subsequent acts amenda- tory thereof. Its capital stock was $1,000,- 000, divided into ten thousand shares of $100 each, issued in payment of property purchas- ed by the trustees of the corporation for its use. The mode by which such a corporation might Increase its capital stock is prescribed by sections 21 and 22 of chapter 40 of the laws of 1848. Section 21 prescribes how the notice of a meeting of the stockholders to consider the proposition to increase the capital stock shall be given, and what vote of the stocldiolders shall be necessary to carry the proposition. Section 22 prescribes how the meeting of the stockholders, called under section 21, shall be organized, and declares that If a sufficient number of votes has been given in favor of increasing the amount of capital stock, "a certificate of the proceedings, show- ing a compliance with the provisions of this act, the amount of capital actually paid In, . . . the whole amount of debts and lia- bilities of the company, and the amount to which the capital shall be increased, . . . shall be made out, signed, and verified by the affidavit of the chairman and countersigned by the secretary, and such certificate shall be acknowledged by the chairman and filed, as required by the first section of this act; and when so filed the capital stock of such corporation shall be increased ... to the amount specified in such certificate, . . . and the company shall be entitled to the privileges and provisions, and subject to the liabilities, of this act, as the case may be." The corporation passed a resolution, Jan. 11, 1866, to increase its capital stock by the addition thereto of $200,000. for the purpose of building a glass factory for the manufac- HOPK.SEL..CAS.CONT. — '6'i ture of bottles and providing a working capital. It also resolved that the books of the company should be optned for subscrip- tions to the additional stock, and that each stockholder should be allowed to take one share of the new for every five shares he held of tlie original stock, and that when he had paid .?S0 on each share the company should issue to him a certificate as for full- paid stock. At a meeting of the board of trustees of the corporation, held Feb. 8, ISGfJ, a divi- dend of four per cent on the original stuck was declared, payable Feb. 20, and it was resolved that a call of twenty per cent on the new stock should be made, payable on the latter date; that the books of the com- pany should be at once opened for sub- scriptions to the new stock; that each stock- holder should have the privilege of taking one share of the new for every five shares of the old stock held by him, and that on failure of any stockholder to pay, on or be- fore that date, $20 on each share of the new stock taken by him, all his claim to such new stock should be forfeited and the same divided ratably among the stockholders who had paid the instalment of $20 per share. In pursuance of the resolutions the trus- tees immediately issued a stock subscription agreement, by which the subscribers stipulat- ed to take the number of shares set opposite their names and to pay for each share $80, in instalments, as called for by the directors; and upon failure to pay the instalments with- in sixty days after call, that the money al- ready paid on the stock should be forfeited to the company. By the same agreement the company bound itself to pay interest up to Feb. 1, 1SG7, on all sums paid on the new stock, and on Feb. 8, 1867, to issue for every share of said new stock on which $80 had been paid a certificate to the holder as for full-paid stock; and it was provided that the holders of such stock should be entitled to vote thereon, and the same should draw divi- dends and be treated In all respects as full- paid stock. This agreement was signed by one C. Shee- lian, who subscribed for six hundred and ninety shares of the new stock, he being the holder of thirty-four hundred and ninety shares of the old stock. Thereupon a contract was made between Sheehan and Knowlton, whereby the former agreed to lend the dividend on his old stock to the latter, who agreed to assume the new stock subscribed for by Shoenan, and pay all future calls thereon. Sheehan's dividend on his old stock amounted to $13,9SS. Knowl- ton, In consideration of the transfer to him of this dividend, delivered his note to Shee- han for $13,980. dated Feb. 20. 1866, payable in one year, and secured the same by a pledge of one hundred and fifty shares of the stock of the company. He paid the residue, to wit, $S. in cash. Knowlton paid to the company, March 8^ 514 ILLEGALITY OF OBJECT. 1866, the can of twenty per cent on the new stock, subscribed by and sold to Sheehan as aforesaid, by the application thereto of Shee- han's dividend on the old stock, amounting to §;io,9S0. for which the company gave Knowlton a receipt. About December, 1868, Knowlton paid in full his note to Sheehan for ?13,9S0. Calls and personal demands were made both upon Sheehan and Knowlton more than sixty days before Jan. 25, 1S67, for the payment of subsequent instalments on the stock subscrib- ed by Sheehan, and both of them neglected and refused to pay the instalments called for; whereupon the trustees of the company pass- ed a resolution by which they declared that the new stock subscribed by Sheehan and assumed by Knowlton should be and was for- feited. From August, 1865, to August, 1S6G, Knowl- ton was a trustee and vice-president of the company; he advised the increase of the cap- ital stock above mentioned, proposed the reso- lutions in relation thereto, moved their adop- tion, drew up and signed the stock subscrip- tion agreement, and advised others to sign it. At a meeting of the stockholders of the company, held Aug. 7, 1867, it was resolved that the capital stock of the company should be reduced to the original sum of §1,000,000, and that the trustees be authorized to ar- range with the holders of the new stock for retiring the same on such terms and condi- tions as they should deem for the interest of the c ompany. ■ . _ — On the same day the beared of trustees met and passed a resolution, whereby the execu- tive committee of the board was authorized to adjust, on the best terms for the company, the claims of all persons holding receipts for payments on the new stock ordered to be re- tired. The executive committee passed a resolu- tion, March 27, 1868, that the company issue five-year coupon bonds sufficient to refund the payments made on the new stock of the com- pany which had been retired. No tender of these bonds was ever made to Knowlton, nor was any demand made for them by him; but he demanded repayment of the amount paid by him on his new stocK, and the company refused to repay it or any part of it. The majority of the holders of the original stock became subscribers for the new stock, and all of them except Sheehan, Knowlton, and one or two subscribers for small amounts, paid the calls made on them in respect to the new stock. The first call of twenty per cent on the new stock was paid mainly by the dividend on the old stock above mentioned, but about .?3,000 were paid in cash. All the stockholders who did not subscribe for now stock were paid their part of the dividend in cash. About ?80,500 of said five per cent bonds were issued by the company to retire the new stock. As a conclusion of law from these facts, the court held that the plaintiffs, as such adminis- trators, were entitled to judgment against the Congress and Empire Spring Company for the sum of ?13,9S0, with interest from Feb. 20, 1866, and rendered judgment accordingly. The company sued out this writ of error. It appears by a bill of exceptions that the defendant's counsel requested the court be- low to decide that the proceedings of the de- fendant in increasing its capital stock, and forfeiting the araoimt paid by the plaintiffs' intestate, were in all respects legal and valid. The court refused so to find, and ruled that the plan devised by him and the other ti'us- tees of the company was contrary to the pro- visions of the statute, against public policy, and a fraud upon stockholders not consenting thereto, and the public. It further appears that the defendant's coun- sel requested the court to decide that, inas- much as the intestate devised, counselled, and assisted in passing and adopting all the acts and resolutions for an increase of stock by the company, the plaintiffs were not entitled to recover. The comt refused so to decide, and ruled that the intestate had a right to abandon the illegal transaction to which he was a party, and that by declining to pay further calls, and demanding repayment of the payments made before the consummation of the illegal scheme, he did abandon it, and his representatives were entitled to recover. To these refusals and rulings the defendant's counsel excepted. The errors assigned here are that the court below erred in each of its refusals and rulings, and in deciding that the plaintiffs were enti- tled to recover. Francis Kernan and Charles S. Lester, for plaintiff in error. H. M. Ruggles, contra. Mr.ijJusI rustice WOODS, after stating the case, delivered the opinion of the court. The plaintiff in error claims that the plan adopted by it tojncrease its capital stock, by_ which certificatcs _as jor'f u ll-paid_ stock were to""Be-issueg^n the'pa^ TnePt of eighty per cent thereof, w as_ a gainst the law an d pub- lic policy of the^tate of New York, "and wa s, therefore, void ; that Knowlton, having been an active party in devising this scheme, and having paid his money in part execution of it, his legal representatives cannot recover the sum so paid. It is conceded by the defendants in error that the plan adopted by the company to in- crease its stock was in violation of the law of New York, and therefore void. It has been so held, in effect, by the court of appeals of the state of New York, in the case of Knowl- ton V. Spring Co., 57 N. Y. 518. We are, then, to consider whether, upon the hypothesis that the plan for the increase of the stock was illegal, there can be a re- covery upon the facts of the case as found by the circuit court. We think it clear that there was tjuly a pa*' EFFECT or ILLEGALlii 515 Ijerformanceof the iLle{,'al contract-bfitmien th£ f-nrnt^-rriy''irng3 ;itno\ vItoii JD reference to the new stuck, fur whic-E Sheeban subscribed and which he aj^reed to' transfer to Knowlton. The compauy, i^ fact, created no_ne w stock . It only pro posed to do so. To increase the stock~of the company it was not only neces- sary that the meeting of the stockholders sliuuld be called, as prescribed by the law, and a vote of two-tliirds of all tlie shares of stock shuuld be cast at the meeting; in favor of the increase, but that there should be a certiti- cate of the proceedings, showing, among other things, a complijince with the provisions of the law, and the amount of the increase of the stock, signed and verified by the affida- vit of the chairman of the meeting at which the increase was voted, and countersigned by the secretary, and such certificate should be acknowledged by the chairman and filed, as required by the first section of the act. And the law declared that "when so filed the capital stock of such corporation shall be in- creased to the amount si)ecified in such cer- tificate." It does not appear from the findings of the circuit court that any such certificate was ever made or filed. Consequently it does not appear that the steps necessary, under the law, to an increase of the stock were ever taken. Neither does It appear that _ anj scrip or c erti fi fi'^tps were pver issnpd tn th e s ubscribers to the new s t ock. So that all that was done amounted only to a proposi- tion by the company, on the one hand, to in- crease its stock, and an agreement by Knowl-| f ton to take certain shares of the new stoc] I when issued, and the payment by him of instalment of twenty per cent thereon. Then 1 was no performance of the contract whatevei \ by the company, and only a part perform- ance by Knowlton. ^ It is to be observed that the m aklng^ f the illegal contract w as malum prohib itum am i not" malum in seT There Ts~no moral turpi- tude in such a contract, nor is it of 'itself fraudulent however much it may afford fa- cilities for fraud. The question presented is, therefore, •whether, conceding the contract to be illegal, money paid by one of the parties to it in_pajt pot-formance can be recovcrea. I5e~ other party not having performed the contract qx any p.arTbf it and both parties having abo a- d oned the illegal agreement before it was c on^HTOh i'atcd. We tnmk the authorities sustain the af- firmative of this proposition. Their result is fairly stated In 2 Comyn, Cont 3G1, as follows: "Where money has been paid upon an illegal contract, it is a general rule that If the contract be exe- cuted and both parties are in pari delicto, neither of them can recover from the other the money so paid, but if the ^con tract con - tiniiao pvi-^ynfnrv nnd tbp pnrtv paying_t^e money be desirous of rescincTT ng it he ma v do ^o and~ recover back by "action of_ In- debLt^ ''^^"" flftfjiirnp"'' for money had and re- ceived. And this distinction is taken in the books that where the action is in afliriuance of an illegal contract, the object of which Is to enfuree the performance of an engage- ment prohibited by law, clearly such an ac- tion can in no case be maintained, but where the action proceeds in disaffirmance of such a contract, and instead of endeavoring to en- force it presumes it to be void and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that the plaintiff should recover." Mr. Parsons, in his work on Contracts (vol- ume 2, p. 74G), says: "All contracts which vprovide that anything shall be done which is distinctly prohibited by law, or morality, lor public policy, are void, so he who advan- jces money in consideration of a promise orj lundeilaking to do sueh a thing, may at any time before it is done rescind, the contract and prevent the thing froln being done and Recover back his money." To the same effect see 2 Add. Cont § 1412; Chit Cont 944; 2 Story, Cont § 617; 2 GreenL Ev. § 111. The views of the text-writers are sustained by a vast array of authorities, both English and American. A few will be cited. Taylor v. Bowers, 1 Q. B. Div. 201, was an action to recover property assigned for the purpose of de- frauding creditors. A verdict was rendered for the plaintiff, with leave to move to enter a verdict for the defendant A rule was obt'iined on the ground that the plaintiff could not by the allegation of his own fraud get back the goods from the defendant. The queen's bench sustained the verdict the chief justice, Cockburn, delivering the opin- ion. The defendant then appealed to the court of appeals, where the judgment was aflirmed. Both courts agreed that an illegal contract partially performed might be re- pudiated and the money paid upon it recov- ered. Lord Justice Mellish, in the court of ap- peals, said: "If the illegal transaction had been carried out the plaintiff himself, in my judgment could not afterwards have re- covered the goods. But the illegal transac- tion was not carried out; it came wholly to an end. To hold that the plaintiff is enti- tled to recover does not carrj- out the illeg;U transaction, but the effect is to put every- body in the same situation as they were be- fore the illegal transaction was determined upon, and before the parties took any stepa to can-y it out That I apprehend, is the true distinction In point of law. If money is paid or goods delivered for an illegal pur- pose, the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but if he waits till the illegal purpose is carried out, or if he seeks to enforce the 516 ILLEGALITY OF OBJECT. illegal transaction, in neitlier can he main- tain an action; the law wiU not allow that to be done." The same rule substantially is laid down in the following English cases: Lowry v. Bourdieu, 2 Doug. 452; Tappenden v. Ran- dall, 2 Bos. & P. 467; Hastelow v. Jackson, S Barn. & C. 221; Bone v. Ekless, 5 Hurl. & X. 925; Lacaussade v. White, 7 Term R. 531; Cotton v, Thurland, 5 Term R. 405; Mount T, Stokes, 4 Term R. 5G1; Smith v. Bickmore, 4 Taunt. 474. In Morgan v. Groff, 4 Barb. 524, it was held that money paid on an illegal contract, which remains executory, can be recovered back in an action founded on a disaffirmance, and on the ground that it is void. To the same effect are the following cases: Insurance Co. v. Kip, 8 Cow. (N. Y.) 20; Mer- ritt V. Millard, *43 N. Y. 20S; White v. Bank, 22 Pick, ISl; LoweU v. Railroad Corp., 23 Pick. 24. In Thomas v. City of Richmond, 12 Wall. 349, this court cites with approval the note of Mr. Frere to the case of Smith v. Brom- ley, 2 Doug. G96, to the effect that a recov- ery can be had as for money had and re- ceived when the illegality consists in the contract itself, and that contract is not exe- cuted; in such case_ th£r^ ''^ a locus D£ni- Jentiae; the dgllctu mTsi ncomplete; the con- tract may be rescinrted by either party. The rule is applied in the great majority of the cases, even when the parties to the illegal contract are in pari delicto, the ques- tion which of the two parties is the more blamable being often difficult of solution and quite immaterial. We think, therefore, that the facts of this case present no obstacle to a recovery by Knowlton's administrators of the stun paid by him on the stock which had been subscribed for by Sheehan. The law of New York does not in express terms forbid a corporation from issuing cer- tificates for full-paid stock when the stock has not been fully paid. The illegality of such an issue is deduced from several sections of the law under which the Congress and Em- pire Spring Company was organized, namely, sections 38, 40, 41, and 49. We think it is fairly inferable from the record that the trustees of the company, one of whom was Knowlton, did not know that the plan adopt- ed by them for the increase of the stock was illegal, and that when they discovered that it was forbidden by the law, and before any harm was done or could have been done, the scheme was abandoned. Under such circumstances, the rule which would pre- vent the recovery of the money paid to carry on the illegal plan would be a very harsh one, not founded on any law or public policy. It is suggested by counsel for the plaintiff In error that the court of appeals of the state of New York has in this identical suit, upon the same state of facts, adjudicated the rights of the parties, and that this court ought to consider the questions raised in this case as res judicata. The reply to this suggestion is that it no- where appears in the record that this case was ever before the court of appeals, or that it was ever decided by any court except the United States circuit court for the Northern district of New York, from which it has been brought to this court on error. We cannot consider facts not brought to our notice by the record. Judgment affirmed- .fc Mr. Justice HARLAN dissenting. This action was commenced in the su- preme court of the state of New York. The present transcript is imperfect in that it does not contain all the proceedings in the courts of the state up to the removal of the case into the circuit court of the ' United States. It is, however, conceded, in the briefs of cotinsel, that Knowlton recovered in the su- preme court a judgment which, upon a writ of error from the commission of appeals, was reversed upon the grounds stated in Knowlton v. Spring Co., 57 N. Y. 518. The learned district judge who tried the case commences his opinion, which is incorporat- ed in the transcript, with the statement that "this case comes here by removal from the state court, after a decision adverse to the plaintiff by the commission of appeals, re- versing the judgment of the supreme court in favor of plaintiff, and ordering a new trial. 57 N. Y. 518." He then proceeds to determine it upon principles of law different from those announced in that decision. Had it been again tried in the supreme couil, judgment must have been rendered against these defendants in error, because the re- versal was upon such grounds as precluded any recovery whatever by them. That deci- sion should, in my opinion, have been ac- cepted as the law of this case, although the proceedings in the commission of appeals are not set forth in the transcript. The re- ported case shows, beyond question, that it is the identical case now before us; at any rate, that it was between these parties and involved the same issues. We know that the adjudication of that court was long pri- f or to the removal of this case, and that the questions arising upon this record have been once determined by a court of competent jurisdiction in a suit between the same par- ties touching the subject-matter now in con- troversy. All this plainly appears by that decision, the legal effect of which, the de- fendants in error should not be permitted to escape by removing the case into the circuit court. Upon these grounds, and without express- ing my own views upon the propositions of law discussed in the opinion of the court, I dissent from the judgment just rendered. Ir ^^ EFFECT OF ILLEGALITY. 517 FORD V. HARRINGTON. ■j>^ (16 N. Y. 285.) Court of Appeals of New York. ISjT. This action was brought by the plaintiff a3 heir at law of James Conway to compel the defendant to convey to her lifty acres of land. The defendant was an attorney and coun- selor of the supreme court. As such he had advised Conway to assign his contract for th e purcha se of the land Jn question to him, the defoiKlan t, t o preN- ent ^Uon way^ crc-ditor frcon reaching j t Z Tt wn.^ understood between them tliat after Conway'had settled with the cred- [t pr t ; hp c^nnt rncFjhnuldJffi reassigned to him. .The defendant gave his note foi $44, and suB-j vkequently paid the balance due on the conj cract and took a conveyance to himself. About a year afterward Conway died. The plaintiff, as heir at law of Conway, tendered to the defendant what he had paid in the mat- ter, and presented to him a quit-claim deed and demanded that he execute it Upon his refusal this action was brought. Conway was an alien. The plaintiff was. also an alien when the action was brought. The case hav- ing been referred, the referee found in favor of the plaintiff. Judgment was entered ac- cordingly, and affirmed at the? general term of the supreme court. The defendant appealed to this court. M. Bumell, for appellant A. G. Rice, for respondent BOWEN, J. The judgment appealed from cannot be sustained upon the facts found by the referee, unless the relation of attorney and client, existing between the plaintiff's an- cestor and the defendant at the time of tli^ assignment of the contract in question by the former to the latter, distinguishes this case from the ordinary one of the transfer of prop- erty by a debtor, with the intent and for the purpose of defrauding creditors. The referee has found that James Conway, under whom, as his heir at law, the plaintiff claims title to the land in dispute, assigned the contract for the purchase of the land to the defendant, for the express purpose of placing it and his interest in the land under the contract, be- yond the reach of his creditors. At least such is the necessary inference from the facts found. f The general rule, that courts will, under such eircumstiinces. extend no remedy to a grantor or vendor of property to recover back / from the grantee or vendee the property thus transferred, although the transfer is without consideration. Is too well settled to be now ^called in question. But the referee has further found that, at the time of the transaction, the defendant was a practicing attorney and counselor of the su- preme court, and was acting as the attorney and counsel of Conway, and that it was in ac- cordance with and pursuant to his advice as such counsel, that the contract was assigned to him by Conway; and the referee states, as a conclusion of law, "t hat, as agaln.st an at- torney and counsel or, the law will set a side an a greement mad e, with his clicnT, by~wh !f^i property is place d 'm his hand sjokeen it out ■ Of the r each pf_the creditors of ~ine client." Courts scrutinize closely transactions betweim attorney and clieni; and conveyances and transfers of property to the former by the latter, while that relation exists, are fre(iuent- ly set aside in cases where, but for that rela- tion, they would be upheld. In such cases the law presumes that undue advantage has been taken of the confidential relation existing be- tween attorney and client; and attorneys. In order to sustain such transfers to them, have been required to show affirmatively, either that they paid an adequate consideration, or that a gratuity was intended by the client, and that to obtain it no advantage was taken of the confidential relation existing between them, and that every thing was honest and fair on their part In this case no gratuity to the attorney was intended. In fact the client intended to make no transfer of property, for although all the forms necessary to constitute an assignment of the contract were complied with, yet the assignor intended that the whole transaction should be merely formal, and at the time sup- posed that such was the fact. He did not intend to part with any bancficial interest in the__property. On the contrary, the assign- ment was made as a means of preventing his interest in the contract and in the land therein described from being applied upon the debt he owed, and of thereby enabling him to con- tinue in the beneficial use and enjoyment of the property. His object in the transaction was to benefit himself and not to confer a benefit on his attorney. For aught that ap- pears, he would, with equal willingness, have made the assignment to some other person, had he been so advised. The rule_of _c4€); and section 4 of chapter 115 ot the Laws of 1845 (Laws of 184.5. p. Qij) pro- vides that land held by the resident alien at the time of his death shall descend to the persons, although aliens, who, if citizens, would have been the heirs of the deceased had he been a citizen, and that such alien to whom lands thus descend may hold the same as against every one but the state. I am of opinion that the judgment appealed from should be affirmed. Judgment affirmed. JOHNSON, J. (dissenting). If we uphold this judgment, we must decide that the maker of an assignment, in fraud of his creditors, may recover back for his own use the transferred property, provided he choose his attorney as assignee, and executes the instrument undi-r his advice. Such a judgment would, at least, have this consequence, that future fraudulent transfers would generally be made to attorneys, and the salutary rule that the fraudulent grantor cannot undo, for his own benefit, the transfer he had made, would cease to have any practical operation in n> straining frauds upon creditors. The case of Osborne v. Williams, IS Ves. 370. upon the analogy of which this cause was decided in the supreme court, was put by the master of the rolls upon the ground that the terms which rendered the contract illegal were im- posed by the father on his son, and that the consent of the son to those terms was ob- tained by a species of moral constraint, aris- ing out of the circumstances. "He put up to sale a situation which the young man would naturally be desirous of obtaining, and could obtain only on the terms prescribed by his father." It was therefore held that the par- ties were not in pari delicto, and an account of the profits was decreed. The grantor In a fraudulent conveyance is certainly not less guilty tlian the grantee, nor is that the species of dealing, between client and attorney, as to which equity af- fords protection to the client. The judgment should be reversed and a new trial ordered. DENIO, C. J., also dissented 520 ILLEGALITY OF OBJECT. i.^ ^ WHITE T. FRANKLIN BANTI. ^ , / (22 Pick. ISl.) ^ yi Supreme Judicial Court of Massachusetts. Suf- folk and Nantucket. March Term, 1839. By an agreed statement of facts, it ap- peared, that on the lOth of February, 1S37, the plaintiff deposited with the defendants the sum of $2,000, and received from them a book containing the following words and fig- ures, to wit: "Dr. Franklin Bank, in account with B. F. WMte, Cr., 1S37, Feb. lOth. To cash depos- ited, $2,000. The above deposit to remain until the 10th day of August E. F. Bunnell, Cashier." It further appeared, that on the 7th of July, lSo7, the plaintiff brought this action against the bank to recover the money so de- posited by him, declaring on the money counts, and on an account stated- Lf the court should be of opinion, that the action could be maintained, the defendants were to be defaulted and judgment rendered for the sum of ?2,000 with interest; other- wise the plaintiff was to become nonsuit. WILDE, J. The first ground of the de- fence is, that the action was prematurely commenced. The entry in the book given to the plaintiGf by the cashier of the bank, is un- doubtedly good evidence of a promise to pay the amount of Uie deposit on the 10th day of August; and if this was a valid and legal promise this action cannot be maintained. But it is very clear, that this promise or agreement that the deposit should remain in the bank for the time limited, is void by vir- tue of Rev. St c 36, § 57, which prgvidr s that no bank shall make or issiift nny nnt^ inli, ciieck, draft, fjccp.pt^gnce. certificate, o r contractT in any form wh atever, for thp pny- lii ent" of money^ a t any future Z ^ny cf^rt/iin , or with Tnteres tT'excepting formoney tha t with may be borro wed of the co mmonwea iu other exceptions not material in the pi case. The agreement that the deposit should re- main until the 10th day of August amounts in law, by the obvious construction and meaning of it to a promise to pay on that day. This,_ therefor p, was f^r t illegal co n- tr act and a dire i^t f>^^ntrfivontinT^ of t.iip st.n1. - uEe. _ Such a promise is void; and no court will lend its aid to enforce it This is a well- settled principle of law. It was fully dis- cussed and considered in the case of Wheeler V. Russell, 17 Mass. 281, and the late chief justice, in delivering the opinion of the court, remarked, "that no principle of law is better settled, than that no action will lie upon a contract made in violation of a statute or of a principle of the common law." The same principle is laid down in Bank v. Merrick, 14 Mass. 322, and in Russell v. De Grand, 15 Mass. 39. In Belding v. Pitkin, 2 Caines, 149, Thompson, i^ said, "It is a first principle, and not to be touched, that a contract, In order to be binding, must be lawful." The same principle is fully established by the English authorities. In Shiftner v. Gordon, 12 East 304, Lord Ellenborough laid it down as a settled rule, "that where a contract which is illegal remains to be executed, the coiirt will not assist either party, in an ac- tion to recover for the non-execution of it." It is therefore very clear, we think, that no action can be maintained on the defend- ants' express promise, and that, if the plain- tiff be entitled to recover in any form of ac- tion, it must be founded on an implied prom- ise. The second objection, and that on which the defendants' counsel principally rely, pro- ceeds on the admission that the contract is illegal; and t hey_ insist that where money ha s been j3aid ^y one~ M~twTr"p"arti es^^a^e qther ^ on an TTT eggl~r gn tract, botlTbeing j^ r- ticip£g_ cnmini s^ ^o actlo n_can be main tajjied to recover it back. The rule of law is so laid down by Lord Kenyon, in Howson v. Hancock, 8 Term R. 577, and in other cases. This rule may be correctly stated in respect to contracts involving any moral turpitude, but when the contract is merely malum pro- hibitum, the rule must be taken with some qualifications and exceptions, without which it cannot be reconciled \vith many decided cases. The rule as stated by Comyn, in his treatise on Contracts, will reconcile most of the cases which are apparently conflicting. "When money has been paid upon an illegal contract, it is a general rule that if the con- tract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid; but if the contract continues executory, and the party paying the money be desirous of re- scinding it, he may do so, and recover back his deposit by action of indebitatus assump- sit for money had and received. And this distinction is taken in the books, namely, where the action is in affirmance of an ille- gal contract the object of which is to en- force the performance of an engagement pro- hibited by law, clearly such an action can in no case be maintained; but where the action proceeds in disaffirmance of such a contract, and, instead of endeavoring to en- force it, presumes it to be void and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, there it is consonant to the spirit and policy of the law that the plaintiff should re- cover." 2 Com. Cont. 109. The rule, with these qualifications and dis- tinctions, is well supported by the cases collected in Comyn and by later decisions. The question then is, whether, in conformity with these principles, upon the facts agreed, this action can be maintained. The first ground on which the plaintiff's counsel rely In answer to the defendants' objection Is, that th ere was no illegality In EFFECT OF ILLEGALITY. >21 makmg_the deposit, and thaL-tlifi, illegalit y of "tjae ti'ansu ( ■ u' < . i 'iifd^to^t he proinis e of .the Jjauii uuil i ii rity g iven for the repai'ment, that aioue Being _prohibitedby^ The leading case on this point is that of Robinson v. Bland, 2 Burrows, 1077. Tliat was an action an a bill of excliange given for money lent and for money \sou at play. By St 9 Anne, c. 14, It was enacted that all notes, bills, bonds, judgments, mortgages, or other securities for money won or lent at play, should be utterly void. The court held, that the plaintiff was not entitled to recover on the bill of exchange, but that he might recover on the money counts for tlie money lent, although it was lent at the same time and place that the other money for which the bill was given was won. The same principle was laid down in the cases of Insurance Co. v. Scott, 19 Johns. 1; Insur- ance Co. V. Caldwell, 3 Wend. 29G, and In- surance Co. V. Bloodgood, 4 Wend. 652. In these cases the decisions were, that although the nott« were illegal and void as securities, yet that the money lent, for which the notes were given, might be recovered back. The principle of law established by these deci- sions is applicable to the present case. The only doubt arises from the meaning of the word "contract," in the prohibitory statute. But taking that word in connection with the other words of prohibition, we think it equiv- alent to the promise of the bank, and that the intention of the legislature was to pro- hibit the making or issuing of any security in any form whatever, for the payment of money at any future day. The next answer to the objection of the defendants is, that although the plaintiff may be considered as being partlceps criminis with the defendants, they are not in pari to the holder ther^jf, or delivered to th(- plaintiffs. The case is thus distinguished from Allen v. Williams, 12 Pick. 297, and Bank v. Gardner, 15 Gray. 362, cited at the argument. The cotton was not of sufl5cient value to pay the draft and the balance of ac- count between the defendants and the draw- er, at the time of their receipt and sale of the cotton, and ever since, was in favor of the defendants. There is no ground therefore for implying a promise from the defendants to the plaintiffs to pay to them either the amount of the draft or the proceeds of the cotton. Tieman v. Jackson, 5 Pet 580; C^owporth- waite V. Sheffield, 1 Sandf. 416. 3 N. Y. 243; Winter v. Drury, 5 N. Y. 525; Yates v. Bell, 3 Bam. & Aid. 643. The plaintiffs did not take the draft, or make advances, upon the faith of any promise of the defendants, or of any actual receipt by them of the cotton or the bill of lading, but solely upon the faith of the drawer's signature and implied prom- ise that the defendants should have funds to meet the draft The whole consideration of the defendants' promise moved from the drawer and not from the plaintiffs. And the defendants made no promise to the plaintiffs. Their only promise to accept the draft was made to Hill, the drawer, after the draft had been negotiated to the plaintiffs; and there is no proof that the defendants authorized that promise to be shown to the plaintiffs, or that Hill, to whom that promise was made, was an agent of the plaintiffs. His relation to them was that of drawer and payee, not of agent and principaL To infer, as suggested 528 OPERATION OF CONTRACT. In belialf of the plaintiffs, that he was their agent In recelTlng the defendants' promise, so that they might sue thereon in their own name, wouid be unsupported by any facts in the case, and would be an invasion of the rules of law, which will not allow any person, who took the draft before that promise was made, to maintain an action upon that prom- ise, either as an acceptance or a promise to accept Judgment for the defendants. LIMITS OF CONTRACTUAL RELATION. 529 LAWRENCE v. FOX. (20 N. Y. 2GS.) Court of Appeals of New York. 1859. I. S. Torrance, for apijelhiut. E. P. Cbapin, for appellee. H. GRAY, J. The fust objection raised on the trial amounts to this: That tlie evidence of the person present, who heard the decLi- i-atious of Holly giving directions as to the paj-uient of the money he was then advan- cing to the defendant, was mere hearsjiy and, therefore, not competent. Had the plaintiff sued Holly for this sum of money no ob- jection to the competency of this evidence would have been thought of; and if the de- fendant hao performed his promise by pay- ing the sum loaned to him to the plaintiff, and Holly had afterward sued him for its recovery, and this evidence had been offered by the defendant, it would doubtless have been receive<.l without an objection from any source. All the defendant had the right to demand in this case was evidence which, as between Holly and the plaintiff, was competent to establish the relation be- tween them of debtor and creditor. For that pui-pose the evidence was clearly competent; it covered the whole ground and warranted the verdict of the jury. But it is claimed that notwithstanding this promise was estab- lished by competent evidence, it was void for the want of consideration. It is now more than a quarter of a century since it was settled by the supreme court of thia state — in an able and painstaking opinion by the late Chief Justice Savage, In which the authorities were fully examined and carefully analyzed — that a promise in all material respects like the one under consid- ei-ation was valid; and the judgment of that court was unanimously affirmed by the court for the correction of errors. Farley v. Cleaveland, 4 Cow. 432; s. c. in error, 9 Cow. G39. In that case one Moon owed Farley and sold to Cleaveland a quantity of hay, in consideration of which CleaveLond promised to pay Moon's debt to Farley; and the decision in favor of Farley's right to re- cover was placed upon the ground that the hay received by Cleaveland from Moon was a valid considei-ation for Cleaveland's promise to pay Farley, and that the subsisting liabil- ity of Moon to pay Farlej' was no objection to the recovery. The fact that the money advanced by Holly to the defendant was a loan to him for a day, and that it thereby became the property of the defendant, seemed to Impress the defendant's counsel with the idea that because the defendant's promise was not a trust fund placed by the plaintiff in the defendant's hands, out of which he was to realize money as from tlie sale of a chattel or the collection of a debt, the promise although made for the benefit of the plaintiff could not inure to his bene- fit The hay which Cleaveland delivered to , UOPK.SEL. CAS. CONT. — 34 Moon was not to be paid to Farley, but the debt incurred by Cleaveland for the pui-- chase of the hay, like the debt incurred by the defendant for money borrowed, was what was to be paid. That c-ase has '>een often referred to by the courts of this state, and has never been doubted as sound au- thority for the principle upheld by It. Bar- ker V. Bucklin, 2 Denio, 45; Canal Co. v, Westchester County Bank, 4 Denio, 97. It puts to rest the objection tliat the defend- ant's promise was void for want of considera- tion. The report of that case shows tliat the promise was not only made to Mooq but to the plaintiff r"^rley. In this case the promise was made to Holly and not ex- pressly to the plaintiff; and this difference between the two cases presents the question, raised by the defendant's objection, as to the want of privity between the plaintiff and defendant As early as ISOO it was an- nounced by the supreme court of this state, upon what was then regarded as the settled law of England, "That where one person makes a promise to another for the benefit of a third person, that third person maj- maintain an action upon it" Schermerhora V. Vanderheyden, 1 Johns. 140, has often, been reasserted by our coui-ts and never de- parted from. The case of Seaman v. White has occasionally been referred to (but not by the courts) not only as having some bearing upon the question now under consideration, but as involving in doubt the soundness of the proposition stated in Schermerhorn y. Vanderheyden. In that case one Hill, on the 17th of August, ISoo, made his note and pro- cured it to be indorsed by Seaman and dis- counted by the Phoenix Bank. Before the note matured and while it was owned by the Phoenix Bank, Hill placed in the hands of the defendant, Whitney, his draft accepted by a third party, which the defendant in- dorsed, and on the 7th of October, lS3o, got discounted and placed the avaUs in the hands of an agent with which to take up Hill's note; the note became due, Whitney withdrew the avails of the draft from the hands of his agent and appropriated it to a debt due him from Hill, and Seaman paid the note indorsed by him and brought his suit against \Miitney. Upon this state of facts appearing, it was held that Seaman could not recover: first for the reason that no promise had been made by Whitney to pay, and second, if a promise could be im- plied from the facts that Hill's accepted draft with which to raise the moons to pay the note, had been placed by HiU in the hands of Whitney, the promise would not be to Seaman, but to the Phcenix Bank who then owned the note; although in the course of the opinion of the court. It was stated that, in all cases the principle of which was sought to be applied to that case, the fund hadi been appropriated by an express undertaJc- ing of the defendant with the creditor. But before concludLug the opinion of the court 530 OPERATION OF CONTRACT. In this case, the learned judj^e who deliver- ed it conceded that an undertaking to pay the creditor may be implied from an arrange- ment to that effect between the defendant and the debtor. This question was subse- quently, and in a case quite recent, again the subject of consideration by the supreme court, when it was held, that in declaring up- on a promise, made to the debtor by a third party to pay the creditor of the debtor, found- ed upon a consideration advanced by the debtor, it was unnecessary to aver a promise to the creditor; for the reason that upon proof of a promise made to the debtor to pay the creditor, a promise to the creditor would be implied. And in support of this proposi- tion, in no respect distinguishable from the one now under consideration, the case ot Schermerhorn v. Vanderheyden, with many intermediate cases in our courts, were cited, in which the doctrine of that case was not only approved but aflBrmed. Canal Co. v. Westchester County Bank, 4 Denio, 97. The same principle is adjudged in several cases in Massachusetts. I will refer to but few of them. Ai-nold v. Lyman, 17 Mass. 400; Hall V. Mai-ston, Id. 575; Brewer v. Dyer, 7 Cash. 337, 340. In Hall v. Marston the court say: •'It seems to have been well settled that if A promises B. for a valuable consideration to pay C, the latter may maintain assump- sit for the money;" and in Brewer v. Dyer, the recovery was upheld, as the court said, "upon the principle of law long recognized and clearly established, that when one per- son, for a valuable consideration, engages with another, by a simple contract, to do some act for the benefit of a third, the lat- ter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement; that it does not rest upon the ground of any actual or supposed rela- tionship between the parties as some of the earlier cases would seem to indicate, but upon the broader and more satisfactory basis, that the law operating on the act of the par- ties creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded." There is a more recent case decided by the same court, to which the defendant has referred and claims that it at least impairs the force of the former cases as authority. It is the case of Mellen v. Whipple, 1 Gmy, 317. In that case one Rollins made his note for $500, payable to Ellis and Mayo, or order, and to secure its payment mortgaged to the payees a cer- tain lot of ground, and then sold and convey- ed the mortgaged premises to the defendant, by deed in which it was stated that the "granted premises were subject to a mort- gage for ?500, which mortgage, with the note for which it was given, the said Whip- ple is to assume and cancel." The deed thus made was accepted by Whipple, the mort- gage was afterward duly assigned, and the note indorsed by Ellis and Mayo to tlie plain- tiff's intestate. After Whipple received the deed he paid to the mortgagees and their assigns the interest upon the mortgage and note for a time, and upon refiising to con- tinue his payments was sued by the plaintiff as administratrix of the assignee of the mort- gage and note. The court held that the stipulation in the deed that Whipple should pay the mortgage and note was a matter exclusively between the two parties to the deed; that the sale by Rollins of the equity of redemption did not lessen the plaintiff's security, and that as nothing had been put into the defendant's hands for the purpose of meeting the plaintiff's claim on Rollins, there was no consideration to support an express promise, much less an implied one, that Whipple should pay Mellen the amount of the note. That is all that was decided in that ease, and the substance of the rea- sons assigned for the decision; and whether the case was rightly disposed of or not, it has not in its facts any analogy to the case before us, nor do the reasons assigned for the decision bear in any degree upon the question we are now considering. But it is urged that becau;e the defendant was not in any sense a trustee of the property of Holly for the benefit of the plaintiff, the law will not imply a promise. I agree that many ot the cases whei-e a promise was implied were cases of trusts, created for the benefit of the promisor. The case of Pelton v. Dickinson, 10 Mass. 287, and others that might be cit- ed are of that class; but concede them all to have been cases of trusts, and it proves nothing against the application of the rule to this case. The duty of the trustee to pay the cestui que trust, accoi-ding to the terms of the trust, implies his promise to the latter to do so. In this case the defendant, upon ample consideration received from Holly, promised Holly to pay his debt to the plain- tiff; the consideration received and the promise to Holly made it as plainly his duty to pay the plaintiff as if the money had been remitted to him for that purpose, and as well implied a promise to do so as if he had been made a trustee of property to be con- verted into cash with which to pay. The fact that a breach of the duty imposed in the one case may be visited, and justly, with more serious consequences titan in the other, by no means disproves the payment to be a duty in both. The principle illustrated by the example so frequently quoted (which concisely states the case in hand) "that a promise made to one for the benefit of an- other, he for whose benefit it is made may bring an action for its breach," has been ap- plied to trust cases, not because it was ex- clusively applicable to those cases, but be- cause it was a principle of law, and as such applicable to those cases. It was also in- sisted that Holly could have discharged the defendant from his promise, though it was intended by both parties for the benefit of the plaintiff, and, therefore, the plaintiff was not entitled to maintain this suit for the LIMITS OF COXTRACTUAL KELATION. 551 recovery of a demand over which he had no control. It is enough that the plaintiff did not release the defendant from his promise, and whetlier ho could or not Is a question not now necessarily involved; but if It was, I think it would be found difficult to maintain the right of Holly to discliarge a judgment recovered by the plaintiff upon confession or otherwise, for the breach of the defendant's promise; and if he could not, how could he discharge the suit before judgment, or tne promise before suit, made as it was for the plaintiff's benefit and In accordance with legal presumption accept- ed by him (Beriy v. Taylor, 5 Hill, 577-r)S4 et seq.), until his dissent was shown? The cases cited and especially that of Farley V. Cl6aveland, established the validity of a parol promise; it stands then upon the foot- ing of a written one. Suppose the defend- ant had given his note in which for value received of Holly, he had promised to pay the plaintiff and the plaintiff had accept- ed the promise, retaining Holly's liability. Very clearly Holly could not have discharged that promise, be the right to release the defendant as it may. No one can doubt that he owes the sum of money demanded of him, or that in accordance with his promise it was his duty to have paid it to the plaintiff; nor can it be doubtetl that whatever may be the diversity of opinion elsewhere, the ad- judications in this state, from a very early period, approved by experience, have estab- lished the defendant's liability; if, therefore, it could be shown that a more strict and teclmically accui-ate application of the rules api)lied, would lead to a different result (wliich I by no means concede), the effort should not be made in the face of manifest justice. The judgment should be affirmed. JOHNSON, C. J., and DENIO, J., based their judgment upon the ground that the promise was to be regarded as made to the plaintiff through the medium of his agent, whose action he could ratify when it came to his knowledge, though taken without his being privy thereto. COMSTOCK, J. (dissenting). The plaintiff had nothing to do with the promise on which he brought this action. It was not made to him, nor did the consideration proceed from him. If he can maintain the suit, it is because an anomaly has foimd its way Into the law on this subject. In general, there must be privity of contract. The party who sues upon a promise must be the prom- isee, or he must have some legal interest in the undertaking. In this case, it is plain that Holly, who loaned the money to the defendant, and to whom the promise in ques- tion was made, could at any time have claimed that it should be performed to him- self personally. He had lent the money to the defendant, and at the same time directed the latter to pay the sum to the plaintiff, lliis direction he could countermand, and if he liad done so, manifestly the defendant's promise to pay according to the direction would have ceased to exist. The plaintiff would receive a benefit by a complete exe- cution of the arrangement, but the arrange- ment itself was between other parties, and was under their exclusive control. If the defendant had paid the money to Holly, his debt would liave been disdiarged thereby. So Holly might have relea.sed the demand or assigned it to another person, or the parties might have annulled the promise now in question, and designated some other creditor of Holly as the party to whom the money should be paid. It has never been claimed that in a case thus situated the right of a third person to sue upon the promise rested on any sound principle of law. We are to iucjuire whether the rule has been so estab- lished by positive authority. The cases which have sometimes been sup- posed to have a bearing on this question are quite numerous. In some of them, the dicta of judges, delivered upon very slight con- sideration, have been referred to as the de- cisions of the courts. Thus, in Schermer- hom V. Vanderheyden, 1 Johns. 1-40, the court is reported as saying: "We are of opinion that where one person makes a promise to another, for the benefit of a third person, that third person may maintain an action on such promise." This remark was made on the authority of Button v. Foole, 'Vent 31S, 332, decided in England nearly two himdred years ago. It was, however, but a mere re- mark, as the ease was determined against the plaintiff on another groimd. Yet this decision has often been referred to as au- thority for similar observations in later cases. In another class of cases, which have been sometimes supposed to favor the doctrine, the promise was made to the person who brought the suit, while the consideration proceeded from another; the question con- sidered being, whether the promise was void by the statute of frauds. Thus, in Gold v. I'hillips, 10 Johns. 412, one Wood was in- debted to the plaintiffs for services as at- torneys and counsel, and he conveyed a farm to the defendants, who. as part of the consideration, were to pay tliat debt. Ac- cordingly, the defendants wrote to the plain- tiffs, informing them that an arrangement had been made by which they were to pay the demand. The defense was, that the promise was void within the statute, be- cause, although in writing, it did not ex- press the consideration. But the action was sustained, on the ground that the undertak- ing was original and not collateral. So in the case of Farley v. Cleaveland, 4 Cow. 432, 9 Cow. G30. the facts proved or offered to be proved were, that the plaintiff held a note against one Moon; that Moon sold hay to the defendant, who in consideration of that sale promised the plaintiff by parol to OrERATION OF CONTRACT. pay the note. The only question was, whether the statute of frauds applied to the case. It was held by the supreme court, and afterward by the court of errors, that it did not Such is also precisely the doc- trine of Ellwood V. Monk, 5 Wend. 23o, where it was held that a plea of the statute of frauds to a count upon a promise of the defendant to the plaintiff, to pay the latter a debt owing to him by another person, the promise being founded on a sale of prop- erty to the defendant by the other person, was bad. The cases mentioned and others of a like character were referred to by Mr. Justice Jewett, in Barker v. Bucklin, 2 Denio, 45. In that case the learned justice considered at some length the question now before us. The authorities referred to were mainly those which I have cited, and others upon the statute of frauds. The case decided nothing on the present subject, because it was determined against the plaintiff on a gi-ound not involved in this discussion. The doctrine was certainly advanced which the plaintiff now contends for, but among all the decisions which were cited, I do not think there is one standing directly upon It. The case of Arnold v. Lyman, 17 Mass. 400, might perhaps be regarded as an exception to this remark, if a different interpretation had not been given to that decision in the supreme court of the same state where it was pronounced. In the recent case of Mfllen V. Whipple, 1 Gray, 317, that deci- sion is understood as belonging to p class where the defendant has in his ^ands a trust fund, which was the foundation of the duty or promise on which the suit is brought The cases in which some trust was in- volved are also frequently referred to as au- thority for the doctrine now in question, but they do not sustain It If A. delivers mpney or property to B., which the latter accepts upon a trust for the benefit of C, the latter can enforce the trust by an ap- propriate action for that purpose. Berly v. Taylor, 5 Hill, 577. If the trust be of mon- ey, I think the beneficiary may assent to it and bring the action for money had and re- ceived to his use. If It be of something else than money, the trustee must account for It according to the terms of the trust, and upon principles of equity. There Is some authority even for saying that an ex- press promise founded on the possession of a trust fund may be enforced by an action at law in the name of the beneficiary, al- though it was made to the creator of the trust. Thus, in Comyn, Dig. "Action on the Case upon Assumpsit," B, 15, it is laid down that If a man promise a pig of lead to A., and his executor give lead to make a pig to B., who assumes to deliver It to A., an as- sumpsit lies by A. against him. The case of Delaware & H. Canal Co. v. Westchester County Bank, 4 Denio. 97, involved a trust because the defendants had received from a third party a bill of exchange under an agreement that they would endeavor to col- lect it, and would pay over the proceeds when collected to the plaintiffs. A fund received under such an agreement does not belong to the person who receives It. He must account for it specifically; and per- haps there is no gross violation of principle In permitting the equitable owner of it to sue upon an express promise to pay it over. Having a specific interest in the thing, the undertaking to account for it may be regard- ed as in some sense made with him through the author of the trust. But further than this we cannot go without violating plain rules of law. In the case before us there was nothing in the nature of a trust or agency. The defendant borrowed the mon- ey of Holly and received it as his own. The plaintiff had no right In the fund, legal or equitable. The promise to repay the money created an obligation in favor of the lender to whom it was made and not in favor of any one else. I have referred to the dictum In Scher- merhorn v. Vanderheyden, 1 Johns. 140, as favoring the doctrine contended for. It was the earliest in this state, and was founded, as already observed, on the old English case of Dutton v. Poole, Vent 318. That case has always been referred to as the ultimate authority whenever the rule in question has been mentioned, and it de- serves, therefore, some further notice. The father of the plaintiff's wife being seized of certain lands, which afterward on his death descended to the defendant, and being about to cut £1,000 worth of timber to raise a por- tion for his daughter, the defendant prom- ised the father in consideration of his for- bearing to cut the timber, that he would pay the said daughter the £1,000. After verdict for the plaintiff, upon the issue of non-as- sumpsit, it was urged in arrest of judgment that the father ought to have brought the action, and not the husimnd and wife. It was held, after much discussion, that the action would lie. The court said: "It might be another case if the money had been to have been paid to a stranger; but there is such a manner of relation between the father and the child, and it is a kind of debt to the child to be provided for, that the plaintiff is plainly concerned." We need not criticise the reason given for this decision. It Is enough for the present purpose, that the case is no authority for the general doc- trine, to sustain which it has been so fre- quently cited. It belongs to a class of cases somewhat peculiar and anomalous, in which promises have been made to a parent, or person standing in a near relationship to the person for whose benefit it was made, and in which, on account of that relationship, the beneficiary has Ik'CU allowed to main- tain the action. Ilegarded as standing on any other ground, they have long since ceased to be the law in England. Thus.. LIMITS OF CONTRACTUAL RELATION. >ii3 In Crow V. Rogers, 1 Strange, 502, one Hardy was indebted to the plaiutiO: in the sum of £70, and upon a discourse between Hardy and the defendant, it was agreed that the defendant should pay that debt in consid- eration of a house, to be conveyed by Hardy to him. The plaintiff brought the action on that promise, and Button v. Poole was cit- ed In support of it. But It was held that the action would not lie, because the plain- tiff was a stranger to the transaction. Again, In Price v. Easton, 4 Barn. & Adol. 433, one William Price was indebted to the plaintiff in £13. The declaration averred a promise of the defendant to pay the debt, in consideration that "William Price would work for him, and leave the wages in his hands; and that Price did work according- ly, and earned a large sum of money, which he left in the defendant's hands. After ver- dict for the plaintiff, a motion was made in arrest of judgment, on the ground that the plaintiff was a stranger to the consideration. Dutton V. Poole, and other cases of that class, were cited in opposition to the mo- tion, but the judgment was arrested. Lord Demnan said: "I think the declaration can- not be supported, as it does not show any consideration for the promise moving from the plaintiff to the defendant." Littlodale, J., said: "No privity Is shown between the plaintiff and the defendant. The case is precisely like Crow v. Rogers, and must be governed by It." Taunton, J., said: "It Is consistent with all the matter alleged in the declaration, that the plaintiff may have been entirely Ignorant of the arrangement be- tween William Price and the defendant." Patterson. J., observed: "It Is clear that the allegations do not show a right of action in the plaintiff. There Is no promise to the plaintiff alleged." The same doctrine is recognized in Lilly v. Hays, 5 Adol. & E. 548, and such Is now the settled rule in England, although at an early day there was some obscurity arising out of the case of Dutton V. Poole, and others of that pe- culiar class. The question was also Involved in some confusion by the earlier cafics in Massa- chusetts. Indeed,' the supreme court of that state seem at one time to have made a nearer approach to the doctrine on which this action must rest than the courts of this state have ever done. 10 Ma.ss. 287; 17 Mass. 400. But In the recent case of Mel- lon v. Whipple, 1 Gray, 317, the subject was carefully reviewed and the doctrine utterly overthrown. One RoUin was Indebted to the plaintiff's testator, and had secured the debt by a mortgage on his land. He then conveyed the equitj' of redemption to the de- fendant, by a deed which contained a clause declaring that the defendant was to assume and pay the mortgage. It was conceded that the acceptance of the deed with such a clause in It was equivalent to an express promise to pay the mortgage debt; and the question was, whetlier the mortgagee or his representative could sue on that undertak- ing. It was held that the suit could not be maintained; and in the course of a very careful and discriminating opinion by Judge Metcalf, It was shown that the cases which had been supposed to favor the action be- longed to exceptional classes, none of which embraced the pure and simple case of an attempt by one person to enforce a promise made to another, from whom the considera- tion whoUy proceeded- I am of that opin- ion. The judgment of the court below should, therefore, be reversed, and a new trial granted. GROVER, J^ also dissented. Judgment affirmed- '53^. OPERATION OF CONTRACT. , ^ R^ PPLYE V. RACIXE SEEDER CO. (44 N. W. 363, 79 Iowa, 220.) Supreme Court of Iowa. Jan, 31, 1S90. Appeal from district court, Polk county: Josiah Given, Judge. Action for breach of contract in the sale of certain seeders, in which the court, with- out the intervention of a jury, found the following' facts : "First. That prior to Octolier 14, 1SS4, the firm of Young- Bros., the plaintiff's as- signors, were a copartnership engaged principally as manufacturers' agents in sale of agricultural implements throughout the state of Iowa, having. their place of busi- ness at the city of Des Moines, in said state. (Second. That on the IDth day of August, 1SS4, the Racine Seeder Company, of Racine, "Wis., the defendant herein, made with said Young Bros, the contract intro- duced in evidence, and marked 'Exhibit A,' as alleged in plaintiff's petition. Third, That by said contract the defendant sold to Young Bros, nine hundred Strowbridge Broadcast sowers, for which payment was to be made by the promissory notes of Young Bros, as imi)lements were delivered, and in consideration for such purchase the defendant granted to said firm the exclusive privilege of selling said implements in the western half of the state of Iowa. Young Bros, were to canvass said territory, and solicit written orders for said Strowbridge sower, in the name of defendant, using blank orders prescribed by it; and the or- ders thus taken were to be turned over to the defendant, and thereupon the imple- ments were to be shipped by the defend- ant to the various purchasers, at the times stated in such orders. Young Bros, were further required to take promissory notes in settlement for implements thus sold, when sales were not for cash ; and such notes were to be turned over to the defendant, in addition to the contracts be- fore mentioned, as collateral security for the notes of Young Bros. If implements were sold for cash, the same was to be im- mediately applied by Young Bros, on the purchase price of the implements contract- ed for. Fourth. That, upon the faith of the above contract, Young Bros, proceeded to canvass the territory assigned them, taking orders forthe said implements, and •turning them over to defendant, and oth- erwise performing their part of said con- tract, and up to the 14th of October, 1SS4, had sold about three hundred of said im- plements, at prices varying from $16.50 to $18,75. Said contracts were identical in form with Exhibit A, hereto attached. Fifth. That on the 14th day of October, 1884, the said Young Bros, made a general assignment for the benefit of creditors to one Isaac Henshie, who continued to per- form the duties of said assignee until his death, on December 8, 18S4; that the rec- ord of the instrument found on pages Nos, 10, 11, 12, and 13 of book No. 154 of Chattel Mortgage Records, in recorder's office of Polk county, Iowa, introduced in evidence, is a true copy of said general assignment; that by said assignment all rights under said contract of Young Bros, with defend- ant passed to said assignee; that the plain- tiff in this cause is the successor in ofiice to said Isaac Henshie as assignee of said Y^oung Bros., duly appointed by the ciiTuit court of Polk county, Iowa, on or about the 13th day of December, 1884. Sixth. That on the 5th day of November, 1884, the defendant sent to Young Bros.' recent place of business, by messenger, the letter of that date set out In defendant's answer herein, giving notice of its refusal to go on with the contract before mentioned; that the defendant intended by the notice given in said letter to put an end to the contract entirely, and the same was understood and treated by the assignee of Y'oung Bros, as BO intended ; that soon after the service of the above notice the defendants entered this same territory which had been grant- ed by said contract to Young Bros., made new contracts, in its own name, with some of the persons with whom Y^oujig Bros, had contracted for the sale of said imple- ments, and sold large numbers of the same to divers other persons in said territory. Seventh. That, as soon as practicable after entering upon his duties as assignee of said Young Bros. 'estate, the said Isaac Henshie sought legal advice with reference to his rights as such assignee under said con- tract, and was advised that he had a right under the law to go on with the same, and require performance thereof on the part of defendant; and there was evidence tend- ing to show that he thereupon procured an agent to further canvass the territory named in saidcontract, and was otherwise arranging to go on with the same, when he received said defendant's letter of No- vember 5, 1884, giving notice of its refusal to perform said contract. Such evidence was, in substance, that said assignee called in from the road one William Gracey, who had previously been employed by Young Bros, to sell said Strowbridge sower, the goods handled by Young Bros., in said ter- ritory; that said Gracey was subsequent- ly in the city; and that the account-book kept by the assignee showed an account with William Gi*acey, in which appeared the following entry: "October 20, 1884, Commenced work at sixty dollars per month and expenses;" that said Gracey received money from said assignee, and subsequently took the two orders for thir- ty-five of said Strowbridge sowers, which were introduced in evidence, and marked 'Exhibit B,' (22 and 23,) but this was no evidence that the defendant had knowledge of these matters; that at the time said let- ter of November 5, 1884, was received from the defendant said assignee had not had a reasonable time in which to perfect ar- rangements for going on with said con- tract. Eighth. That said Strowbridge I3roadcast sower is a patented article, of which defendant was the sole manufactur- er. About the month of February or March, 1885, however, a similar sower was put up- on the market by the Joliet Wire Com- pany, of Joliet, 111., at less than this con- tract price; but this was considered by the defendant to be an infringement on the Strowbridge patent. Ninth. That at no time has defendant either made or ten- dered to plaintiff, or to his predecessor in office, the said Isaac Henshie, or to said ASSIGNMENT. 53^ Young Bros., any compensation whatever for the labor or nionoyw expendod by them, or for any portion of their performance of said contract, or made or offered in any manner to place the said persons, or either of tliern.j/i statu quo. Tenth. Thatdeiend- ant never delivered, nor tendered a deliv- ery of, any portion of said nine hundred iStrowbridjie sowers sold to said Young Bros., although such delivery was demand- ed, to the number of said implements named in said orders turned over to said defendant, if such orders constituted a de- mand ; and said defendant refused to deliv- er any portion of said implements, or to perform its part of said contract in any re- spect whatever. Butno demand was made upon defendant for i)erformance of said contract, unless the delivery of said orders constituted such demand. Eleventh. Tiiat neither the plaintiff nor his predecessor in ofliee, the said Isaac Henshie,ever tendered the defendant any security in lieu of the promissory notes of Young Bros, agx'eed to be made, or made application to the court for authority to carry out said con- tract, or to require said defendant to ac- cept any security in lieu of said notes, or gavedcfendant any notice that he intended to carrj^ out said contract. " As a conclusion of law, the district court found with the defendant, and the plain- tiff appeals. Cummins & Wrischt and N. B. Raymond, for appellant. Lehman & Park, for appel- lee. GRANGER, J. I. The point receivingthe principal attention in argument Is as to the effect on the contract of the insolvency of Young Bros., and the assignment for the benelit of their creditors. Perhaps it may be better stated as a query, thus: Was the insolvency and assignment a jus- tification for the defendant company in re- scinding the contract? The answer to this question is a practical determination of the case, as to the plaintiffs cause of ac- tion. Its consideration has led counsel for appellant to consider at some length the law as to the assignment of contracts, and It is urged that the assignment in ques- tion is within itscontemyjlation. A salient feature of thecase isthe manner or method of payment by Young Bros, for the seed- ers. The contract was for t)00 seeders, to be delivered on the orders of Young Bros., for which the firm was to give its notes. Y'oung Bros, were to deliver the seeders to purchasers from them, and settle for the same either by receiving cash or notes. If cash, it was to be turned over to defend- ant, to apply on the notes of Y'oiing Bros. If notes, they were to be turned over to defendant as collateral security for the notes already given by Young Bros. It is said in argument that the district court held the rescission sealed because, after the assignment, Young Bros, were not in a position to give their notes in pursuance of the terms of the contract; from which we infer this view of the court : That the defendant was entitled, under the con- tract, to the notes of Young Bros., aided collaterally by the notes taken by them in the sales of the seeders. As between de- fendant and Young Bros., nothing less could be regarded as a compliance with the c(jntract. It could hardly- be claimed that Young Bros., in a settlement for the maehines, could substitute in lieu of their note that of another person or firm, re- gaidless of the question of solvency or value, even though aided by the collateral notes as agreed upon, for the sole and con- clusive reason that their engagements are for notes signed by them. Such a rule needs no elaboration. The argument, then, leads us to the query, without reference to the statutory assigriinent for the benelit of credilor.s, could Young Bros, have so assigned the contract, without the consent of defend- ant, as tosubstituteanotherin their stead for pei-formance, and whose note must be accepted in lieu of theirs by the defendant? This leads us to consider the autliorities cited. Counsel for appellant quotes from Code, § 2084, as follows: "Insti-uments in writing, by which the maker promises * * * to pay or deliver any property or labor, or acknowledges any monc}' or labor or property to be due, are assignable by indorsement thereon, or by other writ- ing; and the a.ssignee shall have a right of action in his own name." Counsel then say: "Under the very broad language of this provision, this court has held that all contracts are assignable, even in cases where, by the terms of the instrument, its assignment is prohibited." And reference is made to Moorman v. Collier. 32 Iowa, 138, and Bank v. Carpenter, 41 Iowa, 518. Sec- tion 20*>4 is a part of thechar)teron "Notes and Bills;" and the section deals only with instruments in wi-iting, and tells how they may be transferred, and who may sue thereon. In both of the cases to which refer- ence is made the court had under consider- ation the validitj- of the transfer of an in- strument in writing for the payment of money; and the language used in e.ich case is not too broad, if properly limited by the subject of its application. In Moorman v. Collier, the language relied on is that "all instruments, under our statute, are assign- able;" and the statement ttikes as author- ity Revision, § 179G, which corresponds with section 20^4 of the Code, and the language of the case is only as to " instruments." It does not say, "all coTitracts." The case evidently means all instruments for the payment or deli very of money, property, or labor, as specified in the si^ction and cliap ter. The case of Bank v. Carpenter was an action on a written guarantj-, which was held assignable; aad in its disrussion this language is used : " Generally, by the com- mon law, a guaranty is not negt)tiable. or in any maTinertransiorable, so as to enable the a-ssiguee to maintain an action there- on. * * • But under our statutes this and every other kind of contract is assign- able." It cites for support Code, §;; 2os2- 20>7, inclusive; and it is said in the opinion that "even in a case where, by the terms of the instrument, its assignment is pro- hibited, it may be assigned. " The sections referred to are the six first sections in the chapter on" Notes and Bills," which chap- ter, of course, has reference to other instru- ments than notes and bills, and the pro- visions, in brief, as to assignments are that a party entitled to recover on an in- 5o6 OPERATION or CONTRACT. strument or an open account may transfer his ripht of recovery to another: but there Is nothing in the language of the chapter to indicate a legislative intent to authorize a party to a contract by assignment to transfer his obligations to perform to a third party, and thus effect liis release, ■without the consent of his obligee. Let us suppose that A. contracts in writing to render service, as a traveling salesman, to B., for a si^ecilied compensation. Under the laM', if B. shall be indebted to A. on the contract, A. may assign his claim. But suppose A. should assign his contract to C, whereby C. was to receive the pay and render the service. Must B. accept that? B. has contracted for the services of A. He is entitled to that; and, before B. can be required to pay either to A. or his assigns, he must have what hecontracted for. The law will permit a person to assign what is his, either in possession or by right of action, butnot his obligations to another; and such is the substiance of the provis- ions of the statutes on the subject of as- signments referred to. Thus we think that Young Bros, could not, without ref- erence to the assignment for the benefit of creditors, have so assigned the contract in question, without the consent of the de- fendant, as to have required defeuhe assignee could have done if defendant, after insolvency, had been willing to deliver the seeders. It may be conceded that the con- tract could thus have been executed by the a.ssignee on behalf of Young Bros. But the query is, had the defendant the right to refuse delivery of the seeders after in- solvency and assignment? In other words, had it the right to terminate the contract? If it were a case of insolvency without the assignment, we think it would be conceded on authority that the obligation to deliver could only be on a tenderofacash payment in lieu of notes agreed upon. Pardee v. Kan- ady, 100 N. Y. 121, 12 N. E. Rep. 885. Does the fact of the assignment affect the rights of the defendant? The reason of the rule in cases of insolvency is too manifest to need explanation, A person who contracts to deliver property on a credit, in antici- pation of a solvent purchaser, ought not to be required to deliver it after insolv- ency, which is a practical confession by the purchaser of his inability to comply with the terms of the contract. If to the fact of insolvency is added that of an assignment for the benefit of creditors, why should the rule be changed? If the delivery is excused in case of insolvencj' because the property will not be paid for.thesame reasons exist for excusing the delivery after assignment. If the insolvent did not possess a right to enforce the contract except by cash pay- ment, he could convey no greater right to his assignee. The argument deals with the question of the right of appellant to a de- livery of the seeders upon cash payment therefor. To our minds, the record does not present the question for consideration. The contract was not to pay cash, but to settle by note. After insolvency defendant was not required to anticipate a readiness for cash payment; and, if either Young Bros, or plaintiff desired to make such pay- ment, a tender to that effect should have been made. Soon after the assignment, de- fendant, as it should, gave notice that be- cause of the insolvency' and dissolution pf the partnership the contract was rescinded. This notice was to Young Bros. If the as- signee then desired to pay in cash, and have the seeders delivered, the proposition or tendershould have been made. Butneither the pleadings in the case, nor the findings of the court, deal Avith this question. The case in the district court seems to have been tried upon an issue as to the right of the assignee to carry out the contract by giving his note in lieu of that of Young Bros. The pleadings and findings have to do with a willingness on the part of the assignee to carry out the contract; but it appears only to have been a carrying out of the contract as Young Bros, were au- thorized to do, and not by payrnents in cash. A reference to the elcA^enth finding shows that the assignee has never in any manner indicated to defendant a purpose or desire to secure or perform the contract. Insolvency, in such cases, implies an ina- bility to perform, on which the defendant might rely until otherwise assured. Appellant contends, with much zeal, that the mere fact of insolvency does not put an end to the contract of sale; and several authorities ai-e cited in support of the rule. It is not necessary for us to state an opinion on a state of facts so broad. The case In re Steel Co., 4 Ch. Div, 108, cited by appellant, bears upon the question of when the facts will justify a seller on credit in refusing to deliver because of the subse- quent insolvency of the purchaser. The facts in that case are that the Carnforth Iron Company, in October, 1874, contracted to supply iron to be delivered monthly, and to be paid for in installments, but on credit. The installments were delivered till in February, 1875, when the purchasing company called a meeting of its creditors, and said it was carrying on business at a loss, and was short of capital, and asked for an extension of time, which the credit- ors refused. The selling company then re- fused to deliver the iron except upon cash payments, and the purchasing company then rescinded the contract. The selling company then asked for damage, whicli the court held could not be recovered; holding that there was no such declaration of insolvency as to justify the selling com- pany in refu.sing to deliver. The syllabus of the case, which appears to be supported by the opiuion, deduces a rule as follows: "In order to justify the vendors, in such a case, in exercising their right of refusal to deliver, there must be such proof or admis- ASSIGNMENT. 537 eion of the Insolvency of the purchasers at the time as amounts to a declaration of intention not to pay for the goods. " The case does not appear to be an authority against the right of refusal to deliver where the fact of insolvency exists, and is so evidenced as to amount to a dec-laied purpose not to pay. It is the fact of the insolvency that Beema to be the turning point in the case, and that would surely seem to be the reasonable rule. The case of Morgan v. Bain, L. R. 10 C. P. 15, also cited by appellants, was one for the deliv- ery of iron on credit; and the purchasers became insolvent. Lord Colkridge, C. J., in his opinion, said: "It is not disputed tliat upon the occurrence of insolvency the vendor would not be bound to deliver to the insolvent purchaser an installment of the iron becoming due, without a tender of the price. " Brett, J., in the same case, said, without commitang himself to the tlieory that the mere fact of insolvency would pci se p'jt an end to the contract, that such fact, with that of notice to the seller of the insolvency, would justify an as- sumption by the seller that the purchaser intended to abandon the contract. The notice upon which he relied, and gave his adherence to the holding in that case, waa the commencement of insolvent proceed- ings under the bankrupt act. In this case the fact of the insolvency is unquestioned, and a like notice is given by an insolvent proceeding for the benefit of creditors. Hence it seems the defendant, in this case, is within any of the rules cited. Other au- thorities cited by appellant are not more favorable to his position. 2. Defendant presented a counter-claim, based on an open account alleging a bal- ance due of $27.98, as to which the court established a claim against the estate of Young Bros, for $27, based on the follow- ing finding of facts: " Twelfth. On defend- ant's counter-claim, the court finds that defendant received orders from Young Bros, for the goods mentioned in the ac- count under dates September 5, 6, 8, 15, and 17, 18S4; that these orders were treat- ed in the usual way, the usual directions given for shipping, and the goods charged on the books to Young Bros. ; that both of Young Bros, were on the witness stand, and neither of tliein denied having received the goods; that, the balance of defendant's counter-claim not beiug denied, the de- fendant should recover the sum of three hundred and twenty-seven and ninety-eight one-hundredths dollars, less the sum of three hundred dollars due the plaintiff for commission earned by Young Bros, under thecontractof LS'vj, declared on in plaintiff's petition." It is urgi-d that tlie proofs are not sufficient to sustiun the finding. The argument concedes a practical disjjute in the testimony, and the finding has the force of a verdict by the jury. The evi- dence is such that we cannot interfere, 3. It is next said that it was error to en- ter a personal judgment against ttie as- signee. The assignment is in these words: "The court erred iu rendering a personal judgment against the plaintiff herein for the balance due upon defendant's counter- claim, for the reason that such judgment is contrary to law and the evidence. Said defendant was entitled only to the estab- lishment of his claim as a creditor of said estate." The assignment is not sustained by the record. The judgment of the court is merely the establishment of a claim against the estate. It is not a personal judgment. It would only be su bject to pro rata payment, like other claims. The wording of the judgment is "that such be andis hereby established asa claim against the estate of Young Bros., and against the eaid Eapplye as their assignee. " These words have no other meaning than the es- tablishment of the claim. It would ap- pear that appellant has based this assign- ment rather upon statements in the ab- stract with reference to the judgment than upon record of the judgment as copied in the abstract. Affirmed. 0PERATI0:5( OF CONTRACT. COOLIDGE V. RUGGLES. (15 Mass. 3S7.) Supreme Judicial Court of Massachusetts. Suffolk and Nantucket. 1819. Assumpsit on the following writing, viz.;— "Boston, October 1, 1S12. "For value received, I promise to pay the bearer hereof, six months after date, nine hundred and eighty dollars, provided the ship Mary arrives at a European port of dis- charge, free from capture and condemna- tion by the British. "Samuel Ruggles." At the trial before Jackson, J., at the sittings here, after the last March term, it appeared that the said promise was made to one W. S. Skinner, the consideration where- of was a certain document, known by the name of "a Sawyer license," which was in- tended for the protection of merchant ves- sels of the United States from capture by British cruisers, war then existing between the United States and Great Britain; and that, about two years after receiving the said note, the said Skinner transferred and delivered the same, with other effects, to the plaintiff, to be by him collected and passed to the credit of Skinner, in an account then open between him and the plaintiff, and upon which Skinner was indebted to the plaintiff. The signature of the defendant was admitted, and the plaintiff proved that the said ship Mary, mentioned In the said note, arrived at a Eiiropean port of dis- charge, and there delivered her cargo in safety, without any capture or condemna- tion whatsoever. A verdict was returned for the plaintiff, under the direction of the judge; and the defendant tendered a bill of exceptions as at common law, which was sealed by the judge. The questiou chiefly insisted on at the argument, and which alone was consid- ered by the court, was, whether the plaintiff could maintain the action, as assignee of the note sued. Mr. Hubbard, for plaintiff. The Solicitor General and Mr. Cooke, for defendant. PARKER, C. J., delivered the opinion of the court. The only question to which we have turned our attention in this case, is, whether the written promise declared on is negotiable in its nature, so that an action may be maintained upon it in the name of the plaintiff, who is assignee. And we are all of opinion that it is not so negotiable, on account of the contingency on which the payment of the money is made to depend- All promises to pay money, being at com- mon law choses in action, were unassign- able. It is only by virtue of the statute of 3 & 4 Anne, c. 9, that certain descriptions of them are assignable, so as that the prop- erty and the right of action vest in the as- signee. The paper declared on does not come with- in the description of notes made assignable by that statute. For it has been declared by frequent judicial decisions, that a note or bill, to attain that character, must be pay- able in money absolutely. A note or bill payable to bearer stands upon the same ground as a note payable to order. The only difference is in the mode of transfer. The latter must be by endorsement; the former may be by delivery; but both must contain a promise to pay money uncondition- ally. The cases which show that an action may be maintained by an assignee, in his own name, are all where there has been, after the assignment, a promise to pay to the as- signee; and to this effect the case of Fen- ner v. Mears, 2 W. Bl. 1269, is unquestion- ably good law; and several cases have been decided by this court upon the same princi- ple. In this case, no promise is shown to pay to the assignee. Cases were cited to show that the promise in this case is assignable in equity. But the difference between that, and an assign- ment under the statute of Anne, Is too well known to need explanation. The verdict is set aside and a new trial granted- /v V .X i ASSIGNMENT. i39 WALKER et al. v. BROOKS ct aL (125 Mass. 241.) Supreme Judicial Court of Massachusetts. Worcester. Aug. 31, 1878. G. F. Hoar aud F. T. Blackiuer, for plain- tiffs. J. J. Storrow, for defendants. GRAY, C. J. This bill was filed May 21, 1877, by Joseph H. Walker and Georf^e M. Walker, copartners, against James W. Brooks and Horace H. Bigelow. The material alle- gations of the bill are as follows: 1st. That on March 21, 1872, the defend- ant Bigelow executed to the two plaintiffs a lease of and license to use a certain patented machine for compressing heels for boots }>nd shoes, for which the plaintiffs were to oav him a royalty of ten cents, or, in case of their rendering true accounts to him monthly, the sum of one-half cent, for each pair of heels thereby compressed. 2d. That, at the same date, Bigelow enter- ed into an agreement with Joseph H. Walker, one of the plaintiffs, to pay him monthly for certain services in introducing the machine to the public (which he afterwards performed) sums equal to those to be paid by the plain- tiffs to Bigelow under the lease and license from him. 3d. That Bigelow has assigned each of these contracts to the other defendant Brooks, who has become in equity entitled to all the ad- vantages thereof and to receive all sums of money due or to become due from the plain- tiffs under the same, and has become in eq- uity bound to perform all the obligations ex- pressed or implied therein to be performed by Bigelow. 4th. That all the rights and obligations of Joseph H. Walker, under his agreement with Bigelow, have been assigned to and vested in the plaintiffs, and they are in equity enti- tled to receive all sums which are or may be- come due under the same. 5th. That the plamtlffs, under the lease and license to them, have used the patented ma- chine, and have duly kept and rendered ac- counts to the defendants, and have paid to them in full for such lease and use to Febru- ary 1, 1877, the sum of .$3000, and now owe and are ready to pay to the defendant Brooks a further sum of $164 75 for such use since that time. . Gth. That there is due a like sum from Brooks to the plaintiffs, and that they have demanded of him that he should pay to them the sum so paid by them, and should set off the sum so due from them as rent as afore- said against the sum so in equity due to them from him; and that he has wholly re- fused to do so. and threatens to sue thorn for this sum, and to set aside and avoid the lease and license, and to seize uix)n and take possession of the leased machines, alleging that the plaintiffs have not performed the stipulations and conditions thereof on their part. 7th. That the plaintiffs have fully perform- ed the same, and are nady and offer to do so hereafter, except that they Insist and aver tliat in equity they are entitled to have the sums due as aforesaid, from either of the parties to the othei. set off, and that such right to a set-off operates as an extinguish- ment and payment of tho.se sums. The prayer of the bill is for a discovery un- der oath; for an account of all sums due from the plaintiffs to the defendants or either of them, and from the defendants or either of them to the plaintiffs; for a set-off of such sums against each other; for an injunction against bringing any suit against the plain- tiffs on account of any claim against them as above stated; and for further relief. To this bill the defendants have demurred, because the plaintiffs have a plain, adequate and complete remedy at law, and because they have not stated such a case as entitles them to any discovery or relief In equity. We are of opinion that the demurrer Is well taken, and that the bill cannot be sustained on any of the grounds assigned by the learn- ed counsel for the plaintiffs. It is attempted, in the first place, to bring the case within the rule, that where there are cross demands between the parties of sucli a nature that if both were recoverable at law they would be the subject of a set-off, then, if eitlier of them is a matter of equitable ju- risdiction, the set-off may be enforced in eq- uity. It Is said that the defendant Brooks, as the assignee of the claim of the other de- fendant Bigelow against the plaintiffs, has an equitable right of action against the plain- tiffs, which, though at law it could only be sued in the name of Bigelow, might in eq- uity be sued by Brooks; and that such nght of Brooks to sue the plaintiffs in equitv af- fords a foundation for jurisdiction In equity to order a set-off of that equitable right against the plaintiffs' claim. But a court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he cannot bring an action at law in his own name, nor unless It appears that the assignor prohibits and prevents such an action from being brought in his name, or that an action .so brought would not afford the assignee an adequate remedy. In Hammond v. Mos.senger, 9 Sim. 327, 3.32, Vice Chancellor Shad well so held, and said, "If this case were stripped of all special cir- cumstiinces, it would be simply a bill filed by a plaintiff who had obtained, from certain persons to whom a debt was due, a right to sue in their names for the debt. It is quite new to me that, in such a simple case as that, this court allows, in the first instance, a bill to be filed against the debtor by the person who has become the assignee of the debt. I admit that, if special circumstances are stat- ed, and it is represented that, notwithstand- ing the right which the party has obtained to sue in the name of the creditor, the creditor will interfere and prevent the exercise of that 540 OPERATION or CONTRACT. right, this court will interpose for the pur- pose of preventing that species of wrong being done; and, if the creditor will not allow the matter to be tried at law in his name, this court has a jurisdiction, in the first instance, to compel the debtor to pay the debt to the plaintiff; especially in a case where the act doue by the creditor is done in collusion with the debtor. If bills of this kind were allow- able, it is obvious that they would be pretty frequent; but I never remember any instance of such a biU as this being filed, unaccompa- nied by special circumstances." It is true that Mr. Justice Story, in his Com- mentaries, observed upon that opinion, "Tliis doctrine is apparently new, at least in the broad extent in which it is laid down; and does not seem to have been generally adopted in America. On the contrary, the more gen- eral principle established in this country seems to be, that wherever an assignee has an equitable right or interest in a debt or other property (as the assignee of a debt cer- tainly has) there a court of equity is the prop- er forum to enforce it; and he is not to be driven to any circuity by instituting a suit at law in the name of the person who is possess- ed of the legal title. A cestui que trust may ordinarily sue third persons in a court of eq- uity, upon his equitable title, without any reference to the existence of a legal title in his trustee, which may be enforced at law." Story, Eq. Jur. § lOoTa. To the same effect is the statement in Story, Eq. PI. § 153. But the adjudged cases, including those cit- ed by the learned commentator, upon being examined, fail to support his position, and show that the doctrine of Hammond v. Mes- senger is amply sustained by earlier authori- ties in England and in this country. A century and a half ago, parties for whose benefit their agent had obtained policies of insurance in his own name, brought bills in equity against the underwriters. But Lord Chancellor King refused to sustain them, say- ing, "At this rate, all policies of insurance would be tried in this court, for they are gen- erally taken in the name of a trustee;" and again, "If I should give way to this attempt, no action would ever be brought on a poli- cy." And his decision was aflirmed in the house of lords. Dhegetoft v. Assurance Co., Mos. 83. and 4 Brown, Pari. Cas. (2d Ed.) 4:]t;; Fall v. Chambers, Mos. 193; Lord Hard- wicke afterwards expressed a like opinion. Motteux V. Assurance Co., 1 Atk. 545, 547. In Cator v. Burke, 1 Brown, Ch. 434, Cator, with whom Hargrave had deposited, as secu- rity for a debt of his own to Cator, a bond made by Burke to Hargrave, filed a bill in equity against Burke and Hargrave, to com- pel Burke to pay the debt to the plaintiff, out of a counter bond for a larger amount, which Hargrave had made to Burke; and to prevent Burke from setting up the counter bond as a defense to any action at law which might be brought against him in the name of Hargrave. The bill was dismissed; Lord Loughborough saying, "The bond can never be considered in any other light than as an unassignable security; to consider it other- wise would bring all the causes on bonds in Westminster Hall into this court. The plain- tiff has mistaken both the law and equity; for first, he has supposed that the holder of a bond might, where there was no discovery to be made, come bither, and have a differ- ent relief from what he could have at law; and secondly, that if there was fraud in giv- ing the counter bond, it could not be made use of at law. When this bill is dismissed with costs, you may bring your action in the name of Hargrave. If this bill would lie by the simple act of assigning the bond, a suit in eq- uity might be brought on eveiy bond that is given." So m Rose v. Clarke, 1 Younge & C. 534, 548, Vice Chancellor Knight-Bruce said, "As I apprehend, an equitable title to money secured by a bond is not of itself suf- ficient to entitle the party so interested to sue the obligor in equity for payment of the money. There must, I conceive, be some- thing more." The decision in Riddle v. Mandeville, 5 Cranch, 322, allowing an indorsee of a prom- issory note to sustain a bill in equity against a remote indorsei, proceeded upon the ground that in Virginia no remedy at law could be had agamst him, except by the circuitous course of successive actions by each indorsee against his immediate indorser, and that in that particular case the intermediate party was insolvent See Mandeville v. Riddle, 1 Cranch, 290; Harris v. Johnston, 3 Cranch, 311. That Chief Justice Marshall, who de- livered the opinions in these cases, did not consider them as establishing the general proposition that the assignee of a chose m action, who could not sue thereon in his own name at law, might therefore do so in eq- uity, is manifest from his opinion in the later case of Lenox v. Roberts, 2 Wheat 373, in which the assignee of all the property of a banking corporation was allowed to main- tain a bill in equity in his own name upon a promissory note which had not been formally indorsed to him, for the reason that, "as the act of incorporation had expired, no action could be maintained at law by the bank itself." In Carter v. Insurance Co., 1 Johns. Ch. 4G3, Chancellor Kent dismissed a bill in equi- ty brought against an insurance company by the assignees of a policy of msurance; and briefly stated his reasons to be, that the de- mand was properly cognizable at law, and there was no good reason for coming into the court of chancery to recover on the contract of insurance; that the plaintiffs were entitled to- make use of the names of the original as- sured in the suit at law, and the nominal plaintiffs would not be permitted to defeat or prejudice the right of action; that it might be said here, as was said by the chancellor in the analogous case of Dhegetoft v. Assurance Co., supra, that at this rate all policies of in- surance would be tried in this court; and ASSIGNMENT. 541 that the bill stated no special ground for eq- uitable relief. It was hold by the courts of appeals of Maryland and Virginia, and by the supremo court of Tennessee in an opinion delivered by Judge Catron, (afterwards a justice of the supreme court of the United States.) that the mere fact of the assignment of a legal chose in action gave the assignee no right to involve the jurisdiction of a court of equity. Adair V. Winchester, 7 dill & J. 114; Moseley v. Boush. 4 Rand. 302; Smiley v. Bell, Mart. & Y. 378. The opposing decision in Townsond V. Carpenter, 11 Ohio, 21, is unsupported by .my reference to authorities. The cases before Chancellor Walworth of Field V. Maghee, 5 Paige, .539, and Rogers v. Insurance Co., 6 Paige, 583, contain no de- cision upon this point; and in the later case of Ontario Banlj v. Mumford, 2 Barb. Ch. 596, 615, he said, "As a general nile, this court will not entertain a suit brought by the assignee of a debt or of a chose in ac- tion, which is a mere legal demand, but will leave him to his remedy at law by a suit in the name of the assignor;" and referred to the cases before Chancellor Kent and Vice Chancellor Shadwell, and in the courts of Ma- ryland, Virginia and Tennessee, already cited. The statement in Story, Eq.. Jur. § 143r.a, that "if a legal debt is due to the plaintiff by the defendant, and the defendant is the as- signee of a legal debt due to a third person from the plaintiff, which has been duly as- signed to himself, a court of equity will set off the one against the other, if both debts could properly be the subject of a set-off at law," is pervaded by the same error that we have considered. The decision of the vice chancellor in Wil- liams V. Davies, 2 Sim. 461, by which a cred- itor appears to have been restrained in eq- uity from taking judgment and execution at law on a debt of one to whom he owed a larger sum, is obscurely reported, and was dis- approved by Lord Chancellor Cottenham. Clarlc V. Oort, Craig & P. 154, 159; Rawson v. Samuel, Craig & P. 161, 178. In Clark v. Cort, the bill upon which the set-off was or- dered was by tlie assignees of a claim which required the investigation of accounts and the application of a security, of which the court would have had jurisdiction if the suit had been by the assignor; and the chancellor said, "The case, then, is not that of a mere assignee of a legal debt, coming into equity to have the benefit of a set-off which he could not have at law." In Rawson v. Samuel, he observed, "We speak familiarly of equitable set-off, as distingui.shed from the set-off at law; but It will be found that this equitable set-off exists in cases where the party seek- ing the benefit of it can sliow some equitable ground for being protected agaiu.st his ad- versary's demand. The mere existence of cro.ss demands is not suflicient." And see Watson V. Railway Co., L. R. 2 C. P. 593; Spaulding v. Backus, 122 Mass. 553. In this commonwealth, the assignee of a chose in action has an adequate and complete remetly at lav/, w the right to maintain an ac- tion thereon in the name of his assignor, or of his executor or administrator, without his con- sent, and even against his protest, at least upH on giving him, if sea.sonably demanded, a bond of indemnity ag-ainst costs. Dennis v. Twitchell. 10 Mete. (Mass.) ISO, 184; Rock- wood V. Brown. 1 Gray, 261; Bates v. Kemp- ton, 7 Gray, 382; Foss v. Bank, 111 ila.ss. 285. In any action at law, brought by Brooks in the name of Bigolow, to recover the sums due him from these two plaintiffs under the license, they could set off the demand, under the other contract assigned to them, of Jo- seph H. Walker against Bigelow, if Bigelow liad notice of such assignment before bringing his action. Gen. St c. 130, § 5; Cook v. Mills, 5 Allen, 36, 38. Their neglect to give such notice cannot entitle them to demand the In- terposition of a court of equity. Wolcott v. Jones, 4 Allen, 367. The bill shows no case for an account that cannot be taken at law. Badger v. McNa- mara, 123 Mass. 117. It cannot be main- tained to restrain a forfeiture; because it does not show that there is any danger of ir- reparable injury, therein differing from Flor- ence Sewing- Mach. Co. v. Grover & B. Sew- ing-Mach. Co., 110 Mass. 1. It cannot be maintained under Gen. St c 113, § 2. to reach and apply, in payment of a debt, property or rights of a debtor which cannot be come at to be attached or taken on execution in a suit at law against him; because it is not framed in that aspect and because the statute relates to rights of property, or claims of the debtor against third persons, and does not extend to claims of the debtor against the plaintiff him- self. Crompton v. Antliony, 13 AUen. 33, 37. It cannot be maintained for discovery; be- cause it cannot be maintained for relief, and does not show that any discovery is required in aid of proceedings at law. Pool v. Lloyd. 5 Mete. (Mass.) 525; Ahrend v. Odiome. 118 Mass. 261. Demurrer sustained, and bill dismissed. 542 OPERATION OF CONTRACT. '^ - ARKANSAS VALLEY SMELTING CO. v. 'V BELDEN MIN. CO. 'K^^ ^ ^ (8 Snp. Ct. 130S. 127 U. S. 379.) 3^'' Sapremp Court of the United States. May 14, ISSS. In error to the circuit court of the United States for the district of Colorado. This was an action brought by a smelting company, incorporated by the laws of Mis- souri, against a mining company, incorpo- rated by the laws of Maine, and both doing business in Colorado by virtue of a compli- ance with its laws, to recover da mages for the breach of a contract to deliv er or e, made by~tl3e~trerenaant witlf Billing & Eilers, and assigned to the plaintiff. The material alle- gations of the complaint were as follows: On July 12, ISSl, a. contract in writing was made between the defendant of the first part and Billing & Eilers of the second part, by which it was agreed that the defendant should sell and deliver to Billing_ & Eiler s, at their ^meltmg^worfe iiTTiead ville, 10,00 tons of car bonateT ead ore Jrgm its min e s at Red Cliff^at_the,,nrtp-x)£-ai Jeaat-aO_tQfls_a day, beginning upon the completion of a rail- i-oaH" fv(fm. Leadville to Red Cliff, and continu- ing until the whole should have been deliv- ered, and that "aU. ^re jo jjellvered shall at once, upon the delivery thereof, become the property of the second party;" and it was further agreed as follows: "The value of said ore and the price to be paid therefor shall be fixed in lots of about one hundred tons each; that is to say, as soon as such a lot of ore shall have been delivered to said sec- ond party, it shall be sampled at the works of said second party, and the sample assayed by either or both of the parties hereto, and the value of such lots of ore shall be fixed by such assay; in case the parties hereto cannot agree as to such assay, they shall agree upon some third disinterested and competent par- ty, whose assay shall be final. The price to be paid by said second party for such lot of ore shall be fixed on the basis hereinafter agreed upon by the closing New York quota- tions for silver and common lead, on the day of the delivery of sample bottle, and so on until all of said ore shall have been delivered. Said second party shall pay said first party at said Leadville for each such lot of ore at once, upon the detennination of its assay value, at the following prices;" specifying, by reference to the New York quotations, the price to be paid per pound for the lead con- tained in the ore, and the price to be paid for the silver contained in each ton of ore, vary- ing according to the proportions of silica and of iron in the ore. The complaint further alleged that the railroad was completed on November 30, 1881, and thereupon the defend- ant, under and in compliance with the con- tract, began to deliver ore to Billing & Eilers at their smelting works, and delivered 167 tons between that date and .January 1, 1882, when "the said firm of Billing and Eilers was dissolved, and the said contract and t h£_b]ial- ness ctTaid firm, and the smelting works a.t whi c h sa id urcs wlto to be delivered, were sold, assigUL'd, aud iraust'crred to Gj,_BUli^, whereof the defendaBt had due notice ;" that after such transfer and assignment the de- fendant continued to deliver ore under the contract, and between January 1 and April 21, 1882, delivered to Billing at said smelting works 894 tons; that on May 1, 1882, the con- tract, together with the smelting works, was s old and ^on veyed by B illing^ to_th£ plaintiff, whereof the defen dant had due notice; that the defendant then ceased to deliver ore un- der the contract, and afterwards refused to perform the contract, and gave notice to the plaintiff that it considered the contract can- celed and annulled; that all the ore so deliv- ered under the contract was paid for accord- ing to its terms; that "the plaintiff and its said assignors were at all times during their respective ownerships ready, able, and willing to pay on the Uke terms for each lot as deliv- ered, when and as the defendant should de- liver the same, according to the terms of said contract, and the time of payment was fixed on the day of delivery of the 'sample bottle,' by which expression was, by the custom of the trade, intended the completion of the as- say or test by which the value of the ore was definitely fixed;" and that "the said Billing and Eilers, and the said G. BilUng, their suc- cessor and assignee, at all times since the delivery of said contract, and during the re- spective periods when it was held by them respectively, were able, ready, and willing to and did comply with and perform all the terms of the same, so far as they were by said contract required; and the said plain- tiff has been at all times able, ready, and will- ing to perform and comply with the terms thereof, and has from time to time, since the said contract was assigned to it, so notified the defendant." The defendant demm'red to the complaint for various reasons, one of which was that the contract therein set forth could not be assigned, but was personal in its nature, and could not, by the pretended as- signment thereof to the plaintiff, vest the plaintiff with any power to sue the defendant for the alleged breach of contract. The cir- cuit court sustained the demurrer, and gave judgment for the defendant; and the plain- tiff sued out this writ of error. R. S. Morrison, T. M. Patterson, and C. S. Thomas, for plaintiff in error. Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court. If the assignment to the plaintiff of the con- tract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this action in its own name. Rev. St. § 914; Code Civ. Proc. Colo. § 3; Steel Co. v. Lund- berg, 121 U, S. 451, 7 Sup. Ct. 958. The vital question in the case, therefore, is w hether the conti-act between the defendant and Bil- ASSlGis^MENT. 543 ling & E ilers was assit^able by the latter^ cmder tje_circ umsta uc es stated 1b the com- plaiuj. "At the present day, no doubt, an agreemeat to pay money, or to deliver goods, may be assiguod by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the Inten- tion of the parties that It shall not be assign- able. But every one has a right to select and ^ermine with whom he will contra cjt, and caju not h ave anothejujerson thrust upon ^im without his consent In the familiar phrase of Lord'Deuman, "You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305; Ice Co. v. Potter, 123 Mass. 2S; King V. Batterson, 13 R. I. 117, 120; Lansden V. McCarthy, 45 Mo. lOG. The rule upon this subject, as applicable to the case at bar. Is well expressed in a recent English trea- tise: " Rights -irisini? nn t _ of contract ca n- not be transferred if th ey^are coupled with liabilities, of_J f they invo lve a relation of p ersonal confidence_ such that tBi; party wIiose_ ag reement conf err ed thotJt^ rlgtrt s must haye inten dad-^th em to be ~excrciscd onlj hj Jiim Jn whom he actually^ ciuj fi ded . " Pol. Cont. (4th Ed.) 425. The contract here sued on was one by which the defendant agreed to deliver 10,000 tons of lead ore from its mines to Billing & Eilers at their smelting works. The ore was to be delivered at the rate of 50 tons a day, and it was expressly agreed that It should become the property of Billing & Eilers as soon as de- livered. The price was not fixed by the contract, or payable upon the delivery of the ore. But, as often as a hundred tons of ore had been delivered, the ore was to be as- sayed by the parties or one of them, and, if they could not agree, by an umpire; and it was only after aU this had been done, and according to the result of the assay, and the proportions of lead, silver, silica, and Iron thereby proved to be In the ore, that the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore and the as- certainment and payment of the price the defendant had no security for its uavmcp t excepts jn _the^_chara£ter_jnid__aalteiiey — ef Hilli ng & Jlil erSi, The defendant, therefore, could not be compelled to accept the liabil- ity of any other person or corporation as a substitute for the liability of those with whom it had contracted. The fact that upon the dissolution of the firm of Billing & Ei- lers, and the transfer by Eilers to Billing of this contract, together with the smelting works and business of the partnership, the defendant continued to deliver ore to Bil- ling according to the contract, did not oblige the defendant to deliver ore to a stranger. to whom Billing hn,tl midtjrtiken , withou t tlie defendants consent j__toassigntbe_con- Jxaiit^ The change in a!~'parlnership "by the coming in or the withdrawal of a partner might perhaps be held to be within the con- templation of the parties originally con- tracting; but, however that may be, an as- sent to such a change in the one party can- not estop the other to deny the validity of a subsequent assignment of the whole con- tract to a stranger. The technical rule of law, recognized in Murray v. Ilarway, 50 N. Y. 337, cited for the plaintiff, by which a lessee's express covenant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has do application to this case. The cause of ac- tion set forth In the complaint is not for any failure to deliver ore to Billing before hts assignment to the plaintiff, (which might perhaps be an assignable cnose in action,) but it is for a refusal to deliver ore to the plaintiff since this assignment Perform- ance and readiness to perform by the plain- tiff and its assignors, during the periods for which they respectively held the con- tract is all that is alleged; there is no al- legation that Billing Is ready to pay for any ore delivered to the plaintiff. In short, the plain tiff undertakes to step i ntn .the shoes on^uiin g, and to substitute its liability fo r The aefendant had a perfect right to liis. "necITne to assent to this, ajid to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of ore. The cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are distin- guishable from the case at bar, and the principal ones may be classified as follows: First. Casog_ of^ j.gr eements to sell ap d dij - liver goods for a fix ed price, pay able ^n cash on'SFliverY . in whTgfi the owneT would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee. Sears v, Conover, *42 N. Y. 113, 4 Abb. Dec. 170; Tyler v. Barrows, 6 Rob. 104. Second. Cases upon the question how far executors succeed to rights and liabilities under a con- tract of their testator. Ilambly v. Trott, Cowp. 371, 375; ^Yent worth v. Cock. 10 Adol. & E. 42. 2 Perry & D. 251; 3 Wil- liams, Ex'rs (7th Ed.) 1723-1725. Assign- ment by operation of law, as in the case of an executor, is quite different from as- signment by act of the party; and the one might be held to have been in the contem- plation of the parties to this contract, al- though the other was not. A lease, for instance, even If containing an express covenant against assignment by the lessee, passes to his executor. And It is by no means clear that an executor would be 544 OPERATION OF CONTRACT. bound to perform, or would be entitled to tbe benefit of, sucb a contract as that now in question. Dickinson v. Calahan, 19 Pa. St 227. Third. Cases of assignments by contractors for public works, In which the contracts, and the statutes under which they were made, were held to permit all persons to bid for the contracts, and to ex- ecute them through third persons. Taylor V. ralmer. 31 Cal. LMO, 247; St. I.ouis v. Clemens. 42 Mo. 69; Philadelphia v. Lock- hardt, 73 Pa. St 211; Devlin v. New York, (]3 N. Y. 8, Fourth. Other cases of con- tracts assigned by the party who was to do certain work, not by the party who was to pay for it and in which the question was whether the work was of such a nature that it was intended to be performed by the original contractor only. Robson v. Drum- mond, 2 Barn. & Adol. 303; Waggon Co. V. Lea, 5 Q. B. Div. 149; Parsons v. Wood- ward. 22 N. J, Law. 19r.. Without consid- ering whether all tho cases cited were well decided, it is suffi(i<'ut to say that none of them can control the decision of the pres- ent case. Judgment affirmed. ASSIGNMENT. 345 rANBUSKIRK et al. v. HARTFORD FIRE INS. CO. (14 Cona. 141.) Supreme Court of Errors of Connecticut. June, lf>41. W. W. Ellsworth, for plaintiCCa. Hunger- ford & Cone, for assignee. WAITE, J. The plainUffs brought their suit, by foreign attachment, against Joseph Mortimer, and attached a debt claimed to be due to him from the defendants upon a pol- icy of insurance. Having recovered judg- ment in that suit they brought their scire facias agaiust the defendants to recover their demand. Payment was resisted, by the defendants, upon the ground of an as- signment of the debt made to John Morti- mer, previous to the attachment It is found, by the court below, that no notice of that assignment was given to the defendants until long after the attachment. The question arising in this case, is, wheth- er the plaintiffs are entitled to recover. If the case is to be governed by the laws of this sta,te, it is clear, that the defence cannot prevail: for the rule here, is well settled, that, in order to perfect an assign- ment of a chose In action, as against bona flde creditors and purchasers without notice, notice of such assignment must be given to the debtor within a reasonable time; and unless such notice is given, creditors may at- tach and acquire a valid lien; and others may purchase the debt, and gain a title su- perior to that of the first assignee. Bishop V. Holcomb, 10 Conn. 444; Judah v, Judd, 5 Day, 534; Woodbridge v. Perkins, 3 Day, 364. And so far as regards subsequent pur- chasers, the same law is fully recognized and established in England. Williams v. Thorp, 2 Simons, 257; Dearie v. Hall, 3 Russ. 1; Loveridge v. Cooper, 3 Russ. 30; Foster v. Cockerell, 9 Bligh, 322; 2 Story, Eq. 301. Here, ho notice of the assignment of the debt to John Mortimer was given to the defendants until after the attachment; and it is not claimed, that the plaintiffs had any knowledge of that assignment. They, therefore, by the law of this state, acquired a lien paramount to the title of the a.s- signee. In this respect, an attaching cred- itor stands In a situation, very similar to that of a subsequent purchaser. He obtains a lien upon the debt, as valid as the title acquired by a purchaser. UOPK. SEL. CAS. CONT. — 85 But although it is not denied by the de- fendants, that such is the law of Connect- icut, yet it is claimed by them, that the assignment was made in the state of New York, where a different rule of law applies in relation to assignments of cljoses in ac- tion; and that upon the principles of comity, the same effect ought to be given to the as- signment here as would be given to it, in that state. But does it appear, that the law of the state of New York differs from ours? It is found by the court, (and as we are informed in the language of the witness,) that "an assignment of a chose in action is effectual to convey the title to the assignee, upon de-- livery of the instrument; and no notice need be given, by the debtor, that such claim agaiust him had been assigned." That un- doubtedly is the law here, so far as regards the parties to the assignment. It is even good as against aU persons who have notice of the assignment. But would it be effectual as against attacliing creditors, and subse- quent purchasers without such notice? That fact is not found by the court; nor, in our opinion, is It a necessary inference from what is found. To justify the conclusion that the laws of the state of New York so widely- differ from ours and those of England, upon a prin- ciple, which, we believe so correct and sal- utary, as that requiring notice to be given of the assignment of a chose in action, to protect It against the subsequently acquired rights of other persons, It ought to be made distinctly to appear, and not left to any forced construction. What would be the effect of such a con- flict of laws upon the present case, were it proved to exist, we do not deem it necessary to determine. Upon that question there are various and conflicting decisions. Manufac- turing Co. V. Prall, 9 Conn. 4S7; Oliver v. Townes, 14 Mart. 97; Pomeroy v. Rice, 10 Pick. 22; Daniels v. WiUard,"l6 Pick. 36; Burlock V. Taylor, 16 Pick. 335. But as we are not satisfied from the find- ing of the court below, that any material difference exists between the law of this state and that of New York, we are of opin- ion, that the plaintiffs are entitled to judg- ment for the amount due by the defendants on the policy, at the time the original writ was served upon them. In this opiiiioD the other Judges conctured. 546 -I OPERATION OF CONTRACT. MOTT V. CLARK. (9 Pa. St. 399.) Supreme Court of Pennsylvania. Dec Term, 1S4S. Dec. IS. This was an ejectment to recover a moiety of two pieces of land, one moiety of which plaintiff was in possession of. The main question arose out of the follow- ing facts: In 1S20 John Clark obtained the title by a sheriff's deed to the whole property; but in fact he was trustee for his father, Vin- son Clark, for a moiety. In 1S21 John convey- ed this moiety to Vinson Clark, the defendant, but the deed was not registered until 1836. In 1S31, John Clark mortgaged the whole property to Broadhead, the mortgage being registered in November. But according to the verdict Broadhead had notice at and before the date of this mortgage, of the real extent of John Clark's title, and of the deed to V. Clark. In 1S32, Broadhead, by deed which was never registered, assigned the bond and mort- gage to Johnson, who had no notice of V. Clark's title. In 1835, there was a judgment recovered by Johnson on another cause of action against John Clark, under which the whole of the property in question was, in 1837, sold and conveyed by the sheriff to Johnson. But at this sale notice was given of Vinson Clark's title to the moiety. In 184i, Johnson conveyed to the plaintiff, who, it was assumed, had notice of V. Clark's title, and in 1845, he assigned him the mort- gage. On the accompanying bond judgment had been entered in 1832. Whether this was assigned or not, could not be gathered from the bill of exceptions. Under these circumstances the defendant contended that the sheriff's sale having pass- ed but a moiety, on account of the notice given by V. Clark, the plaintiffs right under the mortgage was postponed: 1. Because of the notice to the mortgagee of the state of the title. 2. Because the assignment was not reg- istered before Vinson Clark's deed was. 3. Because the mortgage merged in plaintiff's title under the sheriffs deed. On this point the court (Jessup, P. J.) in- structed the jury, that if Broadhead had no- tice of V. Clark's deed, plaintiff was bound by it The other exceptions were as follows: L The court permitted defendant to read the proceedings under the judgment on the bond whereby other property had been sold to Johnson subsequently to his purchase of the property in question. 2. They permitted de- fendant to examine John Clark to prove no- tice to Broadhead of the title and deed to V. Clark, and that this moiety of the land was included by mistake. 3. They also permitted defendant to prove that Johnson at the sher- iff's sale gave but the value of a moiety of the premises. 4. The defendants had shown sev- eral judgments against J. Clark, prior to that under which plaintiff purcha .sod — which were liens — and that no purchase-moin\v was paid by him to the sheriff. The court told the jury that if plaintiff held under the mortgage only, then the amount of his bid, which was applicable to other creditors on their liens who had acquiesced, should be applied to the payment of the mortgage debt. Mr. Reeder, for plaintiff in error. J. M. Porter, contra. ROGERS, J. (after stating the two titles un- der the mortgage and the sheriff's sale.) Either of the titles as above stated would en- title the plaintiff to a verdict. But the de- fendants contend the plaintiff cannot recover because Thomas Clark, on the 5th of Jan- uary, 1841 conveyed an undivided half of the premises (being the property in dispute) to his father Vinson Clark. That this deed was ac- knowledged on the day of its date, and was recorded May 1st, 1821. The deed being re- corded before the sheriff's sale, and moreover V. Clark having given notice at the sale, the court properly instructed the jury that the purchaser at the sheriff's sale obtained no title unless the deed from John Clark to V. Clark was fraudulent. The jury decided that it was a bona fide conveyance. There is therefore an end to the title grounded on the sheriff's deed. Has then the plaintiff, the assignee of Broadhead, a title under the mortgage?— and this is a principal point in this case. The mortgage to Broadhead was recorded 2Sth November, 1831, but the deed from J. Clark to V. Clark, although prior in date, was not recorded until May 1st, 1836. And this would be decisive of the case; but the defendant replies, that although his deed is recorded upwards of five years after the en- try of the mortgage, he is not to be post- poned because the mortgagee had actual no- tice of the conveyance of a moiety of the property by John Clark to his father, V. Clark. The fact of notice was properly left by the court to the jury, who found that the mortgagee had notice. But in answer the plaintiff contends that admitting this to be so, he is an assignee without notice, and. however it may be as between the moi-t- gagee and third persons, he takes the prop- erty discharged of all equities of which he had DO knowledge. The question, therefore, is (granting he had no notice, which is un- doubted), does the assignee stand in the same or a better position than the mort- gagee? On this point the court instructed the jury, that the assignment of a mortgage is not so within the recording acts, as to give the assignee protection against an un- recorded deed, of which the mortgagee had full notice. That a mortgagee is a purchaser within the statute of frauds is ruled in Lan- caster V. Dolan, 1 Rawle, 245, on the au- thority of Chapman v. Emery, Cowp. 278. Now it has been repeatedly ruled, that al- ASSIGNMENT. 547 though a purchaser has notice of an equi- table claim, by which bis conscience Is af- fect (cl, yet a person purchasing from him bona Ode, and without notice of the right, will not be bound by it. So a person hav- ing notice of an equitable claim may safely purchase of a person who bought bona fide, and without notice. These positions are elementary, and are fully sustained by the authonties cited. If, therefore, a mortgagee is to be considered on the footing of a pur- chaser, it would seem to follow that an as- signee without notice takes the property dis- charged of a latent equity. If any existed. These cases, although analogous, are not ex- pressly in point, but the case of an assignee of a bond and mortgage is expressly ruled in Liv- ingston V. Dean, 2 Johns. Ch. 479. He takes it subject to all the equity of the mortgagor, but not to the latent equity of a third per- son. To subject him to such an equity he must have express or constructive notice at the time of the assignment. It is a general and well-settled principle, says the chan- cellor in Murray v. Lylburn, 2 Johns, Ch. 443, that the assignee of a chose in action takes it subject to the same equity it was subject to in the hands of the assignee. 2 Vern. 691-7G5; 1 P. Wms. 497; 1 Ves. 122; 4 Ves. 118. But this rule is generally under- stood to mean the equity residing in the original obligor or debtor, and not an equity residing in some third person against the as- signor. He takes it subject to all the equity of the obligor, say the judges in the very elaborately argued case of Norton v. Rose, 2 Wash. (Ya.) 233, on this very point, touch- ing the rights of the assignee of a bond. The assignee can always go to the debtor and ascertain what claims he may have against the bond or other chose in action, wliich he Is about purchasing from the obligor; but he may not be able with the utmost diligence, to ascertain the latent equi- ty of some third person against the obligee. He has not any object to which he can direct his inquiries, and for this reason the claim of the assignee, without notice of a chose in action, in the late case of Redfearn V. Ferrier, 1 Dow, 50, was preferred to that of a party setting up a secret equity against the assignor. Lord Eldon observed in that case, that if it were not to be so, no as- signment could ever be taken with safety. It would be utterly impossible to guard against combination by the mortgagor and mortgagee, particularly with the aid of the owner of the latent equity. If V. Clark the owner as he alleges of the moiety, loses his property, it is his own laches for it was his duty to put his deed on record as notice of his title. Having neglected his duty, he is postponed to the mortgagee, who Is a pur- chaser within the statute of frauds. At law his title Is available against the owner, who neglected to put his deed on record. The assignee stands in the position of the mort- gagee so far as regards the legal title, but stands, as the authorities evidently show, unaffected with an equity of which he had no knowledge or possibility of knowledge, and against which it would be irapossible for him, with the most careful dihgeuce, to guard himself. If be had notice of the out- standing e B. nis moiety. B. shows this direction to C, who refuses to ac- count to B., but says he will pay B. if pro- ceeds belong to him. It was held that the agreement between A. and B. to sever their interest would not entitle them to sue C. sev- erally, unless, after notice, C. had consented to it, and to account to each for his share. But as the action was not on the original con- tract but on C.'s promise to pay B. if he was entitled, and he had shown he was enti- tled, he might recover. Without further review, the true rule ap- pears to be that where all the parties in in- terest in the joint contract agree to a sever- ance of the joint interest, and the obligor promises to pay each his several share, each may sue therefor; the suit being based upon the promise to pay each severally, and not on the original joint promise. Here the count is clearly in assumpsit, and the right of re- covery is based upon the original undertak- ing. The act of bringing the suit cannot in law be effectual to work a severance of the joint interest of Angus and Goff, and thus, by way of a ratification of the unwarranted sev- erance made by Goff and Robinson, give An- gus a several action. The severance must first be made, and a new promise must ap- pear as the basis of the new right of action springing from the severance. The judgment of the county court sustain- ing the demurrer, and adjudging the plaintifTs new fourth count insufficient is affirmed, and the case remanded. 652 4 INTERPRET ATIOX OF CONTRACT. SMITH T. WILLIAMS. (1 Murph. 426.) Supreme Court of North Carolina. July, 1810. This was an action on the case for a breach of warranty in the sale of a negro. The dec- laration stated, "that the defendant war- ranted the negro to be sound and healthy as far as he knew; that the negro was un- sound and unhealtliy, being afflicted with a rupture, and that the defendant well knew he was so afflicted at the time of the war- ranty and sale." The jury found a verdict for the plaintiff, subject to the opinion of the court on a point of law reserved in the course of the ti-ial, viz.: Whether the plain- tiff could be permitted to prove such a war- ranty, when at the delivery of the negro, up- on the sale, he received from the defendant a written instrument, but not under seal, in the following words: "Know all men by these presents, that I, Obed Williams, of the county of Onslow, and state of North Carolina, have bargained and sold unto David Smith, of the aforesaid cotm- ty and state, one negro fellow, named George, about thirty years of age, for and in consider- ation of three hundred dollars. I do warrant and defend the said negro against the lawful claim or claims of any person or persons w'homsoever, unto him the said Smith, his heirs and assigns forever. Given under my hand this 29th January, 1802. "Obed Williams. "Teste, George Roan." This instrument had been proved in Onslow county court, and registered. The point re- served was sent to this court. TAYLOB, J. The contract between the par- ties is stated at length in the special case, and appears to be both formally and substan- tially a bill of sale in aU respects, except as to the want of a seal This omission, how- ever, is so important in the legal estimation of the paper, that it cannot be classed amongst specialties, but must remain a sim- ple contract, on which no additional validity can be conferred by the subsequent registra- tion. For I do not apprehend that any legal effect can be given to a paper by recording it, if that ceremony were not required by law. It might not, however, be an useless enquiry to consider, whether a paper containing near- ly all the component parts of a specialty or deed, does not advance some greater claims to be respected in the scale of evidence, than such proofs of a contract as rest upon the memory of witnesses. The solemnity of sealed instruments has been, from the earliest periods of the law, highly regarded; because the forms and cere- monies which accompany them, bespeak de- liberation in the parties, and afford a safe ground for courts and juries to ascertain and settle contested rights. This deliberation is inferred, not from any one circumstance at- tending the transaction, but as the general effect of the whole. Thus in Plowd. 308, B: "It is said that deeds are received as a lien final to the party making them, although he received no consideration, in respect of the deliberate mode in which they are supposed to be made and executed; for, first, the deed is i)repared and drawn; then, the seal is af- fixed; and lastly, the contracting party de- livers it, which is the consummation of his resolution." Hence it appears, that the law gives to deeds a respect and importance which it denies to any other contracts; not an empty and unmeaning respect, but such as properly arises from the existence of all those circumstances which are calculated to fix and make authentic the contracts of men. A contract cannot be a deed, if either it is not prepared and drawn; if the seal be not affixed, or if it be not delivered; but still if the deliberation is inferred from all these cir- cumstances, it is fair reasoning to presume some degree of dehberation from any one or two of them, and to give to the paper, when it is introduced as evidence of the parties' transaction, precisely such credence as be- longs to it, from its partaking more or less of the nature of a deed. To give this rule a practical application to the case before us, the conclusion would be, that as the paper is without a seal, it cannot be a deed, and is therefore not decisive evi- dence as that instrument is; it is not a final lien; but as it possesses some of the essen- tials of a deed, viz. a formal draught and de- livery, so far it shall be regarded as evidence of no slight nature of the fact it is introduced to establish. The writers on the law of evidence have accordingly, in arranging the degrees of proof, placed written evidence of every kind higher in the scale of probability than unwritten; and notwithstanding the splendid eloquence of Cicero, to the contrary, in his declamation for the poet Archias, the sages of our law hav^ said that the fallibility of human memory weakens the effect of that testimony which the most upright mind, awfully impressed with the solemnity of an oath, may be dis- posed to give. Time wears away the distinct image and clear impression of the fact, and leaves in the mind, uncertain opinions, imper- fect notions and vague surmises. It is, however, contended by the plaintiff, that contracts by our law are distinguished by specialty and by parol; that there is no third kind, and that whatever is not a spe- cialty, though it be in writing, is by parol. To establish this position, a case is cited from 7 Term R. 350, by which it is certainly proved. But the position being established, whether it will authorize the inference that parol evidence is admissible to vary and e.x- tend written evidence, will best appear from an examination of the case, and from some at- tention to the question which caUed for the solution of the court. KULES RELATING TO EVIDENCE. In the case cited, the declaration states, that the defendant, beinj,' indebted as admin- istratrix, promised to pay when requested, and the judgment Is against her generally. From this statement It is manifest, tliat the promise could not be extended beyond the consideration which was Ln another right as administratrix, and made to bind the defend- ant personally. But in order to avoid Uiis objection, it was contended, that the promise being reduced to writing, the necessity of a consideration was dispensed with; and that the fact of its having been made in writing, might well be presumed after verdict, if nec- essary to support the verdict, which latter po- sition was conceded by the court. It is, then, perfectly evident:, that the only question In the case was, whether nudum pactum could be alleged against a contract in writing, but witliout seal? That it could not, had been a notion entertained by sev- eral eminent men, and amongst the i-est by the learned commentator, who observes, that "every bond, from the solemnity of the in- strument, and every note, from the sub- scription of the drawer, carries with it in- ternal evidence of a good consideration." Tliis doctrine, however, is inaccurate as ap- plied to notes, when a suit is brought by the payee, and is only correct as between the indorsee and drawer. To demonstrate the propriety of the objection, it became neces- sary for the court, in Ram v. Hughes, to enter into a definition and classification of contracts, into those by specialty and those by parol; to which latter division every con- tract belongs that is not sealed, though It may be written. Everj^ written unsealed con- tract is, therefore, in the strict language of legal precision, a parol contract, and like all others, must be supported l)y a consideration. But let it be considered, what the court would have said, if the case, instead of requiring them to give a precise and comprehensive definition of contracts, had called upon them for a description of the evidence by which contracts may be supported. They would, I apprehend, liave said, (because the law says so,) the evidence which may be adduced in proof of a contract is threefold: 1st, matter of record; 2d, specialtj*; 3d, unsealed writ- ten evidence, or oral testimony. It is there- fore necessary to distinguish between a con- tract, and the evidence of a contract, for though they may be, and are, in many cases, idoutifiod; yet, in legal language, a parol contract may be proved by written evidence. This Is the case now before us, and this brings me to the question it presents, which I understand to be, whether oral evidence is proper to ejxtend and enlarge a contract which the parties have committed to writ- ing? The first reflection that occurs to the mind upon the statement of the question. In- dependent of any technical rules, is, that the parties, by making a written memorial of their transaction, have implicitly agreed, that in the event of any future misunderstand- I 553 ing, that writing shall be referred to, as the proof of their act and intention; that such obligations as arose from the paper, by just construction or legal intendment, sliould be valid and compulsory on them; but that they would not subject themselves to any stipula- tions beyond their contract; because, if they meant to be bound by any such, they might have added them to the writing; and thus have given them a clearness, a force, and a direction, which they could not have by being trusted to the memory of a witness. For this end, the paper is signed, is wit- nessed, and is mistakenly recorded. But the plaintiff says, "Besides the warranty of title contained in the writing, the defendant made me another warranty as to the quality, which I can prove by a witness present at the time; and though he has complied with the warranty which was committed to writing, j'et he has broken the one which was orally made, whence I am injured and seek com- pensation." We are then to decide, whether the law deems such proof admissible. By the common law of England, there were but few contracts necessary to be made in writing. Property lying in grant, as rights and future interests, and that sort of real property, to which the term incorporeal here- ditament applies, must have been authenti- cated by deed. So the law remained until St. 32 Hen. VIII., which, permitting a par- tial disposition of land by will, required the will to be in writing; but estates In land might still be conveyed by a symlwlical de- livery in presence of the neighbors, without any written instrument; though it was thought prudent to add security to the trans- action by the charter of feoffment. The statute of 29 Car. II., commonly called the statute of frauds, has made writing and signing essential in a great variety of cases wherein they were not so before, and has certainly increased the necessity of caution In the English courts, with respect to the admission of verbal testimony, to add to or alter written instruments, in cases coming within the provisions of that statute. That law, being posterior to the date of the char- ter under which this state was settled, has never had operation here; so that the com- mon law remained unaltered until the year 1715, when a pailial enactment was made of the provisions of the English statute. The law must therefore bo sought for in cases arising before the statute of frauds, and expositions upon that statute are no oth- erwise authoritative than as they afllrm or recognize the ancient law. But I believe there can be no doubt that the rule is as an- cient as any in the law of evidence, and that It existed before the necessity of reducing any act into writing was introduced. In riowd. 345, Lord Dyer remarks, "Men's deeds and wills, by which they settle their estates, are the laws which private men are allowed to make, and they are not to be al- 554 INTERPRETATION OF CONTRACT. V, tered even by the king, in bis courts of law or conscience." In Rutland's Case, 5 Coke, the court re- solved that it was very inconvenient that matters in writing should be controlled by averment of parties, to be proved by uncer- tain testimony of slippeiy memory, and should be perilous to purchasers, farmers, &c. The case of Meres v. Ansel, 3 Wilson, 275, is directly in point upon the genei-al princi- ple, to shew that parol evidence shall not be admitted to contradict, disannul or sub- stantially vaiy a written agreement. In 2 Atk. 3S4, Lord Hardwicke says: "It is not only contrary to the statute, but to common law, to add anything to a written agreement by parol evidence," All written contracts, says Justice Asliurst, whether by deed or not, are intended to be standing evidence against the parties enter- ing into them. 4 Term R. 331. 1 Ves. Jr. 241, parol evidence to prove an agreement made upon the purchase of an annuity that it was redeemable, was rejected. In a very recent case, in 7 Ves. 211, we are furnished with the opinion of the present master of rolls. Sir William Grant, than whom no judge ever ranked higher in the estimation of his contemporaries, for pro- found and accurate knowledge in legal sci- ence, and a proper and discriminating appli- cation of well grounded principles to the cases which arise in judgment before him. His observations are, "By the rule of' law, independent of the statute, parol evidence cannot be received to contradict a written agreement. To admit it for the purpose of proving that the written instrument does Qot contain the real agreement, would be the same as receiving it for every purpose, [t was for the purpose of shutting out that enquiry that the rule was adopted. Though the written instrument does not contain the terms, it must, in contemplation of law, be taken to contain the agreement, as furnish- ing better evidence than any parol can sup- ply." To these authorities, I will add a decision of the circuit court of Pennsylvania, because it appears to be in principle the very case under consideration. An action on the case was brought by the assignee of a bond against the assignor, up- on a written assignment In general terms. The plaintiffs offered oral evidence to shew that the defendant had expressly guarantied the payment of the bond. "Chase, Justice. You may explain, but you cannot alter a written contract by parol testimony. A case of explanation implies uncertainty, ambigui- ty and doubt upon the face of the instru- ment. But the proposition now is a plain case of alteration; that is, an offer to prove by witnesses, that the assignor promised something beyond the plain words and mean- ing of his written contract. Such evidence is inadmissible, and has been so adjudged in ' the supreme court, in Clark v. Russell, 3 Dal. 415. I grant that chancery will not con- fine itself to the strict rule, in cases of fraud, and of trust; but we are sitting as judges at common law, and I can perceive no reason to depart from it." I suppose the above authorities are amply sufficient to establish the proposition Lor which they are cited, and therefore I forbear to make any other references for that pur- pose. The exceptions to the general rule may be comprised under the heads of fraud, surprise, mistake, in cases of resulting trust, to rebut an equity, or to explain latent am- biguities; and there may also be some other cases which cannot be properly ranged un- der the titles specified. But as the case stated is, in my opinion, directly opposed by the general rule, so far as it seeks to estab- lish the proof of wan-anty as to quality, by parol, and presents no fact to bring it with- in any of the exceptions, it would be need- less to multiply authorities with respect to them. As to the exception on the ground of fraud, I conceive that only occurs, where some- thing intended to have been inserted in the contract, is omitted through the misrepre- sentation or unfair practice of one of the parties. In such case, the omission may be supplied by parol evidence. But there is no allegation here that the additional warranty was intended or understood by either party to have been inserted in the agreement. It is also necessai-y to attend to the nature of the remedy adopted by the plaintiff in this case, which is founded on the warranty, and is in assumpsit The questions arising upon the general issue are, whether the war- ranty was made, and whether it was true at the time of making. For if the warranty were made, and not complied with, it is wholly immaterial whether the defect was known to the seller or not,— a principle that seems to extend to every case where the plaintiff proceeds on the wan-anty. But in an action of deceit, the scienter or fraud is a material part of the declaration, and must be brought home to the defendant to author- ize a recovery against him, and in such case it seems, from the authorities, that proofs of the fraudulent conduct of the defendant may be drawn from sources dehors the written contract. It cannot be contended that in- serting the scienter in a declaration on the warranty, will convert It into an action of deceit founded on tort In the latter ac- tion, the knowledge of the defendant, or something equivalent to it by whicli the fraud is charged, is a substantive allegation, and must be proved; In the former, it is^ merely surplusage, and may be rejected. RULES DELATING TO EYIDEXCE— PllOOF OF CUSTOM AND USAGE. 555 COOPER V. KANE. (19 Wend. 3SG.) Supreme Court of New York. 1838. This was an action of replevin, trif^d at the Albany circuit in October, ISS.'i, before the Hon. Hiram Denio, then one of the circuit jud^'cs. The action was in the dotinot for detaining a quantity of sand taken from a lot in the city of Albany belonging to tlie plaintiff, which the defendant had excavated under a contract with the plaintiff, so as to make the lot con- form to a profile or plan of the streets es- tablished by the corporation. The contract was in writing; the defendant was to exca- vate the lot and malco the necessary embank- ments within a limited time, for which he was to be paid by the plaintiff i^lSO, when the work was done. The defendant com- pleted tiio job and Was paid the stipulated price. Whilst engaged in the work, the defend- ant placed a large quantity of sand, which was taken off of the lot in order to make it conform to the required plan, on an adjoining lot not belonging to the plaintiff, and when re- quested by the plaintiff to permit her to take it away, he refused such permission; for this detention the action was brought. There was no stipulation In the contract as to whom the sand, taken from the lot in mailing the ex- cavation, should belong after it was taken off the lot. The defendant then offered to prove a custom of the city of Albany which had ex- isted for a great number of years and was well known and understood, that in the ex- cavation of lots, the material excavated be- longed to the excavator and not to the own- er of the lot, unless there was an express res- ervation in the contract to the contrary. The judge rejected the testimony, and instructed the jury, that on the evidence adduced the plaintiff was entitled to their verdict, who ac- cordingly found a verdict for the plaintiff with six cents damages, and six cents costs, and assessed the value of the propert}' at $157. The defendant moves for a new trial. The cause was submitted on written argu- ments. J. Holmes, for plaintiff. C. M. Jenkins, for defendant. NELSON, O. J. I am inclined to the opin- ion that the evidence of the custom in re- spect to contracts like the one out of which this action has arisen, by wny of explaining It, and which was offered by the defendant for that purpose, was admissible. It did not go to vary any express or necessarily im- plied stipulations between the parties therein contained, but rather to establish what amoimted to a complete performance agree- ably to the presumed understanding of the parties. Mr. Starkle says (2 Starkie. Ev. 258, 259), "where parties have not entered Into any ex- press and specific contract, a presumption nevertheless arises, that they meant to con- tract and to deal according to the general usage, practice and understanding, if any such exist. In relation to the subject matter." The same rule of evidence is also recognized by Phillipps (volume 1, pp. 420, 421). and Lord Kenyon remarked in Whitnel v. Gratham, ti Term R. 398. that evidence of usage was ad- missible to expound a private deed, as well as tho king's charter. The right of carriers, dyers, wliarfiugers, &;c. to a lien on the goods entrusted to them for their compensation, is frequently established by usage, independent- ly of the contract. In Rushforth v. Hadfleld, 6 East, 519, Lord Ellenborough pennitted the defendants (common carriers) to go into proof of common usage to detain the goods for a general balance, on the ground of an implied agreement arising out of it between the par- ties. He observed that if there be a general usage of trade to deal with common carriers in this way, aU persons dealing in the trade- are supposed to contract with them upon tho footing of the general practice, adopting the general lien into their contract. Lawrence, J., admitted that the lien must be by contract be- tween the parties, but observed that usage of trade was evidence of the contract, and if sc long established as to afford a presumption it was commonly known, it was fair to concludi^ the particular parties contracted with refer- ence to It. In Kirkman v. Shawcross, 6 Term R. 14, the dyers, dressers, whisters, printers, &c., of a neighborhood, held a public meeting and entered into an agreement ttiat Lhey would receive no more goods in the way of their trade, except on the condition that they should have a lien on them for a general bal- ance, which was extensively published. The court held that any person who delivered goods to them after notice must be deemed to have assented to the terms prescribed: and, as we have seen, notice might be inferred from the general notoriety of the terms thus published. Now, in this case, there is simply an agree- ment to excavate the earth in a certain street and to make the necessary embankment, ac- cording 'to a map of the corporation, for a given compensation. Nothing is said about the surplus earth, where it Is to be laid, or what is to be done with it Would It be a workmanlike execution of the contnict to pile it upon the adjacent bank? or may the con- tractor dispose of it as he sees fit, and as most convenient and profitable to himself? It ap- pears to me, the solution of these questions may very well be referred to common us;ige in such cases, if any exist; and that if it should he proved as said by Lawrence, J., "It is fair to conclude the particular parties con- tracted with reference to it" This usage may often have a very important influence up- on the minds of the parties as exemplified in this case: for the value of the materials, which the plaintiff lias recovered, nearly equals the price of the job. If in fact the usage exists, and the contract was made In reference to it, serious Injustice must be the result of up- holding the verdicu New trial granted. INTERPRETATION OF CONTRACT, GRAY V. CLARK et aL (11 Vt. 6S3.) Supreme Cotirt of Vermont. Washington. July, 1S39. Ejectment for a third of an acre of land in Marshtield. Plea, not guilty, and trial by jury. Upon the trial in the court below, it appeared in evidence, that on the 26th day of July. 1836, Luther Hunt deeded the land in controversy, ■with some sixty seven acres more, to Eli Whee- lock. and the lands so deeded are described as follows: "All that part of lot No. three in the fifth range of lots in said town, meaning to convey all that part of said lot that was deeded to me bv Daniel AVilson on the 20th day of August, 1823, bounds the same, being more or less; also, about one third of an acre of land of lot No. three, in the fifth range, lying south of the road, bounded westerly by the land conveyed to the school district, "north by the road, east- erly by the western line of Mr. Carleton, mean- ing the same land that Luther Hunt's buildings stand on, having recourse to the deed from English to said Wilson for more particular bounds." The consideration of this deed was eight hundred and fifty dollars. On the same 2»jth of July, 1826, Wheelock executed to said Hunt, for the consideration of eight hundred dollars, a mortga^-e deed of lands described as follows: "all that part of lot No. three in the fifth range of lots in said town, m&aning to convey all that part of said lot that Luther Hunt deeded to me this day. excepting seventeen acres lying in the southeast corner of said lot, also including one quarter of an acre which James En- glish deeded to Daniel Wilson, and *Wil- *584 son to Hunt, to Wheelock, " to secure the payment of eight hundred and fifty dollars, specified in four promissory notes, in the con- dition of said mortgage deed mentioned. Tho land in controversy is the piece described in the last mentioned deed as one quarter acre which James English deeded to Daniel Wilson. Wheelock continued in possession of the prem ises until the 29th of January, 1830, when he executed to the plaintiff's intestate a mortgage deed to secure her maintenance during her life, and soon after absconded, and wholly failed to perform the condition of this last mortgage. Afterwards, in March, 1832. Hunt brought a bill of foreclosure against Wheelocl^ and the plaintiffs intestate, obtained a final decree, took possession of the premises, and conveyed them to one Damon, who deeded them to the defendant. It was admitted that Hunt had a good title to the land when he conveyed to Wheelock, and that the plaintiff was entitled to recover, unless the land in question was con- veyed to Hunt by Wheelock's mortgage deed to him, but if the land was not conveyed to Hunt by that deed, then the defendants were entitled to a verdict. The county court direct- ed the jury to return a verdict for the defend- ants, and the plaintiff excepted. A. Spalding and L. B. Peck, for plaintiff. Wm. Upham. and 0. H, Smith, for defend- ants. The opinion of the court was delivered by REDFIELD, J. The only question to be deter- mined in this case is, whether the land in ques- tion was included in the exception in Whee- lock's mortgage deed to Hunt, or in the grant. All the land referred to in this deed origi- nally belonged to Hunt, and had all, that day, been deeded to Wheelock. — The notes secured by the mortgage were a portion of the consid- eration of the purchase, and, from the amount, ?S.50, being the same as the consideration ex- pressed in Hunt's deed to Wheelock, it is pre- sumed were for the principal part of the con- sideration. The land in dispute, instead of being deeded, as recited in Wheelock's deed to Hunt, by English to Wilson, and by him to Hunt, was deeded by English directly to Hunt. *In Hunt's deed to Wheelock, *58o the land is described in different parcels, by reference to the deeds by which he derived his title. The mortgage deed, executed by Wheelock to Hunt to secure the consideration, from the precise correspondence in the terms of description of the estate, was manifestly copied from the deed, and, after the entire es- tate had been described by general terms, and the exceptions also, the dubious clause is super- added. If we adopt the rule, ut res magi$ vaUat quam pereat, we must consider this as forming a part of the exception, for as the whole estate had already been described, it would not enlarge, nor in any way render more certain, the grant, but would enlarge the exception. But this maxim in regard to the construction of deeds is but one among the very great number which the sages of the law have left us. The great object, and, indeed, the only foundation of all rules of construction of contracts, is, to come at the intention of the parties. And any rule, which leads us aside of this grand object, is to be disregarded. In the present case, from the general nature and object of the transaction and the common course of business, there can be little doubt of the intention of the parties to include the buildings, which constituted the principal value of the purchase, in the mort- gage, which was executed to secure the pur- chase money. This view is favored, too, we think, by the manner in which the mortgage was drawn, being copied from the deed, and, in that, the different parcels being described separately, it did not probably occur to the parlies, that a general reference to that deed would include all its particulars, therefore, ex maxima cautela, these particulars are again re- peated. We ought not, therefore, to adopt a construction which will defeat the obvious in- tention of the parties, and produce a result which it is highly improbable, perhaps absurd, to suppose they contemplated. This view is in accordance with established rules of construc- tion. Cholmondeley v. Clinton, 2 B. & Aid. Rep. 625. Hassell v. Long, 2 M. & S. 363. It has been repeatedly said that, in the inter- pretation of contracts, a nice grammatical con- struction is not always to be regarded. Crom- well V. Grurasden, 1 Ld. Raym. 335. — 2 Salk. 462. Fountain v. Guavers. 2 Show. R. 333. 7 Peterds. Ab. 13'J. Hence we are under •586 no necessity of re*ferripg the word "in- cluding" to the next immediate antece- dent "excepting." The term "including" may have reference to the deed, as well as the ex- ception. And, it is evident, the most natural and obvious import of the word is, "including" in the deed, and not in the exception. But, at most, the term "including" in its con- nection, is equivocal. In such cases, resort may always be had to the circumstances under which the contract was executed, and the con- temporaneous construction given to it by the parties, as evidenced by possession or other similar acts. Attorney General v. Parker, 3 Atk. R. 576. King v. Varlo. Cowoer, 248; Bainbridge v. Statham, 7 Dowl. & Ryl. 141, (16 Eng. C. L. 279.) Wadlev v. Bayliss, 5 Taunt. R. 752. (1 Eng. C. L. 385.) Jackson v. Wood. RULES or CONSTRUCTION. 13 Johns 340. In this view, it is evident that the construction contender! for by the defend- ant must prevail. For the land ^as alwaya been claimed and held under the deed by de- fendant, and that claim fully acquiesced in by plaintiff for many years, without any pretence of claim on his part, so far as appears in tiia^ Inevery view of the case. then, we think the construction ?iven to the deed by the county court must prevail. Judzmeat aiUrined- INTEEPRETATION OF CONTRACT. beck: & FAULT LITnOCxRAPHING CO. t. COLORADO MILLING & ELE- VATOR CO. (3 C. C. A. 248, 52 Fed. 700.) Circuit Court of Appeals, Eighth Circuit. Octo- ber 31. 1S92. No. 141. In error to the circuit court of the United States for the district of Colorado. Reversed. Statement by SANBORN, Circuit Judge: This was an action by the plaintiff in error to recover the contract price of certain sta- tionery and advertising matter furnished the defendant. It was tried on the merits, .and at the close of the evidence the comrt instruct- ed the jury to return a verdict for the defend- ant, and this instruction is assigned as error. The plaintiff was a corporation of Wisconsin, engaged in lithographing and printing, and its principal place of business was at Milwaukee, in that state. The defendant was a corpora- tion of Colorado, engaged in the business of milling, and its principal place of business was at Denver, in that state. In June, 1SS9, the plaintiff agreed to make new designs of certain buildings of defendant, with sketches of its trade-marks; to execute engravings thereof in a strictly first-class style; to em- body these on the stationery described below; to submit to defendant for approval proofs thereof; to submit designs and proofs of hangers, on fine chromo plate, for advertis- ing defendant's business, by the following fall; to engrave a strictly first-class vignette of one of defendant's plants; to submit a sketch and proof thereof to defendant; to fur- nish defendant with 10,000 basiness cards and 5,000 checks in Augiist, 1889; to furnish. In the course of the year, letter heads, note- heads, bill heads, statements, bills, envelopes, and cards to the defendant to the number of 331,100, and 5,000 hangers; and to furnish the vignette and 5,000 hangers more after the ap- proval of the proofs thereof by the defendant. The defendant agreed to take and pay for this stationery, this vignette, and those hang- ers at certain agreed prices, which amounted in the aggregate to about $6,000. The plainr tiff furnished the 10,^)00 cards and 5,(XX) checks required under the contract in August, 1889, and the defendant received and paid for them. The plaintiff; introduced testimony to the effect that it strictly complied with and fully performed these contracts In every re- spect, except that it shipped the articles con- tracted for (which were not delivered in Au- gust) by rail from Milwaukee to the defend- ant, at Denver, in December, 1889, In five boxes, four of which did not arrive at Denver until 9:42 a. m., January 1, 1890, and the fifth did not arrive there until January 4, 1890; that before January 8, 1890, all of these arti- cles were tendered to the defendant, and it refased to examine or receive them; that the sketches and proofs of the designs, trade- marks, and hangers had been submitted to and approved by the defendant during the summer and fall of 1SS9, before these articles were niauufacturod, and that the last proof was approved November 16, 1&S9; that on December 16, 1889, the defendant wrote the plaintiff to forward by express 2,000 state- ments and 3,000 envelopes "as per proofs sub- mitted;" that the state of the art and process of lithographing is such that, after the gen- oral idea of a piece of work is conceived, it is customary to make first a pencil design, and, when this is found satisfactory, to prepare a colored sketch where colored work is requir- ed; that after the sketch is colored it is litho- graphed, that is, transferred to a stone; that each color requires a separate stone; and in these hangers there were nine colors; that it requires from two to three months to repro- duce on stone a colored sketch like that used for the hangers; that the artists' work and the reproduction on stone were the most ex- pensive parts of this work contracted for; and that the expense of the materials and printing was but a small part of the entire ex- pense of the work. F. W. V. Cotzhausen, for plaintiff in error. V. D. Markham, for defendant in error. Before CALDWELL and SANBORN, Cir- cuit Judges, and SHIRAS, District Judge. SANBORN, Circuit Judge (after stating the facts). The ground on which it is sought to sustain the instruction of the court below to return a verdict for the defendant in this case is that the plaintiff failed to tender or deliver the articles contracted for to the defendant, at Denver, until six or eight days after the ex- piration of the year, that the plaintiff did not therefore furnish them "in the course of the year," and that this faUure justified the de- fendant in repudiating the contract, and refus- ing to pay any part of the contract price. It is a general principle governing the con- struction of contracts that stipulations as to the time of their performance are not neces- sarily of their essence, unless it clearly ap- pears in the given case from the express stip- ulations of the contract or the nature of its subject-matter that the parties Intended per- formance within the time fixed in the con- tract to be a condition precedent to its en- forcement, and, where the intention of the parties does not so appear, performance short- ly after the time limited on the part of either party will not justify a refusal to perform by the party aggrieved, but his only remedy will be an action or counterclaim for the damages he has sustained from the breach of the stip- ulations. In the application of this principle to the cases as they have arisen, in the pro- mulgation of the rales naturally deduced from it, and in the assignment of the various cases to the respective classes in which the stipu- lation as to time of performance is, or is not, deemed of the essence of the contract, the controlling consideration has been, and ought to be, to so decide and classify the cases that unjust penalties may not be inflicted, nor un- KULES OF CONSTRUCTION— RULES AS TO TIME 559 Tcasonable damages recovered. Thus, in the ordinary contract of merchants for the sale and delivery, or the manufacture and sale, of marketable commodities within a time cer- tain, it has been held that performance with- in the tim.e is a condition precedent to the en- forcement of the contract, and that a failure In this rej?ard would justify the ajisrieved party in refusing performance at a later day. Norrlngton v. Wright, 115 U. S. 18^203, 6 Sup. Ct. 12. This application of the general principle commends itself as just and reason- able, on account of the frequent and rapid in- terchange and use of such commodities made necessary by the demands of commerce, and because such goods, if not received in time by the vendee, may usually be sold to others by the vendor at small loss, and thus he may himself measure the damages he ought to suf- fer from his delay by the difference in the market value of his goods. On the other hand, it has been held that an express stipu- lation in a contract for the construction of a house, that it should be completed on a day certain, and that, in case of failure to com- plete it within the time limited, the builder would forfeit $1,000, would not justify the owner of the land on which the house was constructed in refusing to accept it for a breach of this stipulation when the house was completed shortly after the time fixed, nor even in retaining the penalty stipulated in the contract but that he must perform his part of the contract, and that he could retain from or recover oi' the builder the damages he sus- tained by the delay and those only. Tayloe T. Sandiford, 7 Wheat. 13, 17. This applica- tion of the general rule is equally just and reasonable. The lumber and material be- stowed on .a house by a builder become of lit- tle comparative value to him, while they are ordinar'Jy of much greater value +o the own- er of the land on which it stands, and to per- mit the latter to escap-e payment because his house iJ ccmpleted a few days later than the contract requires would result in great injus- tice to the contract£>r, while the rule adopted fuUr protects the owner, and does no injus- tice to any )C2. The cases just referred to illustrate ♦:wo well-settled rules of law which have been deduced from this general princi- ple, and In «ccordaiK:e with which this case must be determined. They are: In contracts of merchants for the sale and delivery or for the manufacture and sale of marketable commodities a statement descrip- tive of the subject-matter, or some material Incident, such as the time of shipment, is a condition precedent, upon the failure or non- performance of which the party aggrieved may repudiate the whole contract. Norrlng- ton V. Wright 115 U. S. ISS. 203. 6 Sup. Ct 12; Rolling Mill v. Rhodes. 121 U. S. 255, 261, 7 Sup. Ct. SS2. But in contracts for work or skill, and the materials upon which it is to be bestowed, a statement fixing the time of performance of the contract is not ordinarily of its essence, and a failure to perform within the time stipulated, followed by substantial performance after a short de- lay, will not justify the aggrieved party in repudiating the en'^ire contract, but will sim-' ply give him his action for damages for the breach of tlie stipulation. Tayloe v. Sandi- ford, 7 Wheat. 13, 17; Ilambiy v. Railroad Co., 21 Fed. 541, 544, 554, 557. It only remains to determine whether the contracts in the case at bar are the ordinary contracts of merchants for the manufacture and sale of marketable commodities or con- tracts for labor, skill, and materials, and this is not a difficult task. A contract to manufacture and funiish articles for the especial, exclusive, and peculiar use of an- other, with special features which he re- quires, and which render them of value to him, but useless and unsalable to others.— articles whose chief cost and value are de- rived from the labor and skill bestowed upon them, and not from the materials of which they are made,— is a contract for work and labor, and not a contract of sale. Engraving Co. V. .Moore, 75 Wis. 170. 172, 43 N. W. 1124; Goddard v. Rinney, 115 Mass. 450; Hinds V. Kellogg (Com. PI.) 13 N. Y. Supp. 922; Turner v. Mason (INIich.) 32 N. W. 840. Thus in Engraving Co. v. Moore, supra, where the lithographing company had contracted to manufacture a large quantity of engrav- ings and lithographs for a theatrical man- ager, with special features, useful to him only during a certain season, and they were completed and set aside in the rooms of the lithographer, and there burned before de- livery to the manager, the court held that the contract was not one for the sale of persomil property, but one for work, skill, and ma- terials, because it was not the materials, but the lithographer's work of skill, that gave the value to the finished advertisements, and was the actual subject-matter of the contract, and because that work and skill, while It added the chief value to the finished articles for the especial use of the defendant, made both the articles and the materials worthle-^s for all other purposes. The contracts in the case we are consider- ing were not for the blank paper on which they were finally impressed; that was of small value in proportion to the value of the finished articles; they were not for the sale of anything then in existence; they were for the artistic skill and labor of the employes of the defendant in preparing the sketches and designs, transferring them upon stone, and finally impressing them upon the paper the defendant was to furnish; and they au- thorized the plaintiff, without other orders than the contracts themselves, and the ap- provals of the designs and proofs there call- ed for, to prepare and furnish all the articles named In the contracts and to collect the contract price therefor. These contracts re- quired the names of defendant's mills and its trade-marks to be so impressed upon all these articles that when they were completed they 560 USTTERPRETATIOX OF CONTRACT. \ . were not only unsalable to all others, but worthless to plaintiff for all purposes but waste paper. The contracts are evidence that on December 31, 1SS9, the articles con- tracted for would have been worth about $6,000 to the defendant, and if a few days later, when they were tendered, they were not worth so much, the defendant may re- cover the damages it suffered from the delay from December 31, 1SS9,' to the date of the tender, in a proper action therefor, or may have the same allowed in this action under proper pleadings and proofs, and no injustice will result; while, if the defendant was per- mitted on account of this delay to utterly repudiate the contract, the plaintiff must practically lose the entire $6,000. The con- tracts contain no stipulation from which it can be fairly inferred that the parties in- tended the time of performance to be even material; indeed, they strongly indicate the conti'ary. They provide that a certain por- tion of the articles shall be furnished in two months, that the remainder of the stationery and 5,000 hangers shall be furnished in the course of the year, and that 5,000 hangers more and the vignette shall be furnished within a reasonable time after the proofs are approved by the defendant; there is no stipu- lation for the payment of any damages or the avoidance of the contracts on account of a failure to perform within any of the times stipulated in tie contracts, and the parties themselves proceeded so leisurely theix'under that the first and only admitted request by the defendant for the delivery of any of the articles not delivered In August was on December 10, 1S89. In Tayloe v. \ Sandiford, supra, the court refused to permit \ the owner to retain the $1,000 which the '| i house builder had expressly agreed to pay if -^ he failed to complete the house within the time fi^xed in the contract. In the absence of any such stipulation, or any clearly-ex« pressed intent that time should be material even, it would be clearly unjustified by the law and inequitable to hold that the plaintiff is compelled to forfeit his entire contract price on account of this trifling delay that may have been immaterial to the defendant, and, if not, may be fully compensated In damages. The result is that these conti*acts were not for the sale and delivery, or the manufacture and delivery, of marketable commodities. They were contracts for artistic skill and labor, and the materials on which they were to be bestowed in the manufacture of articles which were not salable to any one but tiie defendant when completed because impress- ed with special features useful only to it There was nothing in the contracts or their subject-matter indicating any intention of the parties that the stipulations as to time shouiu be deemed of their essence; and the defend- ant was not justified on account of the slight delay disclosed by the record in refusing to accept the goods, or in repudiating the entire contract This conclusion disposes of the case, and it Is unnecessary to notice other er- rors assigned. The judgment below is re- versed, and the cause remanded for further proceedings not inconsistent with this opin- ion. 5 OF CONSTRUCTION— PENALTIES AND LIQUIDATED DAMAGES. 5G1 •JAQUITH V. HUDSON.i (5 Mich. 123.) Supreme Court of Micliigan. May Term, 1858. Error to circuit court, Wayne county. The action was by Jaquitli against Hudson, upon a pronii.ssory note for one tliousand dol- lars, given by the latter to the former, April 15th, 1855, and payable twelve months after date. Defendant pleaded the general issue, and gave notice that on the trial he would prove that, previous to said 15th day of April, 1855, plaintiff and defendant had been and were partners in trade, at Trenton, in said county of Wayne, under the name of Hudson & Jaquith; that, on that day the copartner- ship was dissolved, and the parties then en- tered into an agreement, of which the follow- ing is a copy: "This article of agreement, made and en- tered into between Austin E. Jaqnlth. of Tren- ton, Wayne county, and state of Michigan, or the first part, and Jonathan Hudson, of Tren- ton, county of Wayne, and state of Michigan, of "the second part, witnesseth, that the said Austin E. Jaquith agrees to sell, and by these presents does sell and convey unto the said Jonathan Hudson, his heirs and assigns, all his right, title, and interest in the stock of goods now owned by the firm of Hudson and Jaquith, together with all the notes, books, book accounts, moneys, deposits, debts, dues, and demands, as well as all assets that in any- wise belong to the said firm of Hudson & Jaquith; and that the copartnership that has existed between the said firm of Hudson & .Jaquith is hereby dissolved; and that the said Austin E. Jaquith, by these presents, agrees that he will not engage in the mercan- tile business, in Trenton, for himself, or in connection with any other one, for the space of three years from this date, upon the for- feiture of the sum of one thousand dollars, to be collected by the said Hudson as his dam- ages. In consideration whereof, the said Jon- athan Hudson, of the second part, agrees for himself, his heirs and administrators, to pay unto the said Austin E. Jaquith the sum of nine hundred dollars, for his services in the firm of Hudson & Jaquith, together with all the money that he (the said Austin E. Jaq- uith) paid into said firm, deducting there- from the amount which he (the said Austin E. Jaquith) has drawn from said firm; the remainder the said Hudson agrees to pay to the said Jaquith, his heirs or assigns, at a time and in a manner as shall be specified in a note bearing even date with these presents. And the said Hudson, for himself, his heirs and assigns, agrees to pay all the debts, notes and liabilities of the firm of Hudson & Jaquith, and to execute imto the said Jaquith a good and sufficient bond of indemnification 1 Irrelevant parts omitted. HOPK.SEL.CAS.CONT. — 36 against all claims, debts, or liabilities of the firm of Hudson & Jaquith. "Trenton, April. 1S55. "Austiu E. .Jaquith. [L. S.] "Jonathan Hudson. [L. S.] "Witnr'ss: Arthur Edwards. Arthur Ed- wards, Jr." And defendant further gave notice, among other tilings, that he would show, on the trial, that, after the execution of said agreement in writing, and the giving of said note in pur- suance thereof, on or about the 15th day of July, 1855, plaintiff, in violation of said agree- ment, entered into the mercantile business at Trenton, and had continued to carry on the same ever since; by means whereof the con- sideration of said note had failed. And he further gave notice, that he (the defendant) continued to cairy on the mercantile business at Trenton, aftor the dissolution of said co- partnership; and by means of the breach of said articles by plaintiff, defendant had sus- tained damages to the sum of one thousand dollars, liquidated by said articles for a breach thereof, which sum he would claim to have di'ducted from- the amount of said note, on the trial. * * * • * • ' The court was then asked by plaintiflf'g counsel to charge the jury, as follows: "2. That, even if the agreement set up was. In the opinion of the jury, properly delivered, as between the parties, the defendant can not recoup any damages against the plaintiff, except upon evidence showing that some dam- age was actually sustained by him; that the clause in the agreement as to damages, can not, of itself, and In the absence of evidence, operate to the reduction of the claim of the plaintiff, as the sum fixed in the agreement is in tlie nature of a penalty, and not liquidat- ed damages; and no damages can be recov- ered under it except such as are proven." The court refused so to charge; and plaintiflP excepted. The court charged the jury, that it was not necessary for the defendant to prove any ac- tual damage under the plaintiff's breach of the said agreement, as the damages therein fixed were liquidated damages, and not a pen- alty. The issue was then submitted to the jury on the evidence, who found a verdict for the plaintiff, in the sum of eighteen dollars and eight cents, allowing the defendant the sum of one thousand dollars mentioned in the agreement Plaintiff brought the case to this court by writ of error, accompanied by bill of excep- tions. D. Bethune Duffield. for plaintiff in error. G. V. N. Lothrop, for defendant In error. CHRISTIANCY, J. • • • The second exception raises the single question, whether 562 mXERPKETATIO]^ OF CONTRACT. the sum of Sl.OOO. mentioned in tlie covenant of Jaquitla not to go into business in Trenton, is to be construed as a penalty, or as stipu- lated damages— the phiintiff in error insisting it should be construed as the former, the de- fendant as the latter. We shall not attempt here to analyze all the decided cases upon the subject, which were read and cited upon the argument, and which, with others, have been examined. It is not to be denied that there is some conflict, and more confusion, in the cases; judges have been long and constantly complaining of the confusion and want of harmony in the deci- sions upon this subject But, while no one can fail to discover a very great amount of apparent conflict, still it will be found, on ex- amination, that most of the cases, however conflicting in appearance, have yet been de- cided according to the justice and equity of the particular case. And while there are some isolated cases (and they are but few), which seem to rest upon no very intelligible principle, it will be found, we think, that the following general principles may be confident- ly said to resmt from, and to reconcile, the great majority of the cases, both in England and in this country: First. The law, following the dictates of equity and natural justice, in cases of this kind, adopts the principle of just compensa- tion for the loss of injury actually sustained; considering it no greater violation of this principle to confine the injured party to the recovery of less, than to enable him, by the aid of the court to extort more. It is the ap- plication, in a court of law, of that principle long recognized in courts of equity, which, disregarding the penalty of the bond, gives only the damages actiially sustained. This principle may be stated, in other words, to be, that courts of justice will not recognize or en- force a contract, or any stipulation of a con- tract, clearly unjust and unconscionable; a principle of common sense and common hon- esty so obviously in accordance with the dic- tates of justice and sound policy as to make it rather matter of surprise that courts of law had not always, and in all cases, adopted it to the same extent as courts of equity. And, happily for the puiposes of justice, the tendency of courts of law seems now to be towards the full recognition of the principle, in all cases. This principle of natural justice, the courts of law, following courts of equity, have, in this class of cases, adopted as the law of the contract; and they will not permit the par- ties by express stipulation, or any form of language, however clear the intent, to set it aside; on the familiar ground, "conventus pri- vatomm non potest publico juri derogare." But the court will apply this principle, and disregard the express stipulation of parties, only in those c-ases where it is obvious from the contract before them, and the whole sub- ject-matter, that the principle of compensa- tion has been disregarded, and that to carry out the express stipulation of the parties, would violate this principle, which alone the court recognizes as the law of the contract The violation, or disregard, of this prin- ciple of compensation, may appear to the court in various ways — from the contract, the sum mentioned, and the subject-matter. Thus, where a large sum (say one thousand dollars) is made payable solely in consequence of the non-payment of a much smaller sum (say one hundred dollars), at a certain day; or where the contract is for the performance of several stipulations of very different degrees of im- portance, and one large sum is payable on the breach of any one of them, even the most trivial, the damages for which can, in no rea- sonable probability, amount to that sum; in the first case, the court must see that the real damage is readily computed, and that the principle of compensation has been overlook- ed, or purposely disregarded; in the second case, though there may be more difficulty in ascertaining the precise amount of damage, yet as the contract exacts the same large sum for the breach of a trivial or comparatively unimportant stipulation, as for that of the most important or of all of them together, it is equally clear that the parties have wholly departed from the idea of just compensation, and attempted to fix a rule of damages which the law wiU not recognize or enforce. We do not mean to say that the principle above stated as deducible from the cases, is to be found generally announced in express terms, in the language of the courts; but it wiU be found, we think, to be necessarily im- plied in, and to form the only rational founda- tion for, all that large class of cases which have held the sum to be in the nature of a penalty, notwithstanding the strongest and most explicit declarations of the parties that it was intended as stipulated and ascertained damages. It is true, the courts in nearly all these cases profess to be construing the contract with reference to the intention of the parties, as if for the purpose of ascertaining and giving effect to that intention; yet it is obvious, from these cases, that wherever it has appeared to the court, from the face of the contract and the subject-matter, that the sum was clearly too large for just compensation, here, while they will allow any form of words, even those expressing the direct contrary, to indicate the intent to make it a penalty, yet no form of words, no force of language, is competent to the expression of the opposite intent. Here, then, is an intention incapable of expression in words; and as all written contracts must be expressed in words, it would seem to be a mere waste of time and effort to look for such an intention in such a contract. And as the question is between two opposite intents only, and the negation of the one necessarily Im- plies the existence of the other, there would seem to be no room left for construction with liULES OP CONSTRUCTION— PENALTIES AND LIQUIDATED DAMAGES. 5G3 reference to the Intent. It must, then, be manifest that the intention of the parties In such cases is not governing consideration. But some of the cases attempt to justify this mode of construing the contract with ref- erence to the intent, by declaring, in sub- stance, that though the language is the strong- est which could be used to evince tlie iul.eiitiun In favor of stipulated damages, still, if it ap- pear clearly, by reference to the subject-mat- tor, that the parties have made the stipulation without reference to the principle of just compensation, and so excessive as to be out of all proportion to the actual damage, the court must hold that they could not have intended it as stipulated damages, though they have so expressly declared. See, as an example of this class of cases, Kemble v. Parren, 6 Bing. 141. Nove this. It is true, may lead to the same result in the particular case, as to have placed the decision upon the true ground, viz., that though the parties actually intended the sum to be paid, us the damages agreed upon between them, yet it being clearly uncon- scionable, the court would disregard the in- tention, and refuse to enforce the stipulation. But, as a rule of construction, or interpreta- tion of contracts, it is radically vicious, and tends to a confusion of ideas in the construc- tion of contracts generally. It is this, more thaji anything else, which has produced so mucti apparent conflict in the decisions upon this whole subject of penalty and stipulated damages. It sets at defiance all rules of in- terpretation, by denying the intention of the parties to be what they, in the most imam- biguous terms, have declared it to be, and finds an intention directly opposite to that which ii? clearly expressed — "divinatio, non Interpretatio est, qua? omnino recedit a litera." Again, the attempt to place this question up- on the intention of the parties, and to make this tho governing consideration, necessarily implies that, if the intention to make the sum stipulated damages should clearly ap- pear, the court would enforce the contract ac- cording to that Intention. To test this, let It be asked, whether, in such a case, if it were admitted that the parties actually intended the sum to be considered as stipulated dam- ages, and not as a penalty, would a court of law enforce It for the amount stipulated? Clearly, they could not, without going back to the technical and long exploded doctrine which gave the whole penalty of the bond, without reference to the damages actually sustained. They would thus be simply chan- ging the names of things, and enforcing, un- der the name of stipulated damages, what In its own nature is but a penalty. The real question in tliis class of cases will be found to be, not what the parties intended, but whether the siun is, in fact, in the na- ture of a penalty; and this is to be determin- ed by the magnitude of the sum, in connec- tion with the subject-matter, and not at all by the words or the understanding of the parties. The intention of the parties can not alter it. While courts of law gave the penalty of the bond, the parties intended the pay- ment of the penalty as much as they now intend the payment of stipulated damages; it must, therefore, we think, be very obvious that the actual intention of the parties, in this class of cases, and relating to this point, is wholly immaterial; and though the courts have very generally professed to base their decisions upon the intention of the parties, that intention is not. and can not be made, the real basis of these decisions. In en- deavoring to reconcile their decisions with the actual intention of the parties, the courts have sometimes been compelled to use lan- guage wliolly at war with any idea of inter- pretation, and to say "that the parties must be considered as not meaning exactly what they say." Homer v. Flintoff, 9 Mees. & W., per Park, B. May It not be said, with at least equal propriety, that the courts have sometimes said what they did not exactly mean? The foregoing remarks are all to be confin- ed to that class of cases where it was clear, from the sum mentioned and the subject-mat- ter, that the principle of compensation had been disregarded. But, secondly, there are great numbers of eases, where, from the nature of the contract and the subject-matter of the stipulation, for the breach of which the sum is provided, it is apparent to the court that the actual dam- ages for a breach are uncertain In their na- ture, difficult to be ascertained, or impossible to be estimated with certainty, by reference to any pecuniary standard, and where the parties themselves are more intimately ac- quainted with all the peculiar circumstances, and therefore better able to compute the ac- tual or probable damages, than courts or ju- ries, from any evidence which can be brought before them. In all such cases, the law per- mits the parties to ascertain for themselves, and to provide in the contract itself, the amount of the damages which shall be paid for the breach. In permitting this, the Liw does not lose sight of the principle of compen- sation, which is the law of the contract, but merely adopts the computation or estimate of the damages made by the parties, as being the best and most certain mode of ascertain- ing the actual damage, or what sum wiU amount to a just compensation. The reason, therefore, for allowing the parties to ascer- tain for themselves the damages in this class of cases, is the same which denies the right in the former class of cases; viz.. the courts adopt the best and most practicable mode of ascertaining the sum which will produce just compensation. In this class of cases where the law per- mits the parties to ascertain and fix the amount of diimages in the contract, the first inquiry obviously is, whether they have done 564 INTERPEETATION OF CONTRACT. so In fact? And here, the intention of the parties is the governing consideration; and in ascertaining this intention, no merely technical effect will be given to the particu- lar vrords relating to the sum, but the en- tire contract, the subject-matter, and often the situation of the parties with respect to each other and to the subject-matter, will be considered. Thus though the word "penal- ty" be used (Sainter v. Pergason, 7 Man,, G. & S. 71G; Jones v. Green, 3 Younge & J. 299; Pierce v. Fuller, S Mass. 223), or "for- feit" (Noble v Noble, 7 Cow. 307), or "for- feit and pay" (Fletcher, v. Dycke, 2 Term R. 32), it will still be held to be stipulated damages, if, from the whole contract, the subject-matter, and situation of the parties, it can be gathered that such was their in- tention. And in proportion as the difficulty of ascertaining the actual damage by proof is greater or less, where this difficulty grows out of the nature of such damages, in the like proportion is the presumption more or less strong that the parties intended to fix the amount. It remains only to apply these principles to the case before us. It is contended by the plaintiff in error, that the payment of the one thousand dollars mentioned in the cove- nant of Jaquith is not made dependent sole- ly upon the breach of the stipulation not to go into business in Trenton, but that it ap- plies equally— First, to the agreement to sell to Hudson his interest in the goods; sec- ond, to sell his interest in the books, notes, accounts, etc.; and, third, to the agreement to dissolve the partnership. But we can per- ceive no ground for such a construction. The language in reference to the sale of the interest in the goods, books, notes, accounts, etc., and that in reference to the dissolution, is not that ot a sale in futuro, nor for the dissolution of the partnership at a future period, but it is that of a present sale and a present dissolution— "does hereby sell," and "the copartnership is hereby dissolved," is the language of the Instrument It is plain, from this language, from the subject-matter, and from all the acts of the parties, that these provisions were to take, and did take, Immediate effect. There could be no pos- sible occasion to provide any penalty or stipulated damages for the non-performance of these stipulations, because this sale and dissolution would already have been accom- plished the moment the contract took effect for any purpose; and, until it took effect, the stipulation for the one thousand dollars could not take effect or afford any security, nor would Hudson be bound or need the se- curity. But it remained to provide for the future. If Jaquith were to be at liberty to set up a rival store in the same village, it might seriously affect the success of Hud- son's business; and we are bound to infer, from the whole scope of this contract, that Hudson would never have agreed to pay the consideration mentioned in It, nor to have entered into the contract at all, but for the stipulation of Jaquith "that he will not en- gage in the mercantile business in Trenton, for himself or in connection with any other one, for the space of three years from this date, upon the forfeiture of the sum of one thousand dollars, to be collected by said Hudson as his damages." This stipulation of Jaquith not to go into business, is the only one on his part which looks to the future; and it is to this, alone, that the language in reference to the one thousand dollars ap- plies. Any other construction would do vio- lence to the language, and be at war with the whole subject matter. The damages to arise from the breach of this covenant, from the nature of the case, must be not only uncertain in their nature, but impossible to be exhibited in proof, with any reasonable degree of accuracy, by any evidence which could possibly be ad- duced. It is easy to see that while the damages might be very heavy, it would be very difficult clearly to prove any. Their nature and amount could be better esti- mated by the parties themselves, than by witnesses, courts, or juries. It is, then, pre- cisely one of that class of cases in which it has always been recognized as peculiarly appropriate for the parties to fix and agree upon the damages for themselves. In such a case, the language must be very clear to the contrary, to overcome the inference of intent (so to fix them), to be drawn from the subject-matter and the situation of the parties; because, it is difficult to suppose, in such a case, that the party taking the stipulation intended it only to cover the amount of damages actually to be proved, as he would be entitled to the latter without the mention of any sum in the contract, and he must also be supposed to know that his actual damages, from the nature of the case, are not susceptible of legal proof to anything approaching their actual extent. That the parties actually intended, in this case, to fix the amount to be recovered, is clear from the language itself, without the aid of a ref- erence to the subject-matter, "upon the for- feiture of the sum of one thousand dollars, to be collected by the said Hudson as his damages." It is manifest from this lan- guage that it was intended Hudson should "collect," or, in other words, receive this amount, and that it should be for his dam- ages for the breach of the stipulation. . This language is stronger than "forfeit and pay," or "under the penalty of," as these might be supposed to have reference to the form of the penal part of a bond, or to the form of action upon it, and not to the actual "col- lection" of the money. It is, therefore, very clear, from every view we have been able to take of this case, that it was competent and proper for the parties to ascertain and fix for themselves the RULES OF CONSTRUCTION— PENALTIES AND LIQUIDATED DAMAGES. 5C5 amount of damages for the breach complain- ed of, and equally clear that they have done so In fact. From the uncertain nature of the damages, we cannot say that the sum in this case exceeds the actual damages, or that the principle of compensation has been vio- lated. Indeed, it would have been perhaps difficult to discover a violation of this prin- ciple had the sum in this case been more than it now is, though, doubtless, even in such cases as the present, if the sum stated were so exces.sive as clearly to exceed all reasonable apprehension of actual loss or in- Jury for the breach, we should be compelled to disregard the intention of the parties, and treat the sum only as a penalty to cover the actual damages to be exhibited In proof. In this case the party must be held to the amount stipulated in his contract The second exception, therefore. Is not well talien; the court properly refused to charge as requested, and no error appearing in the record, the judgment of the circuit court for the county of Wayne must be af- firmed. The other justices concurred. DISCHARGE OF CONTRACT. \^1 HOBBS et al. v. COLUMBIA PALLS BRICK CO. (31 N E. 756. 157 Mass. 109 F Supreme Judicial Court of Massachusetts. Suffolk. Sept. 7, 1892. Exceptions from superior court, Suffolk county. Action by John S. Hobbs and others against the Columbia Falls Brick Company on a contract foi the sale and delivery of brick. Judgment for plaintiffs, and defend- ant excepts. Exceptions sustained. S. L. Whipple, for plaintiffs. P. T. Benner, for defendant. MORTON, J. We think that upon the facts which were agreed, and upon those which appeared in evidence from the testi- mony of its president and treasurer, the de-. fendant was entitled to go to the jury on the 'que stion whether there had been "an abandon- men^__ofthe contract bj^hej la intiff^^^ and the ir assignee s which was assented to by^e defendant. The court ruled generally upon the evidence thus disclosed that it would not constitute a defense. If, therefore, the de- fendant can avail of it In any aspect as a de- fense, it is entitled to a new trial. As the case was left it appeared that after the con- tract was entered into the plaintiff s Jjg came i nsolvent, and made a_ voluntary assignment for the benefit _^ Jiheir creditors, of which t hey ^ave notice to the defendant They aft- erwards took the benefit of the Insolvent act, and compounded with their creditors by com- position proceedings. No reference to the contract was contained in the schedule of as- sets which they filed In the insolvency court, and there was no allusion to it in the state- ment of their assets which was made by them at a meeting of their creditors. The contrac t w as an executory one, and the pla intiffs ! knt^ w ^>^f^t the tjrifk ■^ere to be made at the plain- t iffs' P lace., In Main e. They gave no notice, directly or inrHrPctly, tn tTiP dgfgJljj'^t, till May 12th,— more than four months afterThe notice of their assignment,— that they would claim performance, and did not till then offer to pay or secure the defendant under the contract The defendant sold the brick some time in ApriL We tbiBkJt_would_haveJieen competent for the. Jury to And, tmder these circumst ances. tha t_the_-Plai iitiffs had aban - ^^£3^_the ^contractTand that thg defen dant had_a5sented_tp^ and acted up on such aba n- donmejit. The jury could_properly_ have re- garded the ^lyTng of tbe_noticg^_o L the assi gn- ment as equivalent to the pl aintiffs sayin g that they' could ^61 go~on"wit h the contra ct, especially wheDTtaken in~cqnnect|o n w ith all tb^e~blheF circumstances. Morgan v. Bain^ L. R. 10 C. P. 15^ in re Steel Co., 4 Ch. Div. lOS; Ex parte Stapleton, 10 Ch. Div. 586; Ex parte Chalmers, L. R. 8 Ch. App. 289. While the fact that the plaintiffs became insolvent after entering into the contract would of itself not have terminated the con- tract, it was competent for the jury to find that the notice which they gave to the de- fendant of the assignment, and their subse- quent conduct, justified the defendant in the assumption that they had abandoned the con- tract The conduct of the assjgnees,_assum- ing that the~ cont r act pasied to them, d oes not put the matter in any better shape for the plaintiffs. It was their duty within a rea- sonable time after the assignment to elect whether to proceed or not with the contract, and to notify the defendant accordingly. Ex parte Chalmers, supra; Ex parte Stapleton, supi'a. They did not do this. On the con- trary, when the defendant's treasurer in- quired whether they were going to claim the contract, the reply which he got left on his mind the impression that they were not. They did nothing to Indicate that they were going to claim it, and did not offer to pay or in any way secure the defendant for the per- formance of the contract. They continued to hold the pr»perty assigned to them till April 17th, without taking any action In reference to the contract when they reconveyed it to the plaintiffs, who could derive no higher right from the assignees than they themselves possessed. Inasmuch as there must be a new trial, and the case may then go off on the ground which we have indicated above, or the facts relating to it may not then be as now stated, we have not considered the ef- fect of the testimony offered by the defendant, tending to show that the plaintiffs were hope- lessly insolvent at the time when they made the contract, and knew themselves to be so, and concealed the fact from the defendant, who was thereby Induced to enter Into the contract. Exceptions sustained. (^3^ SUBSTITUTED AGREEMENT. CUTTER V. COCHRANE 567 (116 Mass. 408.) Supreme Judicial Court of Massaclrosetts. Suffolk. Dec. 28, 1874. Contract for money had and received, with counts on an atireement to repay money paid by the plaintiff to the defendant on a con- tract, alleged to have been rescinded. At the trial in the superior court, before Rockwell, J., the plaintiff offered evidence tending to prove the following facts: In November, 1870, the plaintiff and the defend- ant, acting through his agent, Hugh Coch- rane, e ntered into a v erbal agreement for pur- ch ase Ey the Dia iTitTff~7>? tj ig^defendnnt.^ as guardiai . of ce rtaiiLJPl""r bpirs,.-Qf,-n ^imell- IngHI ouse and la nd connected, Iheressith,^ Stri- ated In Maide n. On November 11, the plain- 'tirt made rhe first payment, and took a re- ceipt and memorandum, as follows: "Re- ceived of Mrs. E. J. Cutter one hundred dol- lars, on account of purchase of estate known as CcK:hrajne estate, situated op court leading from Main street; price, forty-seven hun- dred dollars; to be paid in instalments of sev°aty-fiv^ dollars per month, until June 1, 1871. ;iL whk.i time amounts of payments to equal one thousand dollars, and one thou- sanr doilars to be paid in quarterly payments from that date. Balance on mortgage for thite year- from chat date. Bond for deed to be siren on that date, and deed when the balanr^- >if the second thousand is paid. Hugh Cochraic, f r Guardian." The authority of Hugh Cochrane to act as agent for the defendant vnis not denied. Va- rious payment.: were rm-de by the plaintiff, from November 11, ^870, to Octo'oe/ 17, 1871, amounting to $950 In all. for which receipts wen; given, sometimes signed by the defend- ant and sometimes by Hugh Cocar"jie In his behalf. In Noveniber, 1870, the plaintiff entered into possession of the house and premises under the agreement of sale, and continued to oc- cupy the same until July, 1872. About April 1,^ 1872, no further payments having been made, Hugh Cochrane wont to the house of the plaintiff, and said the defendant was dis- satisfied, on account of the delay in making the payments; a nd it w na thpn j^gT-P ^d that the_a£:reement ^j jsale sb ould_b e rescinded ; that t he plainti ff should give up possession of the^prein ises _t o~tbe defenda nt,^ but should hold~possession and keep tlie house furnished for a while, to enable the defendant to make a more advantageous sale of the same, and pay the defendant interest at eight per cent. per annum on the purchase money for the time she should have occupied; and that the defendant, in consideration thereof, should pay back to the plaintiff the several sums she had paid towards the purchase, with eight per cent, per annum on the several payments from the date of such payments, and al.s:o re- fund to her $00.03, being the amount of taxes on the estate paid by her. The plaintiff re- mained, and kept the house furnished until the defendant sold the same on May 24, 1872, and, as soon as requested thereafter, gave up the possession to the purchaser on July 18, 1872. In September, 1872, she went to the store of the defendant in Boston for a settle- ment, where she found Hugh Cochrane and the defendant together, and where Hugh, in the defendant's presence, made out a state- ment of the balance due the plaintiff, placing it at $207.75; that it differed from the above agreement only in that it did not embrace the item of taxes, nor did It allow her inter- est on the payments made by her; while on his side was claimed an item of .$24.25, al- leged to have t)een paid by him for insurance, and which he contended ought to be paid by the plaintiff. The plaintiff declined to set- tle on these terms, and subsequently, and be- fore suit brought, made formal demand for aU the money paid by her as above, which was refused by the defendant After the evidence was closed, the defend- ant's counsel asked the Judge to rule that the plaintiff was not entitled to recover, on the ground that there was no consideration for the alleged promise on the part of the de- fendant. The judge so mled and ordered a verdic*: for the defendant, and the plaintiff alleged exceptions. N. B. Bryant, for plaintiff. J. P. Convvjrsj aiid E. A. Kelly, far defendant AMES, J. Whether by her failux-e to make the stipulated payments the plaintiff had lost all her rights under the original contract, and forfeited the money which she had paid, is a question which the defendant is not enti- tled to raise in this case. The settlement which was had between the parties proceed- ed upon a very different ground. An agree- ment to rescind a previous contract imports that, until It Is rt^sclnded. It Is recognized by botli parties as subsisting and binding. J^ regci iidln g ^ of a previotis_contract contai ning; milt uarstlpulaSong is a relensp by p-TclTp ailjj tqliiejitlier^^ The release by one Is the con- sideration for the release by the other, and the mutual releases form the consideration for the new promise, and are sufficient to give it full legal effect. I The defendant is bound to account for the money that has been paid to him, not because the purchase did not go into effect, but because, in consideration of mutual releases, he has excused the plain- . tiff from its fulfilment, has consented to a / new agreement, and has expressly promised to accoimt for the money. Exceptions sustained. 668 DISCHARGE OF CONTKACT. 3I BUTTERFIELD v. HABTSHORN. ^ (7 N. H. 345.) ^J^ Superior Court of New Hampshire. Hillsbor- ough, Dec. Term, 1S34. Assumpsit for money bad and received. On trial, it appeai-ed that prior to the 29th of September, 1826, one John Hartshorn was duly appointed executor of the last will of Benjamin Hartshorn, whose estate was de- creed to be administered in the insolvent court. The plaintiff presented a claim against said estate, of $45.06, which was allowed by the commissioner, and a decree of the pro- bate court was passed on the 29th of Sep- tember, 1826, for the payment of the claim allowed the plaintiff and other creditors of the estate. It further appeared, that on the 17th of November, 1826, the said John Hartshorn, executor, sold and conveyed to the defend- ant a farm which had belonged to the tes- tator, for the sum of $1900, and that upon that occasion, by agreement between him and the defendant, the defendant retained a sufficient amount of the purchase money to pay the claims against said estate which re- mained unpaid, among which was that of the plaintiff; and the defendant agreed with the executor to pay to the plaintiff the amount of his claim, to recover which this action is brought. Upon this evidence, verdict was taken for the plaintiff by consent; and it was agreed that judgment should be rendered upon the verdict, or that the verdict should be set aside, and judgment entered for the defend- ant^ as the court should direct. J. U. Parker, for plaintifL E. Parker, for defendant. UPHAM, J. In this case, the plaintiff hav- ing a claim against the estate of Benjamin Hartshorn, which had been allowed, it be- came the duty of the executor to provide for its payment, if he had assets. If the execu- tor might have compelled the plaintiff to a suit upon the bond, in order to recover the amount of his claim, it was no part of his duty as executor to adopt that course; and it is evident that he intended to provide for the payment of the plaintiff's claim without compelling him to resort to legal proceed- ings. For this purpose h e directed the a mount due the plaintiff to be paid out o£ funds_ left by him with the defendant, a ris- ing from the s ale^_of__landa hp"inngnn^ j-n t he est^ e: and "the defendant cannot pre- vail in the exception which has been taken by him in this case,— that it was in the power of the executor to have done differently, and to have withstood payment until compelled by a suit upon his bond. Besid,cs, the exec- utor is a stranger to this suit; and, if this defence should be considered as open to him (see, contra, Adams v. Dakin, 2 N. H. 374), it is open only to him, and cannot avail to this defendant. The second exception which has been tak- en is equally untenable. The defendant pur- chased the land, and thereby became in- debted to the executor. By agreement be- tween the executor and. the defendant, the defendant retained, not the land, as that Jiad passed to him by the sale, but a portion of the purchase money, for the purpose of pay- ing the debts of certain creditors of the es- tate, among which was the debt due the plaintiff; and if there is a sufficient privity betwixt the defendant and the plaintiff, the purchase money so retained is the plaintiff's money, for which the defendant is liable to him in an action for money had and re- ceived to his use. As between the plaintiff and defendant, it is the .same as if the land bad been paid for, and the executor had then deposited a portion of the purchase money with the defendant, directing him to pay. certain debts due from the executor, and! Hvhich the defendant promised to pay. But the principal question in this case is, whether . the plain tiff can avail himself of the^^j)romise^ made j2J__theJdefendant to t_he executor, — he" ^ever havi ng agreed to accept thedefendant^s his dibtor, nor having made any -demand of him for the rnpney ^rior^ to t h^ prTirnpenceme nt of this_suit. Can the plaintiff avail himself of the de- posit of the money by the executor with the defendant, and the defendant's promise to Hartshorn, the executor, to pay it, without some evidence of assent on the part of the plaintiff before the institution of a suit? It is apparent, that in cases of this kind, a contract, in order to be binding, must be mutual to all concerned, and that until It is completed by the assent of all interested, it is liable to be defeated, and the money de- posited countermanded. It seems, also, to be clear, that no contract of the kind here attempted to be entered into can be made, without an entire change of the original rights and liabilities of the parties to it. There is to be a deposit of money for the payment of a prior debt, — an agreement to hold the money for this pur- pose, and an agreement on the part of a third person to accept it in compliance with this^ arrangement. It is made through the agen- cy of three individuals, for the purpose of payment; and it can have no other effect than to extinguish the original debt, and cre- \ate a new liability of debtor and creditor be- 'twixt the person holding the money and the individual who is to receive it On any oth- er supposition there would be a duplicate liability for the same debt; and the depos- ite, instead of being a payment, would be a mere collateral security, — which is totally different from the avowed object of the par- ties. What proceedings will constitute an assent to this contract and discharge the original debtor? Will a demand of the money have this SUBSTITUTED AGREEMENT. 5G9 • effect? An Individual who should receive ad- vices from his debtor of a deposite of money for hia beuelit, would hardly deum a demand of the money, accompanied by a refusal of payment, a discharge of the prior debt. A suit to recover money is no more decisive evidence of an election to receive it, than a demand; and the l)ringing of a suit cannot be considered evidence of an assent to a con- tract, and tliereby support the action which had no foundation until It was brought. To entitle the plaintiff to recovg r, there must be nn PYting nishment of the o riginal 4obt; a nd it i s quesU onablewhether, in cas- es o flrois ^kind, anyl ElSg can "ope rate aa a n ~exti n guishme nt of the origlnald ebtbnt pay - mem, or an expres s agreem entof the cred it- or~to _tak fi. another"~pe rsQP.-aa-bi3 debtor^in discharge of the original claim. A contract of this description is an extinguishment of the original debt. Coxon v. Cbadley, 3 Bam. & C. 591. The bailee is either a stakeholder— holding the money to abide a contingency, and bound either to deliver it to the depositor, if he re- mands it, or to the creditor if he claims it,— 1^ the first claimant thereby making it his mon-*^ ey; and of course, If the creditor's money then a payment of the original debt, — or the bailee is liable solely to the depositor, there being no privity of contract betwixt himself ^and any other person. If this be true, the money being holden npy- on a contingency neither party can sue with- out a prior demand. It is unnecessary to de- termine, in this case, whether suit may be made with demand. If so, it must be solely on the ground that by such demand the prior debt is extinguished. It is important in this case to refer to such authorities as bear upon It. The case of Hall V. Marston, 17 Mass. 575, directly con- flicts with the principles laid down as above. But one authority is cited to sustain it, which Is from Com. Dig., "Action upon the Case upon Assumpsit," E: "If money be given to A to deliver to B, B may have an action." The reference In Comyn Is to RoIIe, Abr., and Haidres, 321. The case In H^rdres is Bell vs. Cliaplaln, where A deliver- ed goods, the property of B, to C, who prom- ised, for a consideration given by A, to de- liver them to B; and It was holden that either A or B might sue C for not delivering them. In that case the goods delivered were the property of B, and no question arose as to the extinguishment of a prior debt. The case In Massachusetts proceeds upon the same principle. The court remark, that "wher- ever one has In his hands the money of an- other which he ought to pay over, he is liable to this action." The question of title to the money, which settles the question of a right of action. Is assumed to be in the plain- tiff. The case of Weston v. Barker, 12 Johns. 276. is similar to that in 17 Mass., except that there was an express agreement to hold the balance of the money subject to the or- der of the depositors; and an order was afterward.s drawn by them for the money in favor of the plaintiff, of which the defend- ant had notice. In this case Spencer, J., dis- sented. Neilson v. Blight, 1 Johns. Cas. 205, Is a similar authority. The cases, Wilson v. Coupland, 5 Barn. & Aid. 228; Meerh v. Moes.sard, 1 Moore & P. 8; Israel v. Douglas, 1 H. Bl. 239; Tat- lock V. Harris, 3 Term R. 180,— differ from this case. In those cases there was an agree- ment of all tlie parties operating to the ex- tinguishment of the original debt, and a new promise was made by the person holding the money directly to the creditor. These cases are similar to Cuxon v. Chadley and Heaton v. Angler, above cited. On such a promise there is no doubt a suit would lie, Surtees v. Hubbard, 4 Esp. 203; Gill v. Brown, 12 Johns. 385; Beecker v. Beecker, 7 Johns. 103; HoUey v. Rathbone, 8 Johns. 149. It would be Irrevocable on the part of the promissor. A person cannot revoke an au- thority to his debtor to pay a debt to a tliird party, the creditor of the former, after the debtor has given a pledge to such third party that he will pay the money according to the authority. Chit Cont. 185. These cases are distinct from the case now under consideration. Up to the time when this action was brought, the plaintiff had never consented to receive the money of this defendant, and there never had been any contract made betwixt them relative to it. The case, Wharton v. Walker, 4 Barn. & C. 1G3, conflicts with the Massachusetts and New York authorities, and is directly in point in favor of the defendant One Lythgoe was Indebted to the plaintiff in the sum of £4. Ss. and gave the plaintiff an order for that sum upon the defendant, who was his tenant to be paid out of the next rent that became due. When the next rent became due, Lyth- goe left in the hands of the defendant the amount due to the plaintiff, and gave a re- ceipt for the whole rent; and the defendant promised to pay the plaintiff, who after- wards brought an action for money had and received. It was held that the action could not be maintained, because the plaintiff's debt against Ljthgoe was not discharged. Bayley, J., says, that if, by an agreement betwixt the three parties, the plaintiff had undeiiaien to look to the defendant and not to his original debtor, that would have been binding, and the plaintiff might have maintained an action, on the agreement; but In order to give that right of action there must be an extinguishment of tlie original debt But no such bargain was made in this case. Upon the defendant's refusing to pay the plaintiff, the latter might still sue Lyth- goe, as In Coxon v. Chadwell, 3 Bam. & C. 591. The other judges severally expressed a con- curring opinion. See, also, Bourne v. Mason, 1 Vent 6; Crow 570 DISCHARGE OF CONTRACT. T. Rogers, 1 Strange, 192; Williams v. Ever- ett, 14 East, 532; Johnson v. Collins, 1 East, 104; Stewart v.. Fry, 7 Taunt. 339; Lowther V. Berry, S Mod. 116; Crifford v. Berry, 11 Mod. 241; 3 East, 171. The general rule applicable to cases of this kind is, that the legal interest In the con- tract resides with the party from whom the consideration moves, notwithstanding it may inure to another's benefit, or even is to be performed to another in person. So that "were A to promise B, for some considera- tion he has given him, to pay C a sum of money, B, and not C, would be legally con- cerned in this agreement-" Tliis rule Is laid down by Hamm. Part Act. p, 6, after adverting to the authorities referred to in Comyn, and cited in 17 Mass., which he says militate against the general rule, and are unsustained by subsequent decisions. There is some conflict in the authorities on this subject, but we consider the general rule as laid down, and which is recognized as settled law in England, to be the better opin- ion, and established on sound legal principles. The verdict, therefore, for the plaintiff, must be set aside, and judgment entered for thfr defendant- PERFORMANCE— PAYMENT. 571 nATFIELD. , o -4 L^(^ MARKLE V. (2 Johns. 455.) Sapreme Court of New York. 1807. This case came before the court on a writ Of error, from the court of common pleas, of Dutchess county, founded upon a bill of ex- ceptions. The suit below was an action of assumpsit. The declaration contained a count for divers cattle, sold and delivered to the defendant; and counts for money paid, &c. lent, &c. and for money had and received, to the use of the plaintiff, and an insimul computassent. Plea, non-assumpsit. Upon the trial, the plaintiff below proved, that in October, 1805, he sold to the defendant, who was a butcher, a number of cattle, for 120 dollars, and that the defendant paid him the said sum in bank bills, which the plain- tiff. recei.vciL jn . lull payment. Among the bilTs so received, there was one for fifty dol- lars, of the Boston Branch Bank of the Unit- ed States. The plaintiff, on the same day on which he sold the cattle and received the bills in payment, paid the same note of 50 dollars to a third person; and soon afterwards, it was discovered to be counterfeit, and was re- turned to the plaintiff. The same b ill was pro duced, and proved jo becouaterfelt, upon the trial. No evidence was given that the "deJendant below knew the bill to be counter- feit, and he was proved to be an illiterate man. The counsel for the defendant, at the trial, Insisted, that the plaintiff was not en- titled to recover upon the proof; but the court charged the jury that the evidence was sulli- cient, and that the plaintiff was entitled to recover the fifty dollars, with interest, though there was no evidence of any fraud in the defendant, and the jury found accordingly. The blU of exceptions was taken to this opin- ion, and V. > charge of the court below. Mr. Ruggles, for plaintiff in error. J. Tall- madge, contra. KENT, C. J. The justice of this ease is clearly with the defendant in error. He part- ed with his goods to the plaintiff, without re- ceiving the compensation which was intend- ed. It would be matter of regret, if the law obliged us to regard a payment in counter- feit, instead of genuine bank bills, as a valid payment of a debt, merely because the cred- itor did not perceive and detect the false bills, at the time of payment. The rexisonablo doctrine, and one which undoubtedly agrees with the common sense of mankind, is laid down by Paulus in the Digest; and has been incorporated into the French law. He says, that if a creditor receive by mistake any thing in pnyTnt>nt. different from what was due, and upnn the supposition that it was the thing actually due, as if he receive brass In- stead of gold, the .debtor is not discharged, and the creditor, upon offering to return that which lie received, may demand that which Is due by the contract. Si quum aurum tibi promisissem, tibi Ignoranti quasi anrura aes solverim, non liberabor. Dig. 46. 3. 50; Poth. Tr. Obi. No. 4l>5. But there are some ancient dicta in the Eng- lish law, which advance a contrary doctrine, in respect to gold and silver coin. It is said, that the crcnlitor must at his peril count and examine the money at the time he receives It. Bank biUs are not money, in the strictly legal and technical sense of the term, but as they circulate, and are received as money, in the ordinary transactions of business, it becomes material to examine into the authority and solidity of these positions In the books. In Shep. Touch, p. 140, It is laid down, and with a reference to the Terms de Ley, that if pay- ment be made paiUy with counterfeit coin, and the party accept it, and put it up, it is a good payment Shepherd's Touchstone i.s supposed to be the work of Mr. Justice Dod- eridge, and as such, it has always been con- sidered as a book of authority; but it loses some of its character for accuracy, when we consider it as a posthumous and surreptitious publication. The book to which it refers, gives no increased weight to the dictum. The same doctrine is contained in Wade's Case. 5 Coke, 114, but it is supported only on the au- thority of the case of Vane v. Studley, which is there cited, in which it is said to have been adjudged, that where the lessor demanded rent of his lessee, according to the condition of re-entry, and the lessee paid the rent to the lessor, who received it and put it into his purse, and afterwards discovering a counter- feit piece among the money, he refused to carry it away, and re-entered for the condi- tion broken, the re-entry was held not to be lawful, because he accepted the money at his peril. This case of Vane v. Studley is cited cautiously, and stated, as said to have been so adjudged. With regard to Wade's Case itself, it did not require the aid of any such decision, because no such question arose in that case, and it was adopted by Lord Coke merely In illustration of his opinion. Per- haps, the question arising upon the forfeiture of a condition, might have induced the judges the more readily to adopt the rule, though in Shepherd the rule is laid down as general, and without any special application. These loose dicta, and this doubtful case of Vane v. Studley, are then, as far as I have been able to discover, all the authority which we have for this ancient doctrine; and it is to be re- marked, that we find no subsequent sanction of it, through aU the accumulated decisions in the English law. On the contrary, the modern decisions are founded on different principles. They apply another and juster rule to cases of payment in negotiable paper. These cases are so very analogous to the one before us, that it would be very difficult to raise a distinction. In Stedman v. Gooch, 1 Esp. 3, the plaintiff took in payment, for goods sold to the defend- ant, three promissory notes of one Finlay, payable at the house of one Brown, and gave 572 DISCHARGE OF CONTRACT. the defendant a receipt to that effect. It ap- peared that Finlay had no effects in the hands of Brown, and the plaintiff sued upon the original demand, before the notes were pay- able. Lord Kenyon held, and his opinion was afterwards concurred in, by the other judges of the king's bench, that if such a bill or note was of no value, the creditor might con- sider it as waste paper, and re^oiTto his orfg- iual demand. If the plaintiff in that case was not boimd by the acceptauce of the prom- issory note of Finlay, because it proved after- wards to be of no value, why should the de- fendant in the present case, be bound by the acceptance of a pretended promissory note from the Boston Branch Bank, when the note proves, afterwards, to be coimterfeit? Wheth- er it be the promissory note of an individual, or of a corporation, can make no difference. The creditor, in both cases, is presumed to have been ignorant of the want of value in the note. He cannot be chargeable with neg- ligence. In not detecting, in the iirst instance, the want of value, because, the means of as- certaining whether the note was or was not of value, may be, and probably were, equal- ly in both cases, absent from the party. The like doctrine was advanced in the case of Owenson v. Morse, 7 Term R. 64, and it has been adopted and applied to a similar trans- action of payment, in a negotiable note, in the case of Roget v. Merritt (decided in this court) 2 Gaines, 117. The negotiable note of a third person, and a bank note, are equally promissory notes, for the payment of money; and if the receiver may be presumed in the one case, and not in the other, to have taken upon him the risk of the solvency of the drawer, there is no pre- sumption in either case, that he assumes up- on himself the risk of forgery. In the case of goldsmiths' notes, which were formerly ac- ^ > counted as ready cash, Lord Ch. J. Holt did, indeed, once say (Tassel v. Lewis, 1 Ld. Raym. 743) that the receiver gave credit to the goldsmith, and took them at his peril; but this doctrine has since been exploded by repeated decisions (Strange. 415, SOS, 1248). Even were we to admit, (which I do not) that there might be some difficulty in surmounting the opinion of Lord Coke, as to gold and silver coins, yet, as to bank bills and other promis- sory notes, we must conclude, upon the strength of authority, as well as upon the rea- son and justice of the case, that the charge of the court below was correct, and that the judgment ought to be affirmed. I have not thought it requisite to pay much attention to the case of Price v. Neal, 3 Bur- rows, 1354, which was cited in the argument, because, I consider that case as decided upon principles, which have no application to the case before us. It was there held, to be in- cumbent upon the acceptor of a forged bill of exchange, to satisfy himself of the genuine- ness of the drawer's hand, before he accepts and pays it, as he must be presumed to know his correspondent's hand; and that it was not incumbent upon the defendant to inquire into that fact- That decision, therefore, turned upon the negligence imputable to the one party and not to the other. No such imputa- tion arises in the present case. The accept- ance of a bill, and the indorsement of a note give a credit to the pap«r, which, ui>on com- mercial principles, the party is not afterwards at liberty to recaU. Judgment affirmed. PERFORMANCE— PAYMENT. 573 (^ CHELTENHAM STONE & GRAVEL CO. y. / GATES IRON WORKS. ^ (16 N. E. 923, 124 111. 623.) r-3' Supreme Court of Illinois. May 9, 1SS8. Appeal from appellate court. First district, Frederic Ullmann, for appellant. Henry H. Anderson, for appellee. SHELDON, C. J. This Is an appeal frijm a judgment of the appellate court for the First district, affirming a judgment of the supe- rior court of Cook county. The case made by the evidence was this: Betw een March_19 and October 15, 1 885, appelleeTTtie Gate s Ttqp \Vnri>s;^ snifr~hpppiTivriT the Ci icltenham Stone & Qravei (jompduy. machinery and counts were rendered monthly, and payments were made on account from time to time. During August, 1885, appellee receiv ed fro m appeUant Iron to the amount of $!?7j0^, and a note dated August 10, 1885, for $1,000, due 90 days from said date, signed by the Chelten- ham Improvement Company, payable to_ap- pellee. Both these items, the iron and the note, were credited appellant on appellee's books, and the statement of account rendered appellant on September 1st showed a credit of the two amounts, and the statement of account thereafter rendered started off with the balance after deducting these amounts. When the transactions for the season were closed, appellee's books showed an Indebt- edness against- appellant of $145.97. This amount is conceded to be still due. Prior tn^ t he maturity _ji£_Jt§_iiote, the improvement (jmnnn y hadbecome insolvinT7~a"nd the no te was not paid. Annellee sued the improve- ment company on the note, and obtained judg- ment, but was unable to collect it. Then It bro ught this suit against appellant on' the a c- T^'iimt',' ipiiormi: tlu> credit it li.id given for the, amount of the ni,t.c', ;md on th e trial tender ed appellant an a^si-iimont of " its iudirme nt against the irniirM\ 'inont com pany. Appel- lant recovered a ver°Jict and judgment for $1,145.97, the full amount of its claim. It is Insisted that the presumption of law from these facts was that the note was taken in absolute payment; and, as there was no eridence offered tending to rebut that pre- sumption, appellee was, on the case made by it, only entiUod to a verdict for $145.97; and that the court erred in not granting appel- lant's motion, made when the appellee rested its case, to direct the jury to find a verdict for appellee for $145.97, and also in not giv- ing the following Instruction asked by appel- lant, but refused, viz.: 'Tf the jury believe, from the evidence, that the note referred to was credited by the plaintiff to the defend- ant on the books of the plaintiff, and included as a credit in statement of account after- wards rendered by the plaintiff to defendant, then the presumption of law is that said note was received in payment, and the burden of proof is upon the plaintiff to show that such was not the intention of the parties at the time said note was given; and if the plaintiff has failed to show such Intention, that the .same .should not be received as payment, by a fair preponderance of testimony, the jury will find for the defendant on that issue." Story, in his work on Promissory Notes (sec- tion 104), lays down the rule in this respect as follows: "In general, by our law, unless otherwise specially agreed, the taking of a promissory note for a pre-existin g d ebt or a ^contemporaneous consideration is tn atcd pri - ma facie as a conditional payment only; that Is, as payment only, if it is duly paid at matu- rity. But in some of the American states a different rule is applied, and, unless it is other- wise agreed, the taking of a promLssorj- note Is deemed prima facie an absolute payment of the pre-existing debt or other considera- tion. But, In each case, the rule Is founded upon a mere presumption of the supposed in- tention of the parties, and is open to explana- tion and rebutter, by establishing, by proper proofs, what the real Intention of the parties was; and this may be established, not only by express words, but by reasonable impli- cation from the attendant circumstances." In Tobey v. Barber, 5 Johns. G8, a note of a third person was given for rent due, and a receipt given for the rent The note was not paid, the maker having become insolvent be- fore the note became due. The court ^ay: "The taking of the note was no extinguish- (ment of the debt due for the rent It is a rule, well settled and repeatedly recognized in this court, that taking a note, either of the debtor or of a third person, for a pre-ex- isting debt ib no payment imless it be ex- pressly agreed to take the note as payment , and to run the risk of its being paid, or lia- / less the creditor parts with the note, or is I [guilty of laches in not presenting it for pay- ment in due time; and it was held that the inference arising from the reeceipt was not enough to establish such a positive agree- ment." Johnson v. Weed, 9 Johns. 310. is to the same effect, — a case where the note of a third person had been given in payment of a debt, and a receipt in full given. Melntyre v. Kennedy, 29 Pa. St. 448; Himter v. Moul, 98 Pa. St. 13; Brown v. Olmsted, 50 Cal. IGJ, —are authorities in support of the rule that taking the note of a third person for a pre- existing debt is no payment unless it be ex- pressly agreed to take the note as payment The decisions In this state are essentially to the same effect Walsh v. Lenaon, 98 IlL 27; Wilhelm v. Schmidt &i 111. 185. It is insisted that although the acceptance of the note merely might not be payment yet, treating the note as payment, as was done here, by crediting it as payment on ap- pellee's books, and in statements of account rendered, shows that the note was taken in payment. We do not consider this any strong- er evidence. In that regard, than were the receipts in full which were given in the cases 574 DISCHARGE OF CONTRACT. cited from Johnson. In regard to the receipt in Johnson v. Weed, the court remarked: "It might still have been understood, consist- ently with the words of it, [receipt,] that the note was received in fiill, under the usual condition of its being a good note." And so in Brigham v. Lally, 130 Mass. 4S5, a case where such a note of a third person had been taken on an open account, and the debtor credited therewith, it was held that the trial com-t properly refused to rule that placing the cote to the credit of the defendant upon the plaintiff's journal and ledger, and making no other appropriation of the money, was in law a payment. We think the ruling of the court here complamed of is entirely well sus- tained by authority. Counsel for appellee, in his address to the jury, was allowed by the court, against ap- pellant's objection, to argue that a* sch«me had existed whereby one of the defendant's officers had foisted the note upon the plain- tiff, knowing the maker to be or about to become insolvent, so that the loss might fall upon the plaintiff; and an instruction asked by the defendant that there was no evidence in such regard, and that the jury should dis- regard the remarks of counsel with refer- ence thereto, was refused; and this action of the 'court is assigned for error. While these remarks of counsel may have been improper, and the court might well have interposed as requested, we cannot say that the refusal to do so v,-as such error as should cause a re- versal of the judgment The judgment of the appellate court must be aflaxmed. 6 PERFORMANCE— TENDER. 575 / <2 LAMB V. LATHROP et aL ^^ ^ (13 Wend. 95.) Supreme Court of New York. Oct, 1834 Demurrer. The plaintiff declared on a note made by the defendants, bearing date 8th March, 1831, whereby the defendants prom- ised, one year after date, fCLimy ^" ^^^^ plain,- tifC $50 in a horse , heat Bto,cJj,lor iirst rale pine lumber, to be ' delivered in Cortland vil- lage, at the markeFprice^at the ajppraisal qjC. I WO [jt^ 'l'Si'iLs Of (]i. uaiues _ of _ BarUett and Rowley, uiili use, ;md alleged non-per form - ance. The defendants pleaded, that when the note became due, to wit, on the Sth March, 1832, they tendered to the plaintiff the siiid sum of $50 and the interest tliereof for onejf- year, in a horse, appraised by Bartlett at $70,v averring that Rowley was not on that day in| the state, but was in the state of Pennsyl\a- 1 nia, wholly beyond the reach, power and con- /I Itrol of the defendants, so that they could not/ procure his attendance to unite with Bartlett || in the appraisal of the horse, and concluding Ijy alleging that the plaintiff refused to re- ceive the horse so tendered by them; where- fore they prayed •Judgment, &c This plea did not contiiin the averment of tout temps prist. The plaintiff replied, that after the tender of the horse, to wit, on the 10th day of March, &c. at, &c. he demanded the same horee of the defendants, which horse then was in their possession, and that the defend- ants refused to deliver the horse to him, un- less he would pay to thejn $16.50,_the diff e^ ence between ie_appraised value of th e horse an d the snm of $50, witli the interest there o f for one year; concluding with a veriflca- fiou and prayer of judgment. To which rep- lication the defendants demurred. M. 7. Reynolds, for plaintiff. J. A. Spen- cer, for defendant:. SA'v'AGE, C. J. The principal qnestlon arises up.on the plea of the defendants, the validity ci which is denied by the plaintiff, and the Iirst ground urged on his part is, that it L"^ not averred that the defendant is still read> to deliver the horse. It is contended, on the authority of Chipman's Essay on Con- tracts, p. 96, that such an averment is nec- essary; and that. In a case like this, the rep- lication of a subsequent demand and refusal authorizes a recovery upon tlie original cause of action. The learned author of. this essay argues that as there is at this day no case where property is lost to the creditor by a tender and refusal, it follows that every plea of tender must contain an averment that the property is still ready. It is true tliat prop- erty tendered is not lost to the creditor by his neglect or refusal to receive it; but it is also time that, i n the case of a tender of spe cj^c articles, the courts in thl"s state conside r the contract to deliver or pay such articl es" dis- cEarged. The tender, properly made, is a Batistaction ol: tne denl'and; the debt is paid, and the articles tendered become the proper- ty of the creditor, and afterwards are kept at his risk and expense. In the case of Slingerland v. Morse, 8 Johns. 478, the com-l say, "We consider it a complete bar to the suit upon the contract" In Slielden v. Skin- ner, 4 Wend. 528. 529, this subject was again considered by this court, and such a tender held analogous, as it was in the List case cited, to the French consignation, whereby the debtor is dLscharged. The creditor must resort to the specilic articles, and to the per- .«;on who tendered them as the bailee thereof. The relation of debtor and creditor no longer subsists between those parties, but that of trustee and cestui que trust, or lyailor and bailee. See 2 Kent, Comm. 508, 509. Itl 'such be the law, the defendant in this case) ' was not bound to aver that the horse was still ' iready; and the plea is not faulty for want] •of such averment. ' The remaining obje-^tions to this plea are, that it is not averred that the appraisal was by the persons agreed upon, nor at the mar- ket price, nor that the tender was made Ln satisfaction of the debt No authority la cit- ed to show that it should be averred that the offer was made in satisfaction of the debt; the precedents are not so, nor do I see any ne- cessity for such an averment. The plaintiff complains that the defendant did not pay him $50 and interest in a horse, according to his contract. The^ef ^ndnnt an^n , j ;hat_ on th e day, ^Tid^nj^ti^f^i^nfL ftppnintxiil^hrtrnrlrrrrl tcP Sim th e said sum in a hor seTaccoriTrngto his contract"; that is enou^E Nor can it be necessary, iB such cese, to aver that the ap- praisement was at the market price. Th.^ market price is the price of every article, un- less some other is mentioned The market price, I apprehend, was inserted as directory to the appraisers and the averment that tlio horse was appraised by the appraisers is suf- ficiently minute and certain; to appraise at any other price would be a violation of duty, even if the words market price were omitted. The presumption, in such cases is, tliat the persons designated have done their duty; not that they have violated It But the objection that there is no averment that the property in question was appraised by the persons agreed upon is not so easily obviated. The defendants, by their contract, agreed to pay $50 and Interest for one year, in a horse, at the appraisal of Bartlett and Rowley. They aver that they tendered the horse at the appraisal of Bartlett; that is n<>t a compliance with the contract The ap- praisement by two p ersons is a condit ion pre- cedent t"o~~tne Tender; the plaintiff h a s not agreed t o accept a horse at the ap praisement 0? iJart lett in6he, n oFof Bartlett and any ctn - £r except Kowiey i It is not sufficient that the act done may be equivalent The plain- tiff relied upon the judgment of those particu- lar persons; the defendants undertook to pro- cure It: if they failed, they must pay the money. There is a debt due the plaintiff; 676 DISCHARGE OF CONTRACT. he agrees to receive a horse, provided it is appraised by Bartlett and Rowley. The de- fendants agree to pay the money, if they do not deUver a horse at the appraisal of Bart- lett and Rowley. This is the legal effect of the contract. It is majiifest that the defend- ants have not procured the appraisal of the two persons named; and as they have no t p erformed the condition upon wiuen tSev worA t^ ho p-;^pnse^ from the payment ._Qf_ th e money, it follows that the mnngy must be Daid. It is not for the defendants to say m?rt-tiiey can make a new agreement for the plaintiff; nor can the court do it The plain- tiff has substantially said, I will not agi-ee to take a horse at all, unless at the appraisal of these two men. I will not take the appraisal of one of them, but of both. The defend- ants entered voluntarily into the agreement, and they must perform it. This case ap- pears to me to be analogous to the cases upon fire policies, where, if the certificate of certain persons is required, no other can be yubstituted- 6 Term R. 719; 1 H. BL 254; 2 H. BL 574. This view of the subject Is suflficient to authorize a judgment in favor of the plaintiff. ' It is not improper to remark, that the plea is defective in another particular, though the point is made here as an objection to the replication. The horse, it seems, was ap- praised at $70, and the defendant claLuis the payment of the difference in money, before he is liable to deliver tlie horse. Under what agreement of the plaiutiff do the defendants set up this claim? The plaintiff hath said that he will receive a horse worth $53, on certain conditions; but it does not follow that he is to receive a horse of a greater value, and pay the difference. He has entered into no such agreement. The defendants must tender the horse according to agreement; if he is of greater value, they must either tender him at the amount to be paid, or keep him, and pay the money. The plea is bad, and the plaintiff is entitled to judgment, with leave to defendants to amend, on payment of costs. CONDITIONS SUBSEQUENT. 577 ^■^^ EAY V. THOMPSON. (12 Gush. 281.) //2'< Supreme Judicial Court of Massachusetts. Middlesex. Oct. Term, 1853. Assumpsit for the price of a horse sold to the defendant The defence was that the horse was sold under a con ditional cojii j;act, with a rij^ht to return__h im w unin a speci flod t j^ me, If IJofgatTs^factory toTHe ' ^fGIlflant, and that the^efendanf cII3 so rettlTn him . At the trial in the court of "T'Unriil^~pIt»as before Mellen, J., the plain- tiff offered evidence tending to prove that during the time limited by the contract for the return of the horse, and while he was in the defendant's possession, the defend- ant misused and abused the horse, whereby he was materially Injured and lessened in value, and that the plaintiff did not ac- cept him in return; which evidence, the presiding judge, on objection by the defend- ant, rejected, and, the verdict being for the defendant, the plaintiff alleged exceptions to the ruling. • HOPK, 8KL. CAS. CONT. — 87 J. W. Bacon, for plaintiff. G. A. Souier- by, for defendant, PER CURIAM. The evidence offered by the plaintiff ought to have been admitted, to prove, if he could, that the horse had been abused and injured by the defendant, and so to show that the defendant had put it out of his power to comply with the con- dition, by returning the horse. The pale was OD a condition subsequent; that Is, on condition, ho did not elect to keep the horse, to return him within the time limited. Be- ing on a condition subsequent, the prop- erty vested presently in the vendee, defeasi- ble only on the performance of the condi- tion. If the defendant. In the meantinie, disabled himself from performing the con- dition,— and if the horse was substantially injured by the defendant by such abuse, he would be so disabled,— then the sale became absolute, the obligation to pay the price became unconditional, and the plain- tiff might declare as upon an indebitatus assumpsit, without setting out the condi- tional contract. Moss v. Sweet, 3 En;?. Law & Eq. 311, l(i Adol. & E. 493. New trial ordered. 576 DISCHARGE OF COXTKACT. njo LAKE SHORE & M. S. RY. ARDS. CO. V. RICH- (38 N. E. 773, 152 IlL 59.) ^ Supreme Court of Illinois. June 19, 1894 Jt^ '•^-f%f Said contract recited by way of preamble f - '-T^liat one of its objects was to provide a cheap- Appeal from appellate court. First district Assumpsit by Edward S. Richards, sur- vivini; partner of the firm of Richards, May- nard & Co.. against the Lake Shore & Michi- gan Southern Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Re- versed. The other facts fully appear in the following staement by BAILEY, C. J.: This was a suit in assumpsit, brought by Edward S. Richards, surviving partner of the firm of Richards, Mayuard »& Co., against the Lake Shore & Michigan Southern Railway Company, to recover damages for breaches of a contract, the material provisions of which will be stated presently. Prior to the exe- cution of said contract, grain, brought by western railroads to Chicago, and destined, either before or upon its arxlval in that city, for transportation by rail to the east, was de- livered by the western to the eastern rail- roads, and was by the latter weighed and transferred from western to eastern cars. At that time the transfer of such grain was accomplished by placing the loaded and emp- ty cars side by side on pai-allel tracks, and by shoveling the grain from one car to the other by hand. The weighing was done on track scales, by first weighing the loaded car, and then weighing it after it was unload- ed, the difference between such weights being the weight of the grain. This process was expensive, and the weights thus obtained, as the evidence tends to show, were, owing to a variety of causes, liable to be inaccurate. Richards, the plaintiff, was the inventor an d patentee of_ a. new_process_ for^weighing _and transferring grain in buUj L j^hich w as claimed to be cheaper than the old method, and which furnished tuore accurate weights, tMiE_Cfiuld be had by the existing mode of weighing. By this process, the loaded cars of grain were run up onto an elevated track va. a trans- fer house, and empty cars were placed along- side of them on a lower track. The grain was then shoveled by steam shovels from the loaded cars into hoppers, where it was weighed, and then allowed to run by force of gravity into the empty cars below. Ne- gotiations were thereupon entered into be- tween Richards and the defendant company with a view to the adoption by the latter of this new mode of weighing and transfer- ring grain, and these negotiations resulted in a written contract between the company, of the first part, and Richards, of the second part, bearing date January 2, 1884, which con- tract was aftei-wards assigned by Richards to the firm of Richards, Maynard &. Co., con- sisting of Richards and John W. Maynard- er method of transferring grain, mUl feed, and seed from one car to another than the one employed by said company, and for that puipose to use the device of Richards, se- "vcured to him by letters patent, etc.; and that Richards intended to erect and build a grain transfer house on the Land thereinafter de-- scribed, for the purpose of so handling, weigh- ing, and trausfeniug in bulk such grain, mjll feed, "and seed as might be deUVered to him for tliat purpose by the comp3.ny. The com- pany then agreed, in consideration of the nominal rental of $10 per year, and of the covenants in the contract to be kept and per- formed by Richards, to lease to him, for the term of 10 years, certain land upon which to erect such transfer house and the necessary approaches thereto, and also agreed that, as soon as such transfer house and approaches were constructed, U would build and main- tain thereon and through such transfer house such track or tracks as might be necessary to transact the business contemplated by said agreement, and do aU switching of loaded and empty cars to and from said transfer house at its own expense, and without cost to Richards, provided that the actual cost there- of should be taken into account in determin- ing the fair amount to be paid Richards, as provided in the following covenant: "Third. Said first party further covenants and agrees that, in case there shall be any saving to it in switching, weighing, and transferring of products in this agreement referred to through the methods and devices adopted by said sec- ond party, over and above the actual cost of doing the same work under the ways and methods now in use by said first party, then, and in that event, it will pay to second party one half of said saving, the just and actual ainoimt tHeFeoF to 15e~aseertained and deter- mined as provided in covenant 'First,' of 'Mutual Covenants,' said amounts, if found due, to be paid to said second party on or before the middle of each month for the month preceding." Richards, on his part, agreed at his own cost and expense to con- struct and maintain, for the full period of 10 years, on said land, a transfer house and appi'oaches, suitable and proper for carrying out the purfHDse in said contract expressed, and furnish and supply said house with hop- per scales and every other device necessary to properly weigh and transfer said grain, etc. He also covenanted as follows: "Sec- ond. That he will receive, weigh, and trans- fer all products contemplated by this agree- ment which may be delivered to his said transfer house by or under the direction of said first party with promptness and dis- patch, and within such time as to prevent any accumulation of cars or freight, where- by shippers might have just ground of com- plaint; and, if said second party shall fail to transfer as fast as required, the said first party may transfer by such other method as BREACH— EENUNCIATION. 679 it deems proper, and said sec-ond party shall do all said work in trausfer Ikjusu at Lis own cost and expense, without cost to said first party: provided, that the actual cost of iluiuii said work sliall be taken Into account in deternuninj,' the savinj?, if any, between the Ricliards method of transferriuf^ grain and the methods in use by the first party at tlie date of this aj^reenieut, and also for tlie pur- pose of determining the just amount to be paid to said second party, as provided in cove- nant 'Third' of first party: piovided, also, that the cost of weijihinj,' sucli products shall not be considered in determining the actual cost of such transfer." Said conti-act then contained various para- grapiis denominated "Mutual Covenants," the first of wliich provided the mode for ascer- taining and determining the cost of transfer- ring grain, etc.. by the new method, and tlie amount of money thereby saved. The only other provisions of the contract material to the present controversy are the third, fourtli, and sixth of said "Mutual Covenants," which are as follows: "Third. And it is mutually covenanted and agreed that all shipments originating at points west of Chicago, and properly billed thrcnigh to eastern points, and requiring transfer through said house, shall be classed 'through shipments,' and be trans- ferred in the same manner as reconsigned projjcrty, and upon the same basis of c-ost to said first party; it being specially imdei'- stood and agreed that under no circumstances is said first party to be charged for any weights upon any transfers made through this house, but nothing in this agreement contained shall be so construed as to prevent said second party from charging such fees as may be agi-eed upon between him and the owner of the propcn-ty delivered for weights and transfer, and for such other service as he may render in connection therewith, and from collecting his charges as provided in the following mutual agreement. Fourth. It is further mutually understood and agreed that said second pai'ty is to receive his compensa- tion for his time, labor, and investments em- ployed in building, operating, and maintain- ing said transfer house entirely from the weighing of property passing through it, and from the owners thereof, and not from said first party, except as provided in covenant third of Siiid first party; and said first party sliall not make use of the weights obtained from said second party in the conduct of its business for any other purpose than billing property to destination, but. upon the request of said second party, said first piirty will col- lect such weighing charges as he may show are due to him, in the same manner as other advanced charges are collected, and pay the amount so collected to said second party on or before the middle of each and every month." "Sixth. If at any time differences should arise between the said parties hereto as to its spirit, meaning, or execution, such differences shall be settled by a reference of all matters in dispute to three disinterested arl)itratoi-s, each of the jiarties hereto to se- lect one, and the two so chosen to select a third, and the decision of any two of the court so formed shall be binding between the parties hereto, final, and without appeal." The declaration, after setting forth said contract in hiec verba, alleges lliat on the 2;kl day of January, 1.S.S4, the plaintiff as- signed all his interest in said contract to the firm of Richards, Maynard & CfJ.. and that said_ assi gnment was ratifie d and c-onfirmed by_jhe_jlefeiulan t ; that said firm thereuixm erected, on the land described in the contract, a grain transfer house and hopper scales, and all machinery pertaining thereto, the same being completed June 24, 1.SS4, wlien said firm entered upon the business of trans- ferring grain, etc., from car to car. aud"weigh- ing the same, as provided for in the agree- ment; that said firm could not conveniently transfer mill feed through their transfer house, and that tlie right to have such tran.s- fer of mill feed and the weighing thereof was waived bj- the defendant; that .'^aid firm cfin- tinued to transfer and weigh all such grain and seed as was presented to them by the defendant at their transfer house to be trans- ferred and weighed until June IG, ISSG, and kept and performed the contract on their part, yet the defendant, although often re- quested so to do, has not kept and performed said contract on its part; that on June 10. ISSG, the defendant abandoned said contrac t, and neglected and refused to perform it. aud, without reasonable or just caiisc, refused to be_bound thereby; that,'"af{eFnie abandon- ment of said contract by the defendant, and its refusal to perform the same, to wit, in December, 1SS7. said Maynard died; that said fir m a nd the plaintiff have always^been ready and willing and hav e offered the 5e- "feUdunt to con tinueTfu the s ervi ce ^nd £in- p ToymenF^f the de fendant in^ weijrhing^and traiisferring gi-ain and seed as provided by said contract; that the weights so obtained by said firm in weighing and transferring grain and seed were of the value of $1.40 per car, and that the number of c-ars annually transferred on the track to the cars of the defendant company amounted to IS.OOO; that, to wit. IS.fMX) cars of grain and seed per an- num will continue to be transferred en said track to the cars of the defendant company; that the saving to the defendant in the switching, weighing, and transfer of grain and seed by the plaintiff's method is $5,000 per annum; that the plaintiff's firm was obliged to and did lay out and expend in building and equipping their transfer house a large sum of money, and that said tr:ms- fer house is valuable only for the puiposes contemplated by said agreement, and that in consequence of the refusal of the defend- ant to be boses no other, except, perhaps, that this vio- lation of the contract by the defendant iB 5S6 DISCHARGE OF CONTRACT. failing to make the payment, may justify the plaintiff in ti-eating the conti-act as re- scinded." Or they could go ou and complete the contract, and, at the end, recover the amount due thereunder. There was in that case no refusal to receive locomotives under the contract, nor were plaintiffs forbidden to complete it nor was it in any way put out of their power to do so. Yery many of the cases before referred to have been decided since the Palm Case, which, it must be re- mai-ked, cites no authority sustaining the view of that case contended for by appellant in this ease. The learned judge who wrote in the Palm Case says: "I have examined all the authorities referred to by counsel, and have made diligent search myself, but have found no case where the plaintiff had been allowed to recover for losses sustained by not being permitted to complete the conti-aet, un- less he has been prevented from going on with his work by the positive affirmative act of the other party, or where the other pai-ty has neglected to do some act, without which the plaintiff could not, in the nature of things, go on with his contract * * *" After giving instances of conditions preced- ent the learned judge holds, as before said, that the failiu-e to pay would not authorize the plaintiff to treat the contract as aban- doned by the defendant unless payment in a specified time and manner, was, by the contract made a condition precedent to per- formance by the plaintiff. The case of Christian Co. v. Overholt 18 111. 223, is simi- lar in its facts to the Palm Case, and is de- cided upon the same principle. In that case it is said: "The plaintiffs could only re- cover for prospective profits where they have been prevented from going on, either by some affirmative act of the defendant as by being ordered to desist from further work, or by the omission to perform some condition preced- ent to the further prosecution, as to fm-nish or do something necessary to its further prog- ress." The breach there alleged was a fail- ure to pay an Installment as it fell due under the contract and the case was disposed of upon the authority of the Palm Case. Stress is laid by counsel upon the words, "prevented from going on." It is apparent from the lan- giiage of the court especially in the Overholt Case, that physical prevention was not con- templated, for the illustration given shows that at least an order to desist from the work would be a prevention, within the meaning of the term as used. While, in those cases, there was no failure to perform a condition precedent or a legal prevention from going on with the work under the con- tract which would authorize the plaintiffs to treat the contract as repudiated by the other party, and sue for prospective damages, and the court so held, still the cases clearly rec- ognize that when there is a failm-e to per- form a precedent condition, or there is a le- gal prevention of performance, by one party, the other may treat the contract as aban- doned by him, and bring suit for future prof- its or prospective damages. The same lan- guage, i. e. that the party suing must be "pre- vented" from performance, has been used in numerous cases, but, wherever the attention of the com-t has been directly called to the sense in which the word has been used, it has been held not to mean that there must be physical prevention, but that any acts, conduct, or dcclai-ations of the party, evin- cing a clear intention to repudiate the con- tract and to treat it as no longer binding, is a legal prevention of performance by the other party. Thus, in Hosmer v. Wilson, su- pi-a, it was held that an absolute refusal of the defendant to accept tie manufactured article when it should be completed was to be considered in the same light, as respects the plaintiff's remedy, as an absolute physi- cal prevention by the defendant; citing, in support Cort v. Railway Co., supra; Derby V. Johnson, 21 Vt 21; Clark v. Marsiglia, 1 Deuio, 317; Hochster v. De Latour, supra. In Cort V. Railway Co., supra, the plain- tiffs contracted to supply the defendants with 3,900 tons of iron chairs to be used in railway construction. They manufactm-ed and deUv- ered various quantities of chairs from May, 1847, \mtil December, 1S49, when the defend- ants informed plaintiffs that they did not want any more, and not to send any more, leaving 2,113 tons undelivered. Whereupon, phiintiffs brought suit to recover damages, in- cluding loss of profits. It was objected that to entitle the plaintiffs to recover, they should have proved that the chairs had been made and had been tendered in the manner pro- vided by the contract, or at least before the bringing of the suit etc. In delivering the opinion of the com*t Lord Campbell, C. J., said: "We are of opinion that the jmr were fuUy justified, from the evidence, in finding that the plaintiffs were ready and willing to perform the contract although they never made and tendered the residue of the chairs. In common sense the meaning of * * * 'readiness and willingness' must be that the noncompletion of the contract was not the fault of the plaintiffs, and that they were dis- posed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the par- ties for whom the goods are to be manufac- tured ?" And after showing that if, after hav- ing accepted a part tlie defendants resolved not to accept the balance, the effect of com- peUing the plaintiffs to proceed with the man- ufacture and tender of them would be the enhancement of the damages the defendant would be required to pay, his lordship pro- ceeds: "Upon the last issue, was there not evidence that the defendants refused to ac- cept the residue of the chairs? If they had said, 'IMake no more for us, for we will have nothing to do with them,' was not that re- fusing to accept or receive them according to the contract? But the learned coimsel for the defendant laid peculiar stress upon tlie BREACH— RENUNCIATION. 587 ^ words [of the plea], 'nor did they prevent or discharge the plaintiffs from supplying the residue of the chairs, and from the fm-ther execution of the contract.' We consider the material part of the allegation which the last plea traverses to be that the defendants re- fused to receive the residue of the chairs. But, assuming that the whole must be proved, we think there is evidence to show that the defendants did prevent and discharge the plaintiffs from supplying the residue of the chairs, and from the further execution of the contract. It is contended that 'prevent,' here, must mean obstruction by physical force; and, in answer to a question from the com-t, we were told it would not be a preventing of de- livery of goods if the purchaser were to write, in a letter to the pereon who ought to sup- ply them, 'Should you come to my house to deliver tliem, I will blow your brains out.' But may I not reasonably say that I was pre- Tcnted from completing a contract by being desired not to complete it? Are there no means of preventing an act from being done, except by physical force or brute violence?" After reviewing and commenting upon cases cite done, stilThoIfTTng fE~Tis prospectively binding for the exercise of the option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer." And it was there held that, after the defendnnt had signified his deter- mination not to be bound by the contract. the plaintiff was entitled to bring his action Immediately, and was not obliged to wait un- til after the day for the performance to begin had arrived. In Frost v. Knight, supra, the defendant had promised to marry the plain- tiff upon the death of his father. While his father was still living, he repudiated the en- gagement, and announced his intention not to fulfill his promise. The plaintiff, without waiting for the death of the father, at once brought her action to recover damages for the breach. And the court there say: "The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract was to be executed, and then hold the other party responsible for all the consequences of nonperformance. But in that case he keeps the contract alive for the benefit of the other party as well as 688 DISCHARGE OF CONTRACT. his own; he remains subject to all his own obligations and liabilities under it, and en- ables the other party, not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circum- stance which would justify him in declining to complete it On the other hand, the prom- isee may, if he thinks proper, treat the repu- diation of the other party as a wrongful put- ting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such- dam- ages as would have arisen from the nonper- formance of the contract at the appointed time, subject, however, to abatement in re- spect of any circumstances which may have afforded him the means of mitigating his loss." The case of Freeth v. Burr, supra, al- ready quoted from, is an instructive case, and fully sustains Hochster v. De Latour, and other cases of like tenor before cited. It is there said that the test of whether there is a renimciation or not is "whether the acts and conduct of the party evince an intention no longer to be bound by the contract." In Iron Co. V. Naylor, 9 Q. B. Div. 648, Jessel, M. R., reaffirms and approves the doctrine of Freeth v. Burr, and holds that the question of whether there has been a renimciation of the contract by the defendant is a question of fact, to be determined by the considera- tion of the nature of the breach, and the cir- cumstances under which it occurred. The case, however, went off upon the holding that the circumstances were not sufficient to evince a determination on the part of the de- fendant to put an end to the contract, and to be no longer bound by it The decision was affirmed by the house of lords on appeal, Ix>rd Selborne there saying: "You must look at the actual circumstances of the case, in order to see whether the one party to the contract is relieved from its future perfoi-m- ance by the conduct of the other. You must examine what that conduct is, so as to, see whether it amounts to a renunciation, — to an absolute refusal to perform the contract- such as would amount to a rescission if he had the power to rescind, and whether the other party may accept it as a reason for not performing his part; and I think that noth- ing more is necessary, in the present case, than to look at the conduct of the parties, and see whether anything of that kind has taken place here." Iron Go. v. Naylor, L. R. 9 App. Cas.4.38. See, also. Roper v. Johnston, L. R. 8 C. P. 167; Ex parte Stapleton, 10 Ch. Div. 586; Planche v. Colbum, 8 Bing. 14; Railway Co. v. Xenos, 13 C. B. (N. S.) 82.5. The principle seems to have found general recognition by the courts of the country, a few only of which need be noticed. In Mas- terton v. Mayor, etc., 7 Hill, 61, the plain- tiffs undertook and partially performed their contract with defendants to furnish mate- rial, etc, for the construction of the city hall. By order of the defendants, the work was indefinitely suspended, and the plaintiffs brought suit to recover damages, including future profits. The principle announced in the English cases before noted is approved. Beardsley, J., there said: "The party who is_ready_lQ_peiiorm is entitled to full in- demnity f OJLJthe loss of his contract He should not be made__to_ snuffer by the de- linquency of the oUier party, but ought to recover ..precisely-wlLa±he_would Ijave made byjperiormance. This is as sound in morals as it is in law. * • * The plaintiffs were not bound to wait till the period had elapsed for the complete performance of the agree- ment nor to make successive offers of per- formance, in order to recover all their dam- ages. They might regard the contract as broken up, so far as to absolve them from making further efforts to perform, and give them a rigLV: to recover full damages as for a total breach." The case of Hosmer v. Wilson has been already cited. In Derby v. Johnson, supra, after holding that by the order of the defendants to discontinue the work, the plaintiffs were prevented from fur- ther performance, it is said: "The plaintiffs might, in addition, in another form of ac- tion, have recovered their damages for being prevented from completing the whole work. In making these claims the plaintiffs would be acting upon the contract as still subsist- ing and binding, and they might well do so, for it doubtless continued binding on the de- fendants." In Hinckley v. Pittsburgh Steel Co., 121 U. S. 264, 7 Sup. Ct 875, the defend^ ant agreed to purchase from the plaintiff steel rails, to be drilled as the defendant might direct The defendant refused to give the directions, and at his instance the rolling of the rails was postponed until after the time of delivery, when the defendant re- fused to accept any rails under the contract It was there said: "The defendant con- tends that the plaintiff should have manu- factured the rails, and tendered them to the defendant, and, upon his refusal to accept and pay for them, should have sold them in the market at Chicago, and held the defend- ant responsible for the difference between what they would have brought on such sale and the contract price. But we think no such rule is applicable to this case. This was a contract for the manufacture of an article, and not for the sale of an existing article. By reason of the facts found as to the conduct and action of the defendant the plaintiff was excused from actually manu- facturing the rails, and the rule of damage applicable to the case of the refusal of a pur- chaser to take an existing article is not ap- plicable to a case like the present." In Haines v. Tucker, 50 N. H. 307, the defend- ants agreed to purchase of the plaintiffs 5,000 bushels of malt, and to receive and pay for the same at the i-ate of 1,000 bush- els per month. Although plaintiffs were pre- pared to deliver the 1,000 bushels per month, the defendants called for and received less BREACH— RENUNCIATION. 589 tlian 1,000 bushels during the firet three months. The plaintifis informed defendants that they were prepared to furnish the malt according to the terms of the contract, and requested them to receive the same at the rate of 1,000 bushels per month, which the defendants refused to do. The undelivered malt, not utilized by plaintiffs themselves, was sold on the market, and plaintiffs brought assumpsit against the defendants to lecover damages for a breach of the con- tract And it was tliere held— following Cort V. Railway Co., supra, and oUier cases — tliat the conduct of the defendants amounted to an unqualified renunciation of the contract, and that after such renuncia- tion it was no longer neces^:^■y that the plaintiffs should hold theuiselves in readi- ness to perform, or to go to the trouble and • expense of offering what had already been refused- In Smith v. Lewis, 21 Conn. C24, the doctrine as announced in Cort v. Rail- . way Co. was approved and followed, and again reaffirmed in the same case. 2G Conn. 110. In these cases the holding was that, under a conti-act containin g mutual an d_dc- pendent_co veuants^ refusal on the part^ of "the defendant to p^erform obviated the ne- cessity of pe rforma nce, or tencler of per- formance, on the j)art of the pLaiutiff, after stich refusal. See, also, U. S. v. Behan, su- pra; Crabtree v. Messorsmith, 19 Iowa, 179; Ilolloway v. Griffith, 32 Iowa, 409; Dugau V. Anderson, 3G Md. 5G7; Burtis v. Thomp- son, 42 N. Y. 24G; Howard v. Daly, 61 N. Y. ."G2; Smoot's Case, 15 Wall. 3G; Dingley v. Oler, 117 U. S. 503, 6 Sup. Ct 850; Mount- joy V. Metzger (Pa, St) 12 Am, Law Reg. 2?ft S.) 442. ^'^ It follows that upon principle and au- I'tthority, we are of opinion that insti-uctious 1/2 and 3, when considered together, as they ^/^must be, announced the law to the jury cor- ^ ' fectly. The objection that the jury were '^j thereby left to determine what were the "substantial provisions of the contract" is, in view of the coui-se of the trial and facts proved, obviated by the instructions 7, 12, 13, 16, and 17, given for appellant By the seventh, as will be observed, the jury were told that, if the defendant committed bi-each- es, still, if they did not defeat the substan- tial objects of the contract or render it unattainable by proper performance on the part of Richards, ^Nlaynard & Co., then the plaintiff could not recover. By the 12th they were told that the mere failure or refusal of the defendant to pay the plaintiff or his firm any sum of money demanded and claimed to be due on account of services ren- dered under the contract could not be con- strued as an abandonment of the conti-act by the defendant such as would entitle the plaintiff or his firm to maintain the present action. By the sixteenth the jury were told, as a matter of law, that to entitle tbe plain- tilf to recover in this case, it was necessary for him to establish, by a preponderance of the evidence, that he and Richards, May- nard & Co. were, by tlie acts of the defend- ant, prevented from performance of said con- tract on their part cic By the seventeenth . they are again told that a failure to pay money due and owing to the plaintiff under the contract was not such an act or omis- sion. In itself, on tho part of the defendant as would prevent the plaintiff from complet- ing the contract And by the thirteenth In- struction given on behalf of the defendant the jury were told that if they believe from the evidence that the plaintiff's firm closed their transfer house for tho reasons stated in their letter of June 11, ISSG, to Mr. Anjs- den, namely, for refusal to pay their claim of ?2,.592.95, and their account for the month of May, ISSG, "and for no other reason," then the plaintiff could not recover, and the ver- dict must be for defendant So, by the eleventh instruction given on behalf of de- fendant, the jury were told that In deter- mining whether the damages arising from any breach of the contract by the defendant can be ascertained and compensated for, they were not to take into coniiideration any refusal of the defendant to submit any dif- ferences between it and Richards, Maynard & Co. to arbitration; that the refusal to sub- mit matters in dispute to arbitration was not such a breach of the terms of the contract as to warrant a recovery for such breach. It seems clear, therefore, under the facts proved, that the question submitted to the jury was whether the acts and conduct of the defendant showed a fixed determination to be no longer bound by the substantial pro- visions of the contract upon its part. As. al- ready seen, the consideration moving to Rich- ards, Maynard & Co. for entering into the contract was the stipulation, on defendant's behalf, to deliver, to be weighed and trans- ferred through their house, all grain re- ceived by it from western roads, to be trans- ported east over its lines, that it could con- trol; that pi-actieally the only benefit to be derived by Richards, Maynard & Co. from the contract was by the sale of weights of grain thus transferred. The evidence tend- ed to show that the railroad company had repudiated its liability to perform this part of its contract, and its duty, under the con- tract to use tlie weights derived from the plaintiff's firm only in billing the grain to destination, but gave the same away, so as to deprive plaintiff's fii-m of the profits it would derive by the sale of such weights. From what has preceded, no extended dis- cussion will be necessary of tlie point made, that there was a variance between the spe- cial count of the declaration and proof. It w;is alleged "that on the IGth day of June, 1SS6, the defendant abandoned the contract on its part, neglected and refused to per- form the same, and refused, witbout any reasonable or just cause, to be bound by the same," etc. As already shown, the effect of the position taken by, and the conduct of. 590 DISCHAIIGE or CONTRACT. appellant, was a denial of its obligation to perform the substantial parts of tlie con- tract on its part In connection with this point, it will be proper to notice the contention that in the i suit brought June 5, ISSG, before referred to, the plaintiff recovered damages for all the breaches of the contract up to the bring- ing of that suit, and that, therefore, such breaches, being merged in the judgment in that cause, could not subsequently be made the occasion, by Richards, jNlaynard «&: Co., for treating the contract as abandoned by appellant In bringing that suit, the plain- tiff undoubtedly treated the contract as sub- sisting, and had not then elected to treat it as abandoned by the defendant, and to sue for prospective damages. The suit was brought and recovery had for actual breach- es to the time of bringing it We are not required to determine the question thus pre- sented. If It should be conceded that the plaintiff's claim in bringing that action is inconsistent with his right to show such breaches in this proceeding, it could not af- fect the result Subsequent to the bringing of that action, as already shown, the rail- road company refused to recede from its previous position, both in respect of its obli- gation under the contract to deliver cars to Richards, Maynard & Co., and to observe its contract in respect of the use to be made of the weights. And the evidence tends to show that at the time Richards, Maynard & Co. closed their transfer house, appellant was denying its liability under the contract and evinced a clear intention not to be bound by its provisions. It is urged, however, that there was here only a partial breach, arising from a differ- ence In the construction of the contract and that there was at no time a repudiation or renunciation of the contra<;t by appellant; that they were at all times desirous of keei)- Ing it in force, and performing it These are, as a matter of course, questions of fact which are conclusively settled by the judg- ment of the appellate court But in view of the instructions aslied and refused, which sought to take the case from the jury, it may be remarked that the evidence tended to show a repudiation by the railway com- pany of the substantial provisions of the contract which formed the consideration for the execution of it by plaintiff's firm. It was not enough, to show that there was no repudiation of the contract obligation of the plaintiff, to prove tliat appellant was furnishing some cars to be transfeiTed through plaintiff's transfer house, whereby plaintiff was partially receiving the benefits he claimed under the contract The cor- respondence between the parties before and after the 5th of June, ISSfJ, shows that appel- lant was not delivering cars of grain to be transferred through the transfer house be- cause it recognized any obligation on its part to do so, but claimed, and acted on such claim, that it was only bound to deliver such cars as it saw proper. In other words, it refused to be boimd Dy the provision of the contract requiring it to deliver cars to plain- tiff's firm. Under the construction of the contract upon which it had acted, and was proposing to continue to act it was under no obligation to deliver any cars to be trans- ferred by plaintiff's firm, thus absolutely repudiating its contract liability to do so. True, it had not altogether ceased to dehver some cars to be thus transfeiTed, but they were not delivered because of any contract liability to do it but at their convenience and option. Its persistence in this couree of conduct had been shown by its repeated refusal to submit the matters in dispute to arbiti-ation imder the contract The presi- dent of the company wrote, in reply to the demand of plaintiff's firm for arbitration, "I have to say tbat this company having jt all times faithfully performed its obligations under said contract, I do not consider there are any matters calling for arbitration," and declining the request for arbitration. While It is imdoubtedly true that refusal to arbi- trate would not under the provisions of this contract, justify the plaintiff in treating the contract as renounced by appellant company, yet such refusal, and the correspondence in respect of the matter, tend to show the persistency with which appellant refused to be bound by the contract It is also objected that the court erred In the admission of testimony: Fii-st that ap- pellee was permitted to prove the cost of the transfer house, etc It is a sufficient an- swer to say that it does not appear the evi- dence was objected to. It is, however, said that the coiu-t erred in refusing to give the fifth instruction for appellant, which was, in effect tliat no recovery could be had for the cost or value of the transfer house and its equipments in this action. This instruc- tion might with propriety have been given, but its refusal was not error. At the be- ginning of the healing before the jury, coun- sel for the plaintiff stated that he did not attempt to show the breaches for the purpose of recovering for them, but proved them for thepurpose of showing simplya breachof the contract, which entitled the plaintiff to aban- don the further performance of it and sue for damages for loss of future profits, when the following colloquy occurred: Mr, Jew- ett (for defendant): "In other words, there is nothing but the claim for future profits in this case." Mr. Pence (for plaintiff): "That is all there is in this case." Later, and at the close of plaintiff's testimony, the plaintiff sought to show what the transfer house was worth, "standing tliere, useless for the pur- pose for which it had been erected," to which an objection by the defendant was sustained. This all took place in the pres- ence of the jm*y. and would leave no ques- tion in the mind of any Intelligent per- son as to the damages sought and allowed to BREACH— RENUNCIATION. 591 be lecovered. It seems clear that the jury could not have understood that they were to take anything into consideration other than the profits to be derived from the trans- fer of grain under the contract, and they were in effect so told by the fourth instruc- tion given at tlie instance of plaintiff. On the trial of the cause, certain letters written, one by Mr. Blodgett and one by Mr. Clark, commendatory of plaintiff's method of transferring grain, etc., were offered and reati in evidence over the objection of defend- ant. That these letters were incompetent scfircely admits of question, and it is diflieult to DfL-e^ve upon what principle they were admitted. That the error was a harmless one Is equally apparent It was not contro- verted that the "Itichards Method," so call- ed, accomplLshefl the purpose, nor was there any pretense that it was a failure, so that the plaintiffs did not p'-rform tlieir contiacL Other points are made In argument, which, in view of the length of this opinion, seeming- ly made neces.sary by the very Ingenious ar- gumout of the learned counsel, it must suffice to say, have been carefully con.sidered, and are not deemed of such gravity as to warrant further discussion. Finding no prejudicial er- ror In tliis record, the judgment of the appel- late court will be allirmed. AfiirmeU. 6 592 DISCHARGE OF CONTRACT. NEWCOMB V. BRACKETT. ^ (16 Mass. 161.) 'V' Supreme Judicial Court of Massachusetts, Norfolk. 1819. The declaration was in case, "for that the said B. at, &c. on the 8th of August, 1808, by his memorandum in writing of that date; by him subscribed, acknowledged that he had then and there received of the plaintiff a bill of sale of one half of the sloop Union and her apparel, the consideration whereof the said B. then and there acknowledged in writing under his hand to be 200 dollars; which sum the said B. then and there, in said memorandum by him subscribed, prom- ised the plaintiff to account to him for^jn a transfer of a deed which the said B. then held against one Jackson Field's -estate, ,aa. soon as the^Iainfiff^hould pay said B. the residue of a~^debt to him,~~wHchZsEouIdr noT" exceed 100 dollars^ 5nd the plaintiff ^rerS that the transfer of a deed against said J. Field's estate, mentioned in said memoran- dum, was to be a transfer, assignment and conveyance of the land, described in a cer- tain deed made to said B. by one J. Field, which land the said B. then and there prom- ised to convey to the plaintiff. And the plaintiff further avers that the said B. on the 19th of April, 1810, by his deed of re- lease and quitclaim, by him duly executed, did release and qtiitclaim to one J. N. Arnold all the right, title and interest, which he the said B. then had to a certain real estate de- scribed in said deed, which said real estate was the same of which the said BTtljen held a deed from said J. Field, and of wljifliTbe said B. was then in possession, and which he had in and by said memorandum engaged to transfer to the plaintiff; and upon which transfer he had engaged to account for said 200 dollars. And the plaintiff further avers, that the said B. had not before said 19th of April accounted to the plaintiff for said 200 dollars, in a transfer of a deed held by him, the said B., against said J. Field's estate. And the plaintiff further says, that the said B., by his deed aforesaid made to said J. N. Arnold, has broken his promise aforesaid, and become unable to perform the same, ac- cording to the terms thereof. To the dam- age, &c." The defendant demurred to this declara- tion, and assigned the following causes of demurrer. 1. That the plaintiff hath not alleged or shown, that he has ever paid or tendered to the defendant the residue of said debt, mentioned in the declaration. 2. That he has not alleged or shown, that he has paid or offered to pay to the defend- ant the sum of 100 dollars, mentioned in the declaration. 3. That he has not alleged or shown, that he ever requested the defendant to transfer to him the deed which the defendant held against J. Field's estate, or to assign and transfer to him the land mentioned in the declaration. The demurrer was joined by the plaintiff. Mr. Loud, for the defendant. The under- taking of the defendant, as it is stated in the declaration, should receive the same con- struction, as it would have, if the sale of the sloop by the plaintiff had been executory, and had been written thus: "In considera- tion that J. Newcomb has agreed to execute a bill of sale of one half of the sloop, &c., the value of which is 200 dollars, I promise to account for the same in the transfer of a deed, «S:c. as soon as," «&c. It was a part of the same transaction, executed at the same time, and given in consideration of the de- fendant's promise to convey the land. The plaintiff was to convey the sloop, and to pay 100 dollars; and when he had done both, the defendant was to give a deed of the land spoken of. If the plaintiff can recover in the present action, he must do so, either upon the ground of the contract's^ being rescinded, or Because ne has p erform ed all the precedent condrtion s orfhis ^artTTo^ entitle himself to damages;, and" we contend that he cannot recover on either ground. Not on that of the contract's being rescinded; because he declares only upon the special agreement, and admits it to be open. He claims, not the value of the sloop, as so much money paid, but general damages; the rule of which would probably be the value of the land, at the time it was conveyed to Arnold, or at the time of bringing his action. Assumpsit for money had and received is the usual ac- tion to recover monej' paid by the plaintiff, in pursuance of a contract which has failed; as where either of the parties had a right to consider the contract rescinded by the terms of it, or where the plaintiff is pre- vented by the defendant from performing some antecedent condition. No case is rec- ollected, in which an action upon the special agreement has been brought, to recover back money so paid, or the value of any goods sold and delivered, unless upon the notion of fraud practised by the purchaser. Another reason, why the contract cannot be considered as rescinded, is that the par- ties cannot be put in statu quo. It was a barter transaction. The sloop sold to the defendant was not money paid. The plain- tiff' then has performed a part of the con- tract. If the contract is to be considered as still open, the action can be no better supported. The payment of the 100 dollars is a condi- tion precedent on the part of the plaintiff, and that too upon which the defendant as- sumed to convey the land. If the defendant had not subsequently conveyed the same land to Arnold, there could be no pretence for an action by the plaintiff, before payment or ten- derof thelOO dollars. It is difficult to perceive why that conveyance should alter the case. BREACH— IMPOSSIBILITY CAUSED BY PARTY. 593 The misfeasance of the defendant cannot ex- cuse the plaintiff from performing the whole of a condition precedent, of which he has performed a part; and it certainly ouglit not to have that effect here, where the plaintiff has lain by until the dofend^int has lost any other remedy for the recovery of the money, by lapse of time. This is not like that class of cases, which contain mutual covenants, and in which it is held that the plaintiff, after having perform- ed the gist of the consideration on his part, may maintain an action against the defend- ant for non-performance on his part; upon the ground that the latter has his remedy against the plaintiff, for neglect of any col- lateral stipulations. This is the conditional promise of the defendant alone. If the plaintiff, on the contrary, has sus- tained any loss, it has always been and stiU is in his power, by paying the 100 dollars, to compel the defendant to execute a good conveyance of the land, or to answer in damages for its value. Mr. Metcalf, for plaintiff. PARKER, 0. J. The contract set forth in the declaration Is substantially, that in con- sideration of the value of a sloop sold by the plaintiff to the defendant, estimated at 200 dollars, the defendant would, upon payment of 100 dollars by the plaintiff, which was due to the defendant from one Field, and to secure which he had taken a deed of Field's estate, convey said estate to the plaintiff; and the breach of the contract al- leged is, that the defendant had disabled himself from performing the contract, by conveying the same estate to another per- son. The declaration Is demurred to, and the objection to It is, that the plaintiff had nei- ther paid, nor offered to pay, the debt of Field to the defendant; and therefore has no title to the action- No time Is fixed in the contract, within which the money was to be paid, or the es- tate conveyed to the plaintiff. The plaintiff then had a reasonable time, by virtue of the contract, to perform his part of it; and the defendant might have hastened him, by ten- dering the deed, and demanding the money which the plaintiff had assumed to pay. HOPK. SEL. CAS. CONT. — 38 It is Implied in the contract, on the part of the defendant, that he would do nothing by which he should become unable to perform It; and by making a deed to another per- ,son, he has di.sablcd himself, and so virtual- |ly broken his contract. It being impossible for him, after having thus done, to account /for the 'KM) dollars in the land, as he under- I took, there is a breach of his contract, for I which proper damages may be recovered., The law will not, in such circumstances, re- quire a payment or tender by the plaintiff; for this would be to hazard an additional loss, without any possible advantage. This opinion is supported by several de- cided cases, which are collected by Mr. Met- calf in a note to the case of Raynay v. Alex- ander, In his valualjle edition of Yelverton's Reports (page 7G). The case in the text is— The plaintiff declared upon a promise to de- liver, on a particular day, fifteen out of sev- enteen tods of wool, to be chosen by the plaintiff, upon payment of £G, and averred that he was ready to pay the £G on the day; yet the defendant had not delivered the wool. Verdict for plaintiff— and judgment arrested, because not averred tbat the plain- tiff had chosen the fifteen tods out of the seventeen; which was a condition precedent. But Popham, C. J., said, if the defendant had sold one of the tods of wool before the election made by the plaintiff, that had de- stroyed the election and made the promise absolute, and had been a breach of it. The same law, If the defendant would not have permitted the plaintiff to see the wool, that he might make election; for that had ex- cused the act to be done by the plaintiff, and had been a default by the defendant. The law is well summed up by Mr. Metcalf In his note: "When the consideratioiLQ^ the c ontract Is^,exe cutory, oTTts^efformanc^ili^ pends upon some act to l)e~doni~or forborne by fhe_glaintiff, or_onsome_other^ event. The plalntiffmust aver performj^c^Iof siich^re- cedent condition, or show some excuse for the non-performance." ~ — "- The declaration, in the case at bar, shows that the defendant had conveyed to a stran- ger the land, which he promised to convey to the plaintiff. This excuses the plaintiff from tendering the money, and entitles him to damages from the breach of the contract. Declaration adjudged good. 5'J4 DISCHARGE OF CONTRACT. MORTON T. LAMR (7 Term. R. 125.) Trinity Term. 37 Geo. IIL V/ In an action on the case the plaintiff declared against the defendant for that whereas on, the 10th Feb. 179G, at Manches- ter in the county of Lancaster, in consid- eration tliat the plaintiff, at the special in- stance and request of the defendant had then and there bought of the defendant 200 quarters of wheat at £5 Os. 6d. per quar- ter, suoli price to be therefore paid by the plaintiff to the defendant, he the defend- ant undertook and then and there promised the plaintiff to del iver the s aid corn to him (the plaintifiEl) a t Shardlow In theL_CQiinty_pf Derby in one mont h_from^that ,time, viz. of the sale; and then he alleged that although he (the plaintiff) always from the time of making such sale for the space of one month then next following and afterwards was ready and W illing to receive . the— gald corn at^ Shardlow, yet the defendant not regarding his~~said promise &c. did not in one month from the time of the making of such sale as aforesaid or at any other time deliver the said com to the plaintiff at Shardlow or elsewhere, although he (the defendant) was often requested so to do, &c. The defendant pleaded the general is- sue; and at the trial the plaintiff recov- ered a verdict. Mr. Holroyd obtained, in the last term, a rule calling on the plaintiff to shew cause why the judgment should not be arrested, because it was not averred that the plain- tiff had tendered to the defendant the price of the com, or was ready to have paid for it on delivery. He said this was necessary on the principle established In many cases, particularly in Thorpe v. Thorpe, Salk. 171; Callonel v. Briggs, Id. 113; Kingston v. Preston, Doug. GS8; Jones v. Barclay, Doug. 684, and Goodisson v. Nunn, 4 Term R. 761,— that when something Is to be done by both parties to a contract at the same time, as in thi.s case the tendering of the money and the dehvery of the com, there the party suing the other for non-performance of his part must aver an offer at least at the same time to per- form what was to be done b y himself. Messrs. Law, Wood, and Scarlett, now shewed cause. The covenants here are mutual and independent, and each party has a remedy by action against the other for non-performance of his part. But if thprpijTg_ pny .pteeedp.nn£_J:ietween thf'Tn, ^^^ifi* delivery of the goodsaught, in the regular order7^5r~linngs, to precede the^jBJXi^Dt of th e price. In neither case can the aver- ment^contencTed for be necessary, '^t^g.^disr tinction is taken_Jn_inany-Gases-fehat— v^itei* two ii ' to be ^onej_and^ the time of (Ti.': ..Lntionc d for one and n otlfor the other, there the thing for doing which the time is stipulated must be done first, and so averred to be. Pafford v. Webbe, 2 Rolle, S8; Pordage v. Cole, 1 Saund. 319; Peters v. Opie, 2 Saund. 352; 1 Vent. 177, 214; El wick v. Cud worth, 1 Lutw. 493; Plilton V. Smith, Id. 49G. So in Thorpe v. Thorpe, 1 Salk. 171; 1 Lutw. 250; it was said by Holt, C. J., that if by the agree- ment a day certain is appointed for the pay- ment of money, and this day is to happen before the act can be performed for which the money is to be paid, there although the words are that he shall pay so much for the performance of the act, yet after the day appointed the party shall have his ac- tion for the money before the thing is per- formed. And that is a stronger case than the present, because the act for which the recompense is to be given ought in reason to precede the recompense itself. In Black- well V. Nash, 1 Strange, 535, the plaintiff declared in debt for a penalty on a cove- nant that he should transfer so much stock to the defendant on or before the 21st Sep- tember, and that the defendant in consid- eration of the premises covenanted to ac- cept and pay for it; and then the plaintiff averred that he was ready and offered to transfer the stock on that day, but that the defendant refused to accept or pay for it: It was objected in arrest of judgment that the actual ti*ansfer of the stock was a con- dition precedent which ought to have been averred: But the court held that "in con- sideration of the premises" meant in con- sideration of the covenant to transfer, and not of an actual transferring, for which the defendant had his remedy; though if it did mean the latter, a tender and refusal would amount to performance. And the y added that in all such ca ses the gre at ques- ^^n_waSj_who_was_to do the first act? But that where the traa sfer was to "Be upon pay- rn5Trt7^there "was no colour to make the transfer a con3Ttion precedent. The same doctrine" wa^ "held" in Dawson v. Myer, 1 Strange, 712. These cases went on the ground that the parties had mutual reme- dies on their reciprocal promises, and there- fore there was no need of the avennent contended for. But the case of Merrit v. Rane, 1 Strange, 458, applies as strongly in another point of view. There the plain- tiff declared on an agreement that in con- sideration of £252 paid to the defendant he agreed to transfer £G000 South-sea stock to the plaintiff or his executors, &c. at any time before the 0th January 1720, within thi'ee days after demand in writing, upon payment of the further sum of £0(KK) then he averred the demand in writing, and that he attended on the day, but that the de- fendant did not appear to transfer: One of the objections was, that the plaintiff had not averred that he had money there on the day to have paid upon the transfer: But the court said that as to the plaintiff's not shewing a tender that ought to have BREACn— CONCURRENT CONDITIONS. 595 cuiuu from the defendant by way of ex- cuse, that he was there leady to have tniusferred if the plaintiff had been there to have paid the money. To apply there- fore the reasoning of all these authorities to the present case:— g,ere the tlrst act to ljfi.._done__v>'jis_by_ the defendant, namely-, the carrying^ the corn to Shardl.owi_by out doing which he Ijroke his aijreement, and a cause of action accryed to the plaln- tiff_according to that class of cas es, where- in agreements of this sort have been con- strued to sivc mutual remedies to the. parties. But admitting that he was not bound to deliv- er the com there until the plaintiff was pre- pared to pay for it; still that ought to come from the defendant by way of excuse, and the tender of payment was not necessary to be averred by the plaintiff as a condition pre- cedent to the right of action. The defendant might have shewn in excuse for the non- performance on his part, either that he caiTied the corn to the place, and was ready to have delivered it, but that the plaintiff was not there to receive It; or that the plaintiff refused to receive it; or that he was not ready to pay for it l.au- cashire v. Klllingworth, 12 Mod. 531, Salk. C23. Ughtred's Case, 7 Coke, 10. Where an action is brought for money due, the defendant may shew in his defence a ten- der and refusal, or that he was prepared at the day and place appointed to pay the money, but that the plaintiff was not there to receive it; yet it never was held neces- sary for the plaintiff to aver in his declara- tion that he was ready to receive it. And here, if the readiness to pay had been averred, it could have answered no puiTpose; because no issue could have been taken on it. Besides in no case is tender of payment necessary to be averred when the contract Is executory, as it is in this case; for there the parties necessarily rely upon the mu- tual remedies arising out of it; they give mutual credit to each other. All the cases cited on the other side are, if strictly con- sidered, cases of condition precedent. Sev- eral of them, as well as the subsequent cases of Campbell v. Jones, G Term li. 570, and Porter v. Shepherd, Id. GG5, laid down the rule that whether covenants be or be not independent on each other must depend on the good sense of the thing; Uiat is, w] }o in the fa_ ir sense and meaning of the parties wa s required to do the first act. Now_here_there is no doubt that the first act was to be^^done by the defendant whic-h iie'^eg^lected to do: and it would be absurd to require a person to pay for goods before he had received them; though if he were not ready to pay for them at the time when the other was ready to deliver them, that might be a reason for the non-dolivery. But still that is only matter of defence and excuse on the part of the defendant, which it is incumbent on him to shew. And yet the effect of the avenuent required is, that the plaintiff was bound to tender the price before the goods were even offered to him. Mr. Holroyd, contrS,. Thl8__ action la not brought against the defendant for having omitted to carrj'" the corn to Shardlow, even allowing that to be the first act to" be do£e; and therefore much of the piainiiffi's argu- ment does not apply. But the ground of complaint Is that it was not delivered to hijn tjiere;_ and conseqliently upon this form of declaring it may be assumed that the de- fendant did carry the com there. Tlie question then comes to this, whether the defendant was bound to deliver his corn, the plaintiff not being there ready to pay for it For If not then it follows, accord- ing to all the late determinations, that he ought to have averred a tender of the price, or that he was there ready to pay for it If the defendant had been there ready to receive it, and deliver the com. And for this purpose it is not necessary to shew that the tender of the price was a condi- tion precedent strictly so considered; for according to Goodikson v. Nunn, 4 Term R. 7G1, and Kingston v. Preston, Doug. GSS, Lf the acts are concurrent and in the nature of the transaction to be done at the same time, before one of the parties can maintain an action against the other for the non-per- formance of his part, he must aver that he performed or was ready to perform every thing on his own part. Callonel v. Brig'gs, 1 Salk. 113, is hi point. TkU was an executory agreement, like the pres- ent, to pay so much money six months after the bargain, the plaintiff transferring stock. There Lord Holt said, "If either party would sue upon this agreement, the plain- tiff for not paying, or the defendant for not transferring, the one must aver and prove a transfer or a tender, and the other a payment or a tender; and this." says he, "though there be mutual promises. If I sell you my horse for fio. if you will have the horse, I must have the money; or if I will have the money, you must have the horse." Or according to Lancashire v. Kll- lingworth. Salk. 023. the plaintiff should have averred that he was ready at the place to have received the com on the last day of the time within which it was to be delivered, and ready and willing to have paid the price; but that no person was there on the part of the defendant to deliver the com. The delivery of the corn, and the payment of the price, were concurrent acts to be done by the parties at the same time, the one depending on the other; and if so, then within the principle of all the modem cases, the plaintiff ought to Jie^e averred In his declaration a tender of the price, for want of which it is^bad. Lord KENTON. Ch. J. If tliis question de- pended on the technical niceties of pleading, 596 DISCHARGE OF CONTRACT. I should not feel so much confidence as I do: but it depends altogether on the true con- struction of this agreement The defendant agreed with the plaintiff for a certain quanti- ty of corn, to be delivered at Shardlow with- in a certain time; and there can be no doubt but that the parties intended that the pay- ment should be made at the time of the de- livery. It is not imputed to the defendant that he did not carry the com to Shardlow, but that he did not deliver It to the plaintiff: to this declaration the defendant objects, and says "I did notjieliver the ^orn_to^ you (the plaintiff), because you dojiot say that you were ready to' pay for it; and if you were not ready, I am not bound to deliver^ the corn;" and the question is whetlier .that should or should not have been alleged.- The case decided by Lord Holt, in Salii. 112, if indeed so plain a case wanted that authority to support it, shows that where two con- current acts are to be done, the party who sues the other for non-performance- must aver that he had performed or was ready to perform, his part of the contract. Then the plaintiff in this case cannot impute to the defendant the nondelivery of the com, with- out alleging that he was ready to pay the price of it. A plaintiff, who comes into a court of justice, must show that he is in a condition to maintain his action. But It has been argued that the delivery of the com was a condition precedent, and some eases have been cited to prove it: but they do not appear to me to be applicable. In the one in Saunders (Saund. 350), the party was to pull down a wall, and was then to be paid for it; there is no doubt but that the pulling down of the wall was a condition precedent to the paj'ment; the act was to be done, and then the price was to be paid for it So in the case in SaHi. 171, where work was to be done, and then the workman was to fee paid. And in ordinary cases of this kind the work is to be (lone before the wages are earned: but those cases do not apply to the present, where both the acts are to be done at the same time. Spealdng of conditions precedent and subsequent in other cases only leads to confusion. In the case of Campbell v. Jones, I thought, and still continue of that opinion, that whether covenants be or be not independent of each other must depend on the good sense of the case, and on the order in which the several things are to be done: but here both things, the delivery of the corn by one, and the payment by the other, were to be done at the same time; and as the plaintiff has not averred that he was ready to pay for the corn, he cannot main- tain this action against the defendant for not delivering it GROSE, J. It Is difficult to reconcile all the cases in the books on the subject of con- ditions precedent; but the good sense to be extracted from them all is, that if one party covenant to do one thing in consideration of the other party's doing another, each must be ready to perform his part of the contract at the time he charges the other with non- performance. Here the question is, what was the intention of the parties; they clear- ly intended that something should be done by each at the same time. The corn was to be delivered at Shardlow to the plaintiff for a certain price to be therefore paid by him, that is, at the time of the delivery; then the readiness to pay should have been averred by the plaintiff. LAWRENCE, J, It has been argued, on behalf of the plaintiff, that this must be con- sidered as a declaration on mutual promises, and that as this is a demand on the defend- ant on the ground of some mutual promise made by him, and which was the considera- tion of the plaintiff's promise, it was not necessary to aver performance on his part: but if so, the declaration is not adapted to the truth of the case, in not stating that the defendant's promise was in consideration of the plaintiff's. But on this declaration I can only consider it as an agreement by the defendant to deliver the com at Shardlow on being paid for it The payment of the money was to be an act concurrent with the delivei-y; and then the case is like that of CaUonel v. Briggs, which was on an agree- ment to pay so much money sjx months after the bargain, the plaintiff transferring stock; and there Lord Holt said, "If either party would sue upon this agreement, the plaintiff for not paying, or the defendant for not transferring, the one must aver and prove a transfer or a tender:" he -did not say, that the not doing it should c5me from the de- fendant by way of excuse, but that the do- ing it must be alleged in the declaration; and that affords an answer to great part of the argument urged on behalf of the defendant in this case. The tendering of the money by the plaintiff makes part of the plaintiff's title to recover, and he must set out the whole of his title. The strongest case cited for the defendant was that of Merrit v. Rane, 1 Strange, 458: but that does not appear to me of sufficient weight to overturn the au- thority of the case of CaUonel v. Briggs. I do not quite understand what the court there said, that it was not necessary to allege a tender, for that it should have come from the defendant by way of excuse; for as it was stated that the plaintiff's agent was ready to receive a transfer of the stock, but that the defendant did not attend, it would have been absurd to state a tender of the money to a person who was not present to receive it. There is however another case, not re- ferred to in the argument. Lea v. Exelby, Cro. Eliz. 888, which is an authority to show that the plaintiff in this case should have averred a tender. There the plaintiff declar- ed that in consideration that he had promised to pay the defendant (who was possessed of a lease for years, the inheritance of which- BREACH— CONCURRENT CONDITIONS. 597 was In the plaintiff) a certain sum on such a day, the defendant promised on payment to surrender to him the lease; and that he had tendered the money at the time, but thai the defendant bad not surrendered; and on motion in arrest of judgment, because It was not "alleged that the defendant refused as well as that the plaintiCt tendered, the court held that the declai-ation was bad for th.it reason. Therefore, on the authority of that case, and of that of Callonel v. Briggs, I am of opinion that the declaration cannot be supported, and that the judgment must be arrested. Rule absolute. DISCHARGE OF CONTRACT. DEY V. DOX et al / ' (9 Wend. 129.) Supreme Court of New York. May, 1832. This was an action of assumpsit, tried at the Seneca circuit in June, 1830, before the Hon. Daniel Moseley, one of the circuit ■judges. The pLaintiflf proved a contract signed by the defendants in these words: "We have this day bought of David Dey 1280 bushels of first quality merchantable wheat to be delivered on board of boats, at or near the store house of David Brooks, at any time we may require the delivery of the same after the first day of April next, and are to pay seventy-five cents per bushel, payable the first of September next, and have paid him one dollar on ac- count . of the same; Geneva, 2Gth March, 1828;" and claimed to recover the price stipu- lated in the contract • The defendants insist- ed that the plaintiff was not entitled to re- cover, unless he proved a delivery of the wheat or an offer or readiness to do so. The judge ruled that the promises of the parties were independent and refused to nonsuit the plaintiff. The defendants thep proved a ten- der of the price and a demand of the wheat, made about the middle of September, 1828, and the refusal of the plaintiff to accept the money and to deliver the wheat— this evi- dence was objected to by the plaintiff. The plaintiff then introduced the record of the judgment in favor of the defendants against the plaintiff, docketed the loth January, 1830, as of January term, 1830, by which it ap- peared that the defendants had sued the plaintiff for the non-delivery of the wheat and obtained a verdict against him for $1,- 670.92, being the full value of the wheat on the day it was demanded. In the record, however, there was a remittitur of $1,005.25, stated to be the value of the wheat at G5-100 per bushel, T\ith the Interest thereof, and judgment was taken for only $771.61, the bal- ance of the verdict and the costs of increase. The plaintiff also proved the issuing of an ex- ecution on such judgment, which was deliv- ered to the sheriff on the IGth January, 1830, directing the levy of 5771.61, and that the same was returned satisfied; all which evi- dence in relation to the judgment and execu- tion was objected to by the defendants. The suit in this case was commenced on the 11th January, 1830, previous to which time the plaintiff demanded of the defendants the price of the wheat as stipulated in the con- tract; the defendants told him they would re- mit such price from their verdict which the plaintiff said he would not accept, and that if they entered such remittitur, they would do so against his wishes and consent The con- tract price of the wheat with the Interest thereof, was shewn to be .$992.16, for which sum the jury found a verdict notwithstand- ing the presiding judge in his charge to the jury expressed his opinion, that the plaintiff was not entitled to recover. The defendants now moved to set aside the verdict J. A. Spencer, for plaintiff. J. C. Spencer, for defendants. NELSON, J. The plaintiff must fail u^on principles too well settled to requii'e examina- tion, and the omission to avail himself of those principles, when prosecuted by the present defendants on the contract relative to this same subject matter, has no doubt given rise to the present suit; for, had they been applied, he would have had no cause of complaint. K a greater amount in damages for a breach of his agreement has been re- covered against him than the well settled principles of law would warrant, it is his own fault, and cannot be heard or admitted as a suSicient reason to indulge him In a cross suit to right himself. But before inquiring to see if, upon principles of law and justice, the whole subject of litigation arising upon this agree- ment could not have been properly adjusted in the former suit I will examine this case for the present as if the former suit was out of the question, and which Is perhaps placing It upon the ground upon which it ought to have been litigated. It would then stand thus: the plaintiff, after being called upon to carry into execution the agreement on his part peremptorily refused; and while persist- ing in such refusal, instituted a suit for dam- ages, for the non-fulfilment of the agreement on the part of the defendants. There is cer- tainly no principle upon which such an action can be sustained, nor have we been referred to any authority in support of it It cannot be that the plaintiff seeks to recover damages in the strictest sense of that term for the breach of the contract on the part of the defendants, for his own conduct is conclusive to shew that he considers the fulfilment of it an injury to him, and has therefore preferred the hazard of responding in damages himself, rather than carry it into execution. Can he recover the whole consideration for the wheat? This would be unjust, for he has positively refused to deliver the wheat when demanded, imless, indeed, under the idea that they are inde- pendent agreements, the court is bound to af- ford to each party a specific performance, or its equivalent in damages. Suppose the court should do so, how would the case then stand? The plaintiff would recover the consideration to be paid for the wheat and the defendants the same sum for the non-delivery of it be- sides such damages as a jury would aUow for the default in not delivering it It is obvious from this view, that confining the remedy for a violation of this contract to a suit for dam- ages against the party violating it the result is exactly the same to both parties as that to which we arrive after the above circuity of action, and I apprehend that such is the well settled law of tlie case. It is true, where the covenants or agreements are mutual and in- dependent that is. mutual and distinct one BREACH— CONDITIOXS PRECEDENT. 599 party may maintain an action against the other without averring or shewing perform- ance on his part, and the defendant in such ease cannot plead the non-performance by the plaintiff in bar of the action. Wheat. Selw. 383; 1 Saund. 320, note. When this prhiciple is rij;litly understood and applied, there can be no objection to It; and tlie sound reason given for It is, that the damages in each covenant or agreement may be very dif- ferent, as where they are in the same instni- ment and the one not the consideration of the other, or where th-: covenants or agi'eemcnts gc only to part of the consideration on both sides, part having been executed, and the like cases; in all such the damages might be dif- ferent and a remedy must be sought in a suit by each party for a breach. So the terms of the insti-ument may be such that the cove- nants; or agreements must necessarily be in- dependent, without the existence of the rea- Boi- above assigned; in such case, the court will can-j into effect the agreement, accord- hig to the intent cf the parties; but whether the covenants or promises are independent or no',, where the agreement is wholly execu- tcry.aiH the ono covenant or promise or per- foTcarce i- ped by one steamer in time, and 3,301 quar- ters were shipped too late, it was held that the buyer was bound to accept the 1,139 quarters, and was liable to an action by the seller for refusing to accept them. Such be- ing the condition of tlie law of England as declared in the lower courts, the case of Bowes v. Shand, after conflicting decisions in the queen's bench division and the court of appeal, was finally determined by the house of lords. 1 Q. B. Div. 470; 2 Q. B. Div. 112; 2 App. Cas. 455. In that case, two contracts were made in London, each for the sale of 300 tons of "Madras rice, to be shipped at Madras or coast for this port during the months of March ^'^^^t' April, 1874, per Rajah of Cochin." The GOO tons filled 8,200 bags, of which 7,120 bags were put on board, and bills of lading signed in February; and for the rest, con- sisting of 1,030 bags put on board in Feb- ruary, and 50 in March, the bill of lading was signetl in March. At the trial of an ac- tion by the seller against the buyer for re- fusing to accept the cargo, evidence was given that rice shipped in February would be the spring crop, and quite as good as rice shipped in March or April. Yet the house of lords held that the action could not be maintained, because the meaning of the contract, as apparent upon its face, was that all the rice must be put on board in March and April, or in one of those months. In the opinions there delivered the general principles underlying this class of cases are most cleiirly and satisfactorily stated. It will be sufficient to quote a few passages from two of those opinions. Lord Chancellor Cairns said: "It does not appear to me to be a question for your lord- ships, or for any court, to consider whether that is a contract which bears upon the face ■ if it some reason, some explanation, why it I was made in that form, and why the stipulation is made that the shipment should be during these particular months. It is a mercantile contract, and mer- chants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and impor- j tance." 2 App Cas. 403. "If it be admitted that the literal meaning would imply that the whole quantity niust be put on board during a specified time, it is no answer to that literal meaning,— it is no observation which can dispose of, or get rid of, or dis- place, that literal meaning,— to say that it puts an additional burden on the seller with- out a coiTesponding benefit to the purchaser; that is a matter of which the seller and pur- , chaser are the best judges. Nor is it any ] reason for saying that it would be a means i by which purchasers, without any real cause, ; would frequently obtain an excuse for re- jecting contracts when prices had dropped. j The non-fulfillment of any term in any con- tract is a means by which a purchaser is able to get rid of the contract when prices have dropped; but that is no reason .why a j term which is found in a contract should not be fulfilled." Pages 4G5, 400. "It was sug- gested that even if the construction of the contract be as I have stated, still if the rice was not put on boaid in the particular ' months, that would not be a reason which would justify the appellants in having re- jected the rice altogether, but that it might afford a grouna for a cross-action by them if they could show that any particular dam- age resulted to them from the rice not hav- ing been put on boai-d in the months in ques- tion. My lords, 1 cannot think that tht re is any foundation whatever for that argument. If the construction of the contract be as I have said, that it bears that the rice is to be put on board in the months in quesnon. that is part of tlie description of the subject- matter of what is sold. What is suld is not 300 tons of rice in gross or in general. It is 300 tons of Madras rice to be put on board at Madras during the particular months." "The plaintiff, who sues upon that contract, has not launched his ca^e until he has shown that he has tendered that thing which has been contracted for, and if he is unable to show that, he cannot claim any damages for the non-fulfillment of the contract." Pages 407. 40S. Lord Blackburn said: "If the description of the article tendered is different in any re- spect, it is not the article bargained for, and the other party is not bound to tiilce it. I think in this case what the parties bar- gained for was rice, shipped at Madras or the coast of Madras. Equally good rice might have been shipped a little to the north or a little to the south of the coast of Madras. I do not quite know what the boundary is, and probably equally good rice might have been shipped in February as was shipped in March, or equally good rice might 608 DISCHARGE OF CONTRACT. have been shipped in May as was shipped in April, and I dare say equally good rice might have been put on board another ship as that which was put on board the Kajah of Cochin. But the parties have chosen, for reasons best known to themselves, to say: We bargain to take rice, shipped in this par- ticular region, at that particular time, on board that paiticular ship; and before the defendants can be compelled to take any- thing in fulfillment of that contract it must be shown not merely that it is equally good, but that it is the same article as they have bargained for, otherwise they are not bound to take it." 2 App. Cas. 4S0, 481. Soon after that decision of the house of lords, two cases were determined in the court of appeal. In Renter v. Sala, 4 C. P. Div. 239, under a contract for the sale of "about 25 tons (more or less) black pepper, October ^^'^ November shipment, from Penang to London, the name of the vessel or vessels, marks, and full particulars to be declared to the buyer in writing within 60 days from date of bill of lading," the seller, within the 60 days, declared 25 tons by a particular vessel, of which only 20 tons were shipped in No- vember, and five tons in December; and it was held that the buyer had the right to re- fuse to receive any part of the pepper. In Honck V. Muller, 7 Q. B. Div. 92, under a contract for the sale of 2,000 tons of pig-iron to be delivered to the buyer free on board at the maker's wharf "in November, or equally over November, December, and January next," the buyer failed to take any iron in November, but demanded delivery of one- third in December and one-third in January; and it was held that the seller was justified in refusing to deliver, and in giving notice to the buyer that he considered the contract as canceled by the buyer's not taking any iron in November. The plaintiff in the case at bar greatly relied on the very recent decision of the house of lords in Mersey Co. v. Naylor, 9 App. Cas. 434, afiirming the judgment of the court of appeal in 9 Q. B. Div. 648, and following the decision of the court of common pleas in Freeth v. Burr, L. R. 9 C. P. 208. But the point there decided was that the failure of the buyer to pay for the first installment of the goods upon delivery does not, unless the circumstances evince an intention on his part to be no longer bound by the contract, entitle the seller to rescind the contract, and to de- cline to make further deliveries under it. And the gro\mds of the decision, as stated by Lord Chancellor Selborne in moving judgment in the house of lords, are applicable only to the case of a failure of the buyer to pay for, and not to that of a failure of the seller to de- liver, the first installment. The lord chan- cellor said: "The contract is for the purchase of 5,000 tons of steel blooms of the company's manufacture; therefore, it is one contract for the purchase of that quantity of steel blooms. No doubt, there are subsidiary terms in the contract, as to the time of delivery, — 'delivery 1,000 tons monthly, commencing January next,'— and as to the time of payment,— 'pay- ment net cash within three days after receipt of shipping documents,'— but that does nut split up the contract into as many contracts as there shall be deliveries for the purpose of so many distinct quantities of iron. It is quite consistent with the natural meaning of the contract that it is to be one contract for the purchase of th.-it quantity of iron to be delivered at those times and in that manner, and for which payment is so to be made. It is perfectly clear that no particular payment can be a condition precedent of the entire contract, because the delivery under the con- tract was most certainly to precede payment; and that being so, I do not see how, without express words, it can possibly be made a con- dition precedent to the subsequent fulfillment of the unfulfilled part of the contract by the delivery of the undelivered steel." 9 App. Cas. 439. Moreover, although in the court of appeal dicta were uttered tending to approve the de- cision in Simpson y. Crippin, and to disparage the decisions in Hoare v. Rennie and Honck V. Muller, above cited, yet in the house of lords Simpson v. Crippin was not even refer- red to, and Lord Blackburn, who had given the leading opinion in that case, as well as Lord Bramwell, who had delivered the lead- ing opinion in Honck v. Muller, distinguished Hoare v. Rennie and Honck v. Muller from the case in judgment. 9 App. Cas. 444, 446. Upon a review of the English decisions, the rule laid down in the earlier cases of Hoare V. Rennie and Coddington v. Paleologo, as well as in the Jater cases of Reuter v. Sala and Honck v. Muller, appears to us to be sup- ported by a greater weight of authority than the rule stated in the intermediate cases of Simpson v. Crippin and Brandt v. Lawrence, and to accord better with the general prin- ciples affirmed by the house of lords in Bowes V. Shand, while it in no wise contravenes the decision of that tribunal in Mersey Co. v. Naylor. In this country there is less judicial authority upon the question. The two cases most nearly in point that have come to oiu- notice are Hill v. Blake, 97 N. Y. 216, which accords with Bowes v. Shand, and King Phil- ip Mills V. Slater, 12 R. I. 82, which approves and follows Hoare v. Rennie. The recent cases in the supreme court of Pennsylvania, cited at the bar, support no other conclusion. In Shinn v. Bodine, 60 Pa. St. 182, the point decided was that a contract for the purchase of 800 tons of coal at a certain price per ton, "coal to be delivered on board vessels as sent for during the months of August and Septem- ber," was an entire contract, under which nothing was payable until delivery of the whole, and therefore the seller had no right to rescind the contract upon a refusal to pay for one cargo before that time. In Morgan V. McKee, 77 Pa. St. 228, and in Scott v. Kit- tanning Coal Co., 89 Pa. St. 231, the buyers BP^EA'.n— CONDITIONS PRECEDENT. 609 rijrht to rescind the whole contract upon the failure of the seller to deliver one installment was denied, only because that rif,'lit had Iji'cn waived, in the one case by unreasonable delay in asserting it, and in the other by liaving ac- cepted, paid for, and used a previous instaJl- ment of the goods. The decision of the su- preme judicial court of Massachusetts in Win- chester V. Newton, 2 Allen, 492, resembles that of the house of lords in Mersey Co. v. Naylor. Being of opinion that the plaintiff's failure to make such shipn ents in February and March as the contract required prevents his maintaining this action. It is needless to dwell HOPK.SEL.CA8.CONT.— 89 upon the further objection that the shipments in April did not comply with the contract, be- cau.se the defendants could not be compelled to take about 1,(mjO tons out of the larger quantity shipped in that month, and the plain- tiff, after once designating the names of ves- sels, as the contract bound him to do, could not substitute other vessels. See Busk v. Spence, 4 Camp. 329; Graves v. Legg, 9 Exch. 7U9; Renter v. Sala, above cited. Judgment affirmed. The CHIEF JUSTICE was not present at the argument, and took no part in the decision of this ca.se. 610 DISCHARGE OF CONTRACT. a^ ^^f WOOTEN V. WALTERS et aL J a-A S. E. 12A, 110 N. C. 251.) Snpreme Court of North Carolina. March 15, 1892. Appeal from superior court, Lenoir county; E. T. Boylcin. Judge. Action by Simeon Wooten against John D. Waltere and others to avoid a contract for the SJ^le of real and personal property, and to re- cover such property. Exceptions were taten to the report of a referee, and from 'a judg- ment modifying the report, sustaining an ex- ception of defendants and oveiTuling plain- tiff's exceptions, plaintiff appeals. Affi rmed. The other facts fully appear in the follow- ing statement by MERRIMON, C. J.: The following is a copy of the case settled on appeal: "The facts found by the referee are as follows: (1) That in the year 1SS9 the plaintiff and defendants formed themselves into a company and were incorporated under the name of the 'Kinstou Oil-Mill Company,' for the purpose of manufacturing cotton^seed oil. (2) The plaintiff and each of the defend- ants agreed to^ke one:fourth_ea£h^ pXJthe capital stock, and the company was organ- ized, and the defendant J. D. "Walters was elected president of the company, and was the general superintendent of the business in erecting buildings, machinery, and making the necessary preparation for commencing the manufacture of the oil. (3) That no cer- tificates or other evidence of stock were ever issued by said company. (4) In November of said year 1SS9, and before the company was ready to commence operation, the plaintiff agreed with the defendant J. D. Walters to selL to him his stock of merchandise and tw o Stores, a nd lots. aU being i n La Grange, a nd was to take in payment therefor the interests of the s aid X. D. Walters and the^Sef endant 41ex. Sutton'inl;Ee~said oil-mill, the difference to be^^aidjas If sliould appear on estimation. (5) The contract above mentioned was as fol- lows: Walters was at the store of Wooten, and a proposition to trade was made, by which party is uncertain, and whether the stores were then named or not is uncertain. They agreed to meet again that night At night Walters went to Wooten's store, and after a while they agreed that the goods were worth twenty per cent less than their original cost They then immediately began to talk about the price of the stores, but did not agree as to their price. They then began to talk about the price of the oil-mill property. Walters said it was worth dollar for dollar for what had been put into the mill. Wooten thought he ought to make some reduction. Walters refused to do so. Then they began to talk again about the stores, bu ^ did not ■ascree .aS-to,the. price . At this point Walters said to Wooten, 'Do we understand each oth- er?' Wooten said he thought so. Walters said, 'You are to take the oil-mill property at what it cost us, and I am to take the goods at 20 per cent off first cost' Wooten made no reply, but walko;! off to attend to some matter, came back, and they walked out of the store, and went to the pump, and got some water. Walters_again spoke about the stores L Wooten asked $3,000; Walters offer- ed $2t500. Before they separated tht^ agreed on the price of the stores at $2,750, and Wooten then asked Walters when he wanted to take an inventory of the goods. (6) The contract was not reduced to writing, nor any note or memorandum thereof. (7) An inven- tory of goods was taken, and they amounted to $9,514.38. This amount, reduced six and one-fourth per cent., would be the first cost of the goods, which is $8,919.73, (first cost) This, reduced by 20 per cent, would leave $7,135.79, the price Walters was to pay Woot- en for the goods. (S) After th ejnventory was completed, Wooten delivered^he_ stores and ^oods~lnto'jEie_ possession of Waltejrs. (9) WooEeiT took possession of the oil-mill prop- erty, completed the erection of machinery, etc., and operated the mill about two weeks, and then stopped running the mill, and about a week after informed Walters he should not carry out and complete the contract, and of- fered to return to him the miU property, and demanded of Walters the return of the stores and goods. (10) Walters has always been willing and able to perform his part of the contract and several timr ^ crfrLgq gnm f|io contract i^^ not se v erable. The seller is bound to deliver the whole of the things sold, and the buyer to pay the whole price, in the ab- sence of fraud. Hence it has been held that, where a cow and 400 pounds of hay were sold for $17, the contract was entire. Mr. Ju.stice Story says that "the principle upon which this rule is founded seems to be that, as the contract is founded upon a con.sidera- tion dependent upon the entire performance thereof, If for any cause it be not wholly i>er- foimed, the casus foederis does not arise, and the law will not make provision for exigencies against which the parties have neglected to fortify themselves." 1 Storj', ConL (5th Ed.) § 2G. Such contracts are enforceable nnly qh I L whole . On the other hand, a severable contract is one in its nature and purpose sus- ceptible of division and apportionment, hav- ing two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each otJier, nor is it intended by the parties that they shall be. Hence an action may be maintained for a broach of it in one respect, and not neces- sarily in another, or for several breaches, while in other material resfKiCts it remains in- tact. In such a contract, the consideration is not single and entire as to all its several pro- visions as a whole until it is performed; it is capable of division and apportionment. Thus, though a number of things be bought together without fixing an entire price for the whole, but the price of each article is to b€ ascertained by a rate or measure as to thr several articles, or when the things are of different kinds, though a total price is named but a certain price is aflixed to each thing, the contract in such cases may be treated as a separate contract for each article, althoug they all be included in one iosfrument of couJ veyance, or by one contract Thus where a party purchased two parcels of real estate, the one for a specified price and the other for a fixed price, and took one conveyance of botli, and he was afterwards ejected from one of them by reason of defect of title, it was held that he was entitled to recover there- for from the vendor. Johnson v. Johnson, 3 Bos. & P. 1G2; Miner v. Bradley, 22 Pick. 45G. So, also, it was held, where a certain farm and dead stock and growing wheat were all sold together, but a separate price was affix- ed to each of these things, tluit the contract was entire as to each item, and was severable into three contracts, and hence a failure to comply with the contract as to one item, did not invalidate the sale, and give the vendor a right to reject the whole contract. In such case, the contract may be entire or several, according to the circumstances of each partic- ular case, and the criterion is to be found in the question whether the whole quantity — all of the things as a v^hole — is of the essence of the contract If it appear that the purpose was to tike the whole or none, then the con- tract would be eaitire; otherwise it wonld be severable. It is sometimes difficult to deter- mine whether the contract is entire or sever- able in such cases, and there is great di- versity of decision on the subject, "but, on the whole, the weight of opinion and the more n^sonable rule would seem to be that 612 DISCHARGE OF CONTRACT. where there is a pu rc basR of different a rtl- . cleg, at different j>rl£es, _at the same tim e^the "contract would be seve rable as to eacli arti- ie taEinj unle ss the talking of the whoie was ren- ^ed^ essential eittrer-by the nature of the subject-matter or by the acT of the parties." This rule maues the interpretatton of the con- tract depend on the intention of the parties as manifested by their acts and the circum- stances of each particular case. Brewer v. Tysor, 3 Jones, (N. C.) ISO; Niblett v. Her- ring, 4 Jones, (N. C.) 262; Brewer v. Tysor, 5 Jones, (N. C.) 173; Dula v. Cowles, 7 Jones, (N. C.) 290; Jarrett v. Self, 90 N. a 478; Chamblee v. Baker. 95 N. C. 9S; La wing v. Rintels, 97 N. C. 350, 2 S. B. 252; Pioneer Manuf'g Co. v. Phoenix Assur. Co., 14 S. E. 731 (decided at the present term); Story, Cont. (5th Ed.) §§ 21-25; 3 Pars. Cont 187; Whart Cont. §§ 338, 511, 748. Applying the rules of law thus stated to the case before us, \££_a,re-_of -opinion that__the contract to be interpreted,_treated as^ execu- tory, .is severable, and the sale of the goods therein mentioned was not necessarily an in- separable part of the sale of the land em- braced by this contract. Although it is sm- gle, it embraces the sale of two distinct things, each having a certain price affixed to it, and the price paid for the whole being susceptible of apportionment Neither by the terms of the contract settled by the findings of fact nor by its nature and purpose, does it appear that the store-house lot of land and stock of goods, distinct things, were both necessary parts of an entire contract These things were not necessary parts of each oth- er; they were entirely capable of being sold sepan;tely. Nor does it appear that they were sold as a single whole. On the con- trary, they were spokMi of and treated as dLf-_ ferent subjects of sale, a specified price was affixed to the land, and a distinct, defiuite price affixed to the goods. Wherefore this distinction? "Why was the price fixed as the separate and distinct subject of sale? As we have seen, the two things were not necessary to each other, and nothing was said or done by the parties, nor does anything appear to show that the parties would not have made the contract unless it embraced both the sale of the land and the stock of goods. The sale of the stock of goods was not part or parcel of the sale of the land, nor dependent upon it although the sale of both was made at the same time, and embraced by the same con- ti-act severable in its nature and purpose. Thej' were treated as distinct subjects of sale, the price of each being definitely fixed. The mere fact that the plaintiff was about to change the character of his business did not imply that the store-houses and the land on which they were situate must be sold with the goods, else the goods would not be sold. Such things are valuable to let for rent There is the absence of anything that shows a purpose to sell the two things as an insep- arable whole. When, therefore, the plaintiff avoided the contract, not reduced to writing as to the land, as he might do under the statute pertinent he did not avoid the con- tract as to the stock of goods. The contract was severable, and, as to the goods, was valid and remained^of force and continued to have effect It seems that reaUy: _the con- tract wvcs executed as to the goods, and the sale might on that ground, be upheld with- out reference- ta_±he ineffectual sale of the land; hut no jjueslion in that aspect-- of the case was raised. Judgment affirmed- BREACH— CONDITIONS PRECEDENT. ^3^ -0^^^^, 613 BAST V. BYRNE. (8 N. W. 494, 51 Wis. 531.) Supreme Court of Wisconsin. March 24, 1881. Appeal from circuit court, Green coimty. January 19, 1870, the defendant, Byrne, agreed In writing to pay the plaintiff, Bast, $300 fo r one year's work in his store, and to let liTm Tiave" all the goods ho needed for himself airP6st,~wTth 10 per cent, added, dur- ing the tlme^and reserving to himself the privilege of dismissing Bast at the end of six months if ho should no longer need his services; and Best agreed therein and there- for to work strenuously in the store for Byrne's interest. The complaint alleged the substance of the agreement, and performance by the plaintiff, and admitted payment of $14S..o4 in goods. .1553.29 in cash, etc., and loss of time amounting to $9, and claimed a bal- ance of ?l-i9.29. The defendant offered and tendered judgment for $120, with costs of action, which the plaintiff refused to accept. The answer alleged payment, and that the plaintiff had forfeited his wages by leaving his employ many times without leave, and by altogether absenting himself from the de- fendant before he had completed the work- ing of his year. On the trial in the circuit court the defendant objected to any evidence under the complaint, on the ground that it appeared from the complaint that the plaintiff agreed to work a year, but had failed to work out his time; which objection was overruled by the court and the defendant excepted. The undisputed evidence shows that the plain- tiff began work under the contract January 26, 1878, and quit on the evening of Jan- uary 25, 1879; that the plaintiff had l ost at__ different times in^ the_aggi:e:gate_iune^aad— a. half days. _At the close of the plaintiff's tes- Hmony the defendant moved for a nonsuit, which was overruled, and the defendant ex- cepted. There was evidence tending to show that there was an attempt and failure to set- tle on the evening that he quit and some dis- pute about the amount he had received, and whether his time was out, or would not be out, until the following day. At the close of the testimony and the ai'gTiments of coun- sel, the court charged the jury. Thereupon the jury retired and returned a verdict for the plaintiff of $147.32, which the defendant moved to set aside and for a new trial, which motion was overruled by the court, and the coimsel for the defendant excepted. No ex- ception was taken to any portion of the charge, and no instructions were refused or requested. A. A. Douglass, B. Dunwiddie, and S. U. Pinney, for appellant. P, J. Clawson, for re- spondent. CASSODAY, J. There Is no dispute but what it was a year from the time the plain- tiff began the work until he quit. Had he lost no time he would have fully complied th his contract. It is urged, however, that never the plaintiff, from his own fault or necessity, lost any time, it Ix'came optional with the defendant to allow him to resume work or not, and that when he did "choose to allow him to resume work" then the plain- tiff became bound to make up the days so lost by working after what would have other- wise been the end of the year. In other words, it Is claimed that the clau.se, "agrees to pay * • • th e sum of _S3C0 forgone Xcax.! ! does no t refer tcji. delinile. period of time, but fl d^'fi^'te nnmher nf days of S£iy- ice> a nd that until the number of days of service we re in fact rendered, either during the year or subsequently, no recovery -c^uild b e bad upon the co ntract In support of this theory we are referred to Winn v. Southgate, 17 Vt 3.55, and Lamburn v. Cruden, 2 Man. & G. 253. In Winn v. Southgate the con- tract was that the plaintiff should labor six months for the defendant. He commenced work May 17th, and during the term, with the consent of the defendant was absent on a journey 16 days, but returned October 5th, and continued to work untU October 30th, when he quit, being 17 days before the end of the six months, and then insisted that his time was out, claiming that 24 working days was a month, and thereupon sued for the balance of his wages, and the court held that he could not recover. It is evident from this statement that the question here involved did not there arise. In Lamburn v. Cruden the plaintiff had been engaged by the defendant at a yearly salary, payable quarterly. The last year of service expired S^tember 29, 1837, and his salary up to that time had been duly paid. Before the expiration of the year a misunderstanding had arisen. October 20th the plaintiff tendered his resignation, which was accepted December 13th. In the mean- time he had performed no service, except upon one occasion, and tlien against the as- sent of the defendant. The action was for services between September 29th and De- cember 13th, but the plaintiff was nonsuited, and the rule for a new trial was made abso- lute, on the ground, that the court should have submitted to the jury the question as to whether there was a new agreement. The question there involved seems to have lx>en foreign to the question here presented. There the subsequent services were claimed under a new agreement; here subsequent services were demanded by virtue of the old agreement Of course it was competent for the parties In this case to have made a new agreement whereby the plaintiff should work a certain number of days in lieu of the nme and one-half days which he had lost but there Is no claim that any such new agree- ment was ever made, and the question is, can the court expand an agreement which by its terms was limited to "one year," so as to require a party under it to render services after the expiration of the year, in lieu of certain days of service which he failed to 614 DISCHARGE OF CONTRACT. perform during the year? No case has been cited going to tliat extent, and we have no disposition to furnish one. A party contract- ing to labor for a limited period cannot be required, after the expiration of the period, to render additional services under such con- tract, without any new agreement, merely be- cause he had lost certain days during the term. The court charged the jury on the theory that it was competent for the defend- ant, during the contract, to waive a strict performauco of any particular day's work, and that when the plaintiff from time to time lost a day, and the defendant, with knowl- edge of the fact, received him back into his employ, it was such waiver; at least to the extent of preventing the defendant from en- forcing a forfeiture of payment for the serv- ices actually performed. It is true the charge in this respect is not very full or explicit, but if the defendant desired to have it more definite he should have so requested. We are convinced that the theory upon which the cause was submitted to the jury was correct. Such acts of the defendant, without objec- tion, we regard as a prima facie waiver of the breach. They presume condonation. The loss of a half day, a day, or two days, at in- tervals, and long prior to the termination of the contract, without objection on the part of the defendant, should not, upon principle, operate so harshly as to work a forfeiture of payment for services subsequently ren- dered in good faith, and with no notice that such forfeiture would be insisted upon. There may be adjudged cases going to that extent, but we should be very slow to follow them. In Ridgway v. Hungerford, 3 Adol. & E. 171, Lord Denman, C. J., declared that nrhere the servant was guilty of misconduct in .Tune, and the master, knowing it, retained him until November, "a condonation might be presumed." This was dicta, to be sure, but we think it was good law. In Prentiss V. Ledyard, 2S Wis. 131, although the con- tract was for no definite time, yet it was held that, "where the employe was to receive pay- ment at a specified rate, if he continued tem- perate and faithful in the employer's service, the fact that he was occasionally intemperate and discontinued the service for short peri- ods would not prevent bus recovering the stipulated rate for the time actually spent in such service, if he was received back into it, and continued therein, without any new ar- rangement being made, or any intimation given that the old one was terminated." We see no difference in principle between the waiver of the conditions of a contract In re- spect to personal habits, and In respect to interruptions of service, or any other stipula- tion. The question of waiver of the breach, by the retention of the employs for 11 or 12 days after the master's knowledge of the ex- istence of the causes, was held properly sub- mitted to the jury m McGrath v. Bell, 33 N. Y. Sui>er. Ct. 195. It is certainly equitable, and, we think, according to well-established principles of law, to hold that where an em- / ploye, for a fixed period and without any fault of his employer, absents himself for a short time, and then the employer, with knowledge of the fact, receives him back into his service without objection, and retains him until the termination of the contract, he there- by waives the right to declare the contract forfeited as to the services actually renderedJ ^his is not going as far as the opinion of tne court in Britton v. Turner, 6 N. H. 4S1. It is true, that case has frequently been dis- approved, but it is also true that it has been frequently approved. Elliot v. Heath, 14 N. BL 131; La ton v. King, 19 N. H. 280; Davis V. Baxrington, 30 N. H. 517; Pixler v. Nich- ols, 8 Iowa, 106; Byerlee v. Mendel, 39 Iowa, 382, and cases there cited, in which last case it was held that "where a party hires himself to another for a fixed period of time, and leaves the service before the expiration of the term, without any fault on the part of the employer, the former may recover the value of his services performed as upon a quantum meruit, without showing that he left the service of his employer for good cause." Britton v. Turner, was also followed In Fenton v. Clark, 11 Vt. 5G0; Oilman v. Hall, Id. 510; Blood v. Enos, 12 Vt. 625. There are strong equitable reasons to sus- tain the doctrine of. the above cases, but they would seem to be in conflict with the weight of authority, and we therefore cite them merely because they furnish strong reasons in favor of the conclusions which we have reached in this case. There is still another reason why this judgment should be sustained. Prior to the first trial there was a dispute as to the amount due, and the defendant offered and tendered judgment for the amount which he consid- ered due, with costs of action. Such offer and tender were competent evidence, and au- thorized a verdict of waiver of all forfeiture under the contract. Cahill v. Patterson, 30 Vt. 592; Seaver v. Morse, 20 VL 620; Pat- note V. Sanders, 41 Vt GO; Boyle v. Parker, 46 Vt 343. A party who proposes to insist upon a technical forfeiture should act prompt- ly, and consistently with the right claimed. The judgment of the circtiit court is af- firmed- BY OPEKATION OF LAW— IMPOSSIIilLITY. 615 SUrERINTENDENT & TRUSTEES OF PUI5LIC SCHOOLS OF CITY OF TRENTON T. BENNETT et aL ^:^/ (27 N. J. Law, 513.) ^V3 Supreme Court of New Jersey. June Term, 1859. Argued at Feb. term, 1859, before GREEN, C. J., and OGDEN, VREDENBURGII, and WHELPLEY, JJ. E. W. Scudder and Mr. Butcher, for plaln- tlCfs. Mr. Gummere and W. L. Dayton, for defendants. WHELPLEY, J. This case presents the naked question whether, where a builder has agreed, by a contract under seal, with the owner of a lot of land, " to build, erect, and completea building upon th e lot for a certai n entire price, but payable in arbitrary in- stallments, fixed without regard to the value of the work done, and the house before its cuinplotiou falls do'wn, solely by reason of ^latent defect in the soil, and -not on ac - count of faulty construction, the loss falls upon the builder or the owner of the land." The case comes before the court, upon a certifiealj from the Mercer circuit, for the advisory opinion of this court. The covenant of Evernham and Hill was to build, erect, and complete the school-house upon the lot in question for the sum of $2G10; the whole price was to be paid for the whole building; the division of that sum i nto install me nts, payable at certain staged of the work, "was not intended to sever (he entirety of the contract, and make the pay- ment of the installments payments for such parts of the work as might be done when they were paj-able: this division was made, not to apportion the price to the different part:j of the work, but to suit the wants of the contractor, and aid him in the comple- tion of the work; the consideration of the covenant to complete the building was the whole price, and not the mere balance that might remain after the payment of the in- stallments: it cannot be pretended that the contractor, after payment of a part of the installments, might refuse to go on and complete the building, and yet retain that part of the price he had received. Haslack V. Mayers, 2G N. J. Law, 284. No r ule of law is more firmly establisned by a~r iui^ - ir!il ' ti o f doc t stoutf thiin thife. tha t where a pa rty, by his ow n contract, croatos a'TTuiy or cnarge upon hims^ir . L'J is uuiinij "^ to make it good if he may, notwithstanding any accident by inevitable necessity, because he jnl ght have p rovid ed against it by his ^H^tractl iherefore. ir a lessee c ovenant' to repair a hous^ thoug"h It bo burno /when, having discontinued the office in Ne\Y York, and removed what goods were there I to Providence, where Keach had anothen (place of sale, they declined longer to emJ ploy the plaintiff, or to pay him his salary, though from that time to the date of the writ, he had been ready and willing to serve In said business, and had tendered his serv- ices in it to them, and had been unable to procure other employment; that the defend- antSj_as administrators of Ke a ch, wouutt~ap his hn pjfi ess b y selling the goods removed from New Yor k , with other p^oods of his, a t. Providence, and had been allowed by the' icourt of probate, for their services as admin-y istrators, the sum of three thousand dollars.' Upon this state of facts, the chief justice instructed the jury, that the death of Keach terminated this contract of service, and that no recovery of damages could be had of the defendants, as his administrators, for their refusal to employ the plaintiff under it after- wards; whereupon, the jury having return- ed a verdict for the defendants, the plaintiff, having duly excepted thereto, now moved for a new trial, on the ground of error in law in said instruction. Mr. Browne, for plaintiff. James Tilling- hast, for defendants. AMES, C J. It is, in general, true, that death does not absolve a man from his con- tracts; but that they must be performed by) his personal representatives, or their non-per-'i Lformance compensated, out of his estate J An exception to this rule, equally well estab- lished, at both the civil and common law, is, that in contracts in _which performance de- pends ' triTD n_tIl£_continued existence of a c er- taTn~person or thing, a condition als^ j mplig d, that"^the^jmg0S 5tbITrty o f performancearis- ing from the perishin^of .tlie-persan_or^ing shall excuseT^perfo^aance. The implica- ti^^'arlSesTn spite of the unqualified char- acter of the promissory words, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or chattel. The books afford many illustrations of this reasonable mode of con- struing contracts, de certo corpora, as the civil law designation of them is, in further- ance of the presumed and probable jntent of the parties. The most obvious cases are, the death of a party to a contract of mar- riage before the time fixed by it for the mar- riage; the death of an author or artist be- fore the time contracted for the finishing and delivery of the book, picture, statue, or other work of art; the death of a certain slave promised to be delivered, or of a horse prom- ised to be redelivered, before the day set for the delivery or redelivery; and the death of a master or apprentice before the expiration of the term of service limited in the inden- ture. The bodily disability from superven- ing illness, as of an artist, from blindness, ta paint the picture contracted for, or of a scholar to receive the instruction his father had stipulated should be received and paid for, has been held, for the like reason, ta excuse each from the performance of his contract Hall v. Wright, 1 El., BL & El. 746; Stewart v. Loring) 5 Allen, 306. The cases in support of these and other illustrations of the exception to the general rule are set down in the defendants' brief, and It is un- necessary to repeat them. Both at the civil and the common law, it is necessai r. that the pa rty ^who^ ^ would "avail himseff'"'gf' tST s ex^use^ f orjaon-perfouBance of the_ contrac t. should be without faultjn the mattex -Jipon which he relies as an excuse. The latest and most instructive case, upon this subject, so far as the discussion of the principle of decision is concerned, is that of Taylor v. Caldwell, decided by the queen's bench, in May last, 8 Law T. Rep. 356. In that case It was held, that the parties were discharged from a contract to let a music hall for four specified days for a series of concerts, by the accidental destruction of the hall by fire before the first day arrived. The full and lucid exposition by Mr. Justice Blackburn, who delivered the opinion of the court, of the BY OPERATION OF LAW— IMrOS.-^IBILITY. GVJ prior cases uud of tliu principle upon whicli they have been decided, leaves nothing fur- ther to be desired upon this subject. Does the case at bar fall witliiu tlie gen- eral rule, or within the exception we have been consider in;;'.' This must depend upon the nature of the contract, whether one, re- quiring the continuing existence of the em- ployer, Keacti, for performance on his part, or one which could, according to its spirit and meaning, be performed by the defend- ants, his administrators. The contract was, to employ the plaintiff as clerk and agent of the intestate, in his business, in New York and PLiladelphia: and it seems to us un- doubted, that th*^ ^!jiiiDtiniie<1 eyiRy pncp of 6oth pa rties to_the contract for the whole gtipulat ej^er m, was the basis upon whic h t h e_contractj)rocecd(i4» a-Q(~edent. thcTv / the contract, bound no longer to plaintiff, any more than he to 'Che act of God had taken away the master and principal,— tho law had revoked his agency, and" stopped the business to which alone his contract bound him,— and if he would serve the administrators in wind- ing up the estate, it must be imder a new contract with them, and under renewed pow- ers granted by them. Any other result than that this contract of service was upon the implied condition that the employer, as well as the employed, was to continue to live during the stipulated term of employment, would involve us in the strange conclusiea, that the administra tors might go on with the business of their mtestale ; m which — the plainti ff must continue w ith p6\\'{^ra uure- vo ked by the death of his principa l, or, thsL^ Tie, with new powers from them, was boundJ by the contract to serve them as new mas-j Iters, and In a different service, and that they! Iwere bound to grant him such powers, and! employ him for the stipulated time in such' service. The novelty of such a claim, and the contradiction of well-settled principles necessary to mlintain it, justify the ruling of the judge who tried the cause; and this motion must be dismissed with co>ts, and judgment entered upon the verdict. 620 DISCHARGE OF CONTRACT. ^> TAX VLEIT et al. v. JONES et aL (20 N. J. Law. 340.) ^' Supreme Court of New Jersey. 1845. Feb. Term, This was a certiorari to tlie common pleas of Hudson county to remove certain pro- ceedings, had in that court, uijder the "Act to secure to creditors an equal and just division of the estates of debtors, who con- vey to assignees for the benefit of credit- ors." The facts of the case appear in the opin- ion of the court delivered by RANDOLPH, J. The papers come before us in rather an irregular form;— there being two statements of the case sent up by dif- ferent branches of the court below; and un- der a rule to take proof as to what were the facts in evidence before the court of com- mon pleas, there have been two sets of affidavits taken; and each of these state- ments and affidavits differs from the other. Such a course of proceedings may have grown out of the situation of the court and the parties and the circumstances of the case; but it certainly Is not to be com- mended for a precedent, nor yet can this court reject the proceedings, if there shall appear to be sufficient on which to found iheir judgment The case according to the papers, is this. Some time prior to Decem- ber, 1841, S amuel Bridgart of Hudson county, madeajQ_a5SismrLent-^OE— the—benfir fit of his creditors, amo ngst whom w ere the plaintitTS Ih cer tiorari. Van Vliet Thd "Wlkog, who filed their account pursuant t o law, amounting to $2103; to which Jones and the other defendants in certio- rari, who were also applying creditors of Bridgart, filed their exceptions; and this claim and the exceptions' thereto coming before the court of common pleas for trial, neither party demanding a jury, the court disaUowed the account o n the ground that Van Vllet and Wikoff had taken . a bond an d mortgage of Bridgart for the same accoun t. ATthough there is much discrepancy as to what was proved before the court, fortu- nately as to this bond and mortgage, both the statements and affidavits substantially agree; and from these sources it appears to have been proved before the court be- low, that Bridgart had an account with the plaintiffs for goods bought of them, and that as a collnteral s emritv both as to that ac- count and also a further running account all of which is embraced In the present claim, the bond and mortgage were given, — a small note was also included in the ac- count and covered by the security. The mortgage was on a house and lot in Jersey City, being the third in priority, and a bill to foreclose was filed by one of the prior mortgagees and the plaintiffs made parties, who also became the purchasers of the prop- erty, on its being sold under a decree, for fifteen dollars less than the amount of the prior incumbrances. There can be no douM, as a general rule, that the taking o f" aT bond "giid murlgage OT~ol:her security of a hig her nature ext inguishes a de bt arising from mere matter of account , yet~ this^will depend on the intention of the parties. If the higher security was given as the future evidence of the debt, to which the party was to look for payment, then the less security would merge in the greater; but, if t he higher se- ional or "col- c nrity -wna tn pe merely ^ lateral to the less, showin g that the int_en- tl on of _jt £e^ parties was to ]ieep_the latter open ^o be looked p]p" hnn gi,«rn)>)| th'^ y^c^\(^ gnri witlmni- hid I knowledqe or consent. These circumstances ■nere unknown to Wood and to Allis. Steele was the surety of Newson. It does not /ap- pear that there was any controversy about the facts. The argument being closed, the court instructed the jury, " ^hat if the sai d alteration wa s made after the note was sign - e d by the detenaant, Steele, and by him de - livered to the other maker, Newson, Steel e was discharged from all liability on said note." The plaintiff excepted. The jury T O uu TT^for the defendant, and the plaintiff prosecuted this writ of error to reverse the judgment Instructions were asked -by the plaintiff's counsel, which were refused by the court One was given with a modification. Exceptions were duly taken, but it is deemed unnecessary particularly to advert to them. The views of the court as expressed to the jury, covered the entire ground of the contro- versy between the parties. The state of the case, as presented, relieves us from the necessity of considering the ques- tions,— upon whom rested the burden of proof, the nature of the presumption arising from the alteration apparent on the face of the pa- per, and whether the insertion of a day in a blank left after the month, exonerates the maker who has not assented to it Was the instruction given correct? It was a rule of the common law as far back as the reign of Edward III, that a rasure in a deed avoids it. The effect of alterations in deeds was considered in Pigot's Case, 11 Coke, 27, and most of the authorities upon the subject down to that time were referred to. In Master v. Miller, 4 Term R. 320, 1 Smith, Lead. Cas. 1141, the subject was elaborately examined with reference to commercial pa- per. It was held that the established rules apply to that class of securities as well as to deeds. It is now settled, in both English and American jurisprudence, that a material alteration in any commercial paper, without the consent of the party sought to be charged, extinguishes his liability. The materiality of the alteration is to be decided by the court. The question of fact is for the jury. The alteration of the date, whether it hasten or delay the time of payment, has been uniform- ly held to be material. The fact in this case that the alteration was made before the note passed from the hands of Newson, cannot af- fect the result He had no authority to change the date. The grounds of the discharge in such cases are obvious. The agreement is no longer the one into which the defendant entered. Its identity Is changed: another is substituted without his consent; and by a party who had no authority to consent for him. There is no longer the necessary concurrence of minds. If the instrument be under seal, he may well plead that it is not his deed; and if it be not under seal, that he did not so promise. In either case, the issue must necessarily be found for him. To prevent and punish such tampering, the law does not permit the plain- tiff to fall back upon the contract as it was originally. In pursuance of a stern but wise policy, it annuls the instrument, as to the party sought to be wronged. The lailes, that where one of two innocent persons must suffer, he who has put it in the power of another to do the wrong, must bear the loss, and that the holder of commercial paper taken in good faith and in the ordinary course of business, is unaffected by any latent infirmities of the security, have no application this class of cases. The defendant couldi o more have prevented the alteration tharu he could have prevented a complete fabrica tion; and he had as little reason to anticipat( one as the other. The law regards the secur ity, after it is altered, as an entire forgery with respect to the parties who have not con sented, and so far as they are concerned, deals with it accordingly. The instruction was correct and the judg- ment is affirmed. mc INDEX. ACCEPTANCE. See "Offer and Acceptance." Of goods sold within statute of frauds, see "Statute of Frauds," § 8. ACCOMMODATION. Liability of wife's separate estate, see "Mar- ried Women." ACKNOWLEDGMENT. Of contract made during infancy, se»» "In- fants," § 3. ADEQUACY. Of consideration, see "Consideration," § 2. AFFECTION. See "Consideration," § 6, AGE. Presumption as to undue influence, see "Undue Influence." AGENCY. Of husband for wife, see "Married Women." ALTERATION. See "Reformation." Alteration of the date of a note without the consent of the party sought to be charged ex- tinguishes his liability. — Wood v. Steele, 622. The fact that an alteration in a note is made by one of the parties signing it before it passed from his hands does not alter its effect of re- leasing one who had signed previously. — Wood V. Steele, 622. APPRENTICES. Code Md. art. 6, § 20, provides a method by which a father may bind his son as appren- tice until he reaches the age of 21. A mother entered into a written agreement with defend- ants to bind her son, then '20 years of age,, as apprentice for 5 years. Ilclil, that the contract was void.— Baker v. Lauterback, 218. ASSIGNMENTS. See "Assignments for Beneflt of Creditors." Of mortgage, see "Mortgages." Right of assignee to disallirm contract made by infant, see "Infants," § 6. One who acquires title to real estate from the owners thereof after a contract of sale bv the latter to others cannot maintain an action on the contract. — McGovern v. Hern, 183. A contract in restraint of trade, running to a corporation, "its successors and assigns," is assignable to and enforceable by a corporation who succeeds to the business and property of such obligee. — Diamond Match Co. v. Roeber, 461. Manufacturers of a certain machine made a contract for the sale of a number of them, to be paid for by the notes of the purchasers. It was provided by the contract that the purchas- ers were to sell such machines within a given territory, receiving in payment either cash, which was to be applied in payment of their notes, or notes, which were to be delivered to the manufacturers as collateral security. Held, that the purchasers cannot assign the contract, so as to compel the manufacturers to take the notes of other persons, in lieu of the purchas- ers', in payment of the machines, as Code Iowa, g§ 2082-2087, declaring all contracts as- signable, only authorize the transfer of the as- signor's rights in possession or in action under such contracts, but not of his obligations there- under. — Rapplye v. Racine Seeder Co., 534. A written promise to pay bearer a sum of money provided a certain ship arriyus at a European port of discharge free from capture and condemnation by the British is not assign- able.— Coolidge V. Ruggles, 538. A court of equity will not entertain a bill by the assignee of a strictly legal right, merely because he cannot bring an action at law in his own nanic. ^^•hero he has a complete legal remedy. — Walker v. Brooks, 539. Defendant contracted to deliver 10,000 tons of lead ore from its mines to the firm of B. & E., at their smelting works, the ore to be de- livered at the rate of 50 tons per day, and to become the property of B. ^S: E. as soon as delivered. The price was not fixed, but as often as 100 tons had been delivered the ore was to be assayed by the parties, or, if they could not agree, by an umpire; and after that had been done, and according to the result of the assay, and the proportions of lead, silver, silica, and iron thereby proved to be in the ore, the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore and the ascertainment of the price, defendant had no security for its paviiu'iit. (>xrcpt in the character and solvency of B. & E. Held, that the contract was per- sonal in its nature, and that plaintiff, claim- ing as assignee, could not compel defendant^ to continue delivering the ore. — Arkansas Val. Smelting Co. v. Belden Min. Co., 542. After a part of the ore had been delivered, the firm of B. & E. dissolved, and the contract was assigned to B., to whom thereafter de- fendant continued to deliver ore under the con- tract. Held, that this fact did not put defend- ant under any obligation to deliver ore to plain- tiff, an entire" stranger to the contract, to whom B. had assigned it without defendant's con- sent.— Arkansas Val. Smelting Co. v. Belden Min. Co., 542. Hopk.Sel.Cas.Cont. An attaching creditor without notice of the assignment acquires a lien on the debt as valid (623) G24 INDEX. as the title of a purchaser.— Vanbuskirk T. Hartford Fire Ins. Co., 545. Where one assigned a claim against an in- surance company, and before notice to the company a creditor of the assignor attached it, such as'sicnment would not defeat the attach- ment.— Vanbuskirk V. Hartford Fire Ins. Co., 545. To perfect an assignment of a chose in ac- tion, notice of such assignment must be CTven to the debtor within a reasonable time.— Van- buskirk V. Hartford Fire Ins. Co., 545. ASSIGNMENTS FOR BENEFIT OF CREDITORS. A creditor who, by a secret agreement not to assert his claim, induced an assignee for the benefit of creditors and other creditors to release the debtor, cannot maintain an action against the assignee for the dividend on his debt.— Frost v. Gage, 509. Where the purchasers under a contract to buy certain machines to be sold, and the pro- ceeds paid to the vendors on account, become insolvent, and make an assignment for the ben- efit of creditors, the manufacturers may re- fuse to complete the contract.— Rapplye v. Racine Seeder Co., 534. Where a party to an executory contract be- comes insolvent before performance, it is the duty of the assignees within a reasonable time to elect whether or not to proceed under the contract, and notify the other party thereto ac- cordingly.— Hobbs V. Columbia Falls Brick Co., 506. Where the assignees held the assigned prop- erty for more than three months, and took no action with reference to an executory contract made between the assignors and defendant, but gave defendant to understand they were not ^oing to claim under it, a reconveyance of the assigned property to the assignors gave them no right of action on the contract. — Hobbs v. Columbia Falls Brick Co., 566. ATTACHMENT. Validity as against assignment, see "Assign- ments." ATTORNEY AND CLIENT. See "Breach of Trust"; "Champerty and Main- tenance." Contracts against public policy, see "Injury to Public Service." AUCTIONS. Withdrawal of bid, see "Offer and Acceptance," § 10. BANKS AND BANKING. A deposit of money to remain in a bank for a certain time being illegal and void under Rev. St. c. 36, § 57, no action can be main- tained by the depositor on such contract. — White V. Franklin Bank, 520. The parties to an illegal deposit in a bank not being in pari delicto, the depositor may maintain an action for the money. — White v. Franklin Bank, 520. BASTARDY. A joint plea of the infancy of one defendant in an action on a joint and several bastardy bond is bad iu substance, as in proceedings un- der the bastardy act the infancy of the re- puted father is no defense, when he is legally chargeable in exoneration of the public. — Town- ship of Bordertown v. Wallace, 281. BILLS AND NOTES. See "Alteration"; "Corporations." As payment, see "Payment." By wife, see "Married Women." Effect of duress, see "Duress," §§ 3, 4. Rights of holder of unauthorized notes of cor- poration, see "Corporations." BONA FIDE PURCHASERS. From fraudulent vendee, see "Fraud," § 6. Of mortgage, see "Mortgages." BONDS. In bastardy proceedings, see "Bastardy." A bond of a public officer voluntarily given to the United States, although not prescribed or required by law, is binding on the parties to it.— United States v. Tingey, 276. Where it is charged that a voluntary bond has been given, irregularities in proceedings under the statute are irrelevant in an action on the bond. — Township of Bordentown v. Wal- lace, 281. BREACH OF MARRIAGE PROMISE. Defendant, who was a suitor of plaintiff, an unmarried woman, solicited her to have sexual intercourse with him, and on her refusal agreed that if she should yield to his wishes, aud there- by become pregnant, he would at once mari-y her, to which she assented, and did have sexual intercourse with defendant, from which preg- nancy resulted, and from which a child was born to plaintiff. Ueld, that an action for the breach of the contract to marry would not lie, the contract being based on an immoral con- sideration.— Saxon V. Wood, 444. BREACH OF TRUST. A contract by which an attorney takes a claim against an intestate for collection, and to that end agrees to administer the estate, is void.— Spinks v. Davis, 452. BROKER. Sufficiency of memorandum by broker, see "Statute of Frauds," § 9. CAPACITY. Of parties, see "Corporations"; "Drunkards"; "Infants"; "Insane Persons"; "Married Wo- men": "United States." CARRIERS. A common carrier cannot stipulate for ex- emption from responsibility for the negligence of himself or servants.— Railroad Co. v. Lock- wood, 480. INDEX. 625 CHAMPERTY AND MAINTENANCE. A contract by which an attorney agrees to institute and prosecute suits at his own ex- Ijensc, and receive as Lis only compensation a portion of the projierty I'ecovered, is void. — Thompson v. Keynolds, 440. Defendant was a devisee, under a will, of certain real estate, and the validity of the wijl was threatened in proceedings instituted in the surrogate's court. He sought and retained plaintiff as attorney, and gave him a deed of the undivided half part of the property, taking back his covenant to conduct the defense, pay- ing all costs and expenses, and indemnifying defendant against liability. Uclu, that this did not constitute champerty, and the statute did not condemn such an agreement. — Fowler v. Callan, 442. The New York Code contemplates a case in which the action might never have been brought but for the inducement of a loan or advance ottered by the attorney, and by which the latter, by oUicious interference, procures the suit to be brought, and obtains a retainer in it.— Fowler v. Callan, 442. The old rules regarding champerty are abro- gated except as preserved by the statutes. The attorney may agree upon his compensation, and it may be contingent upon his success, payable out of the proceeds of the litigation. — Fowler V. Callan, 442. A champertous and illegal contract between plaintiff and his attorney can only be set up by the client against the attorney when the champertous agreement itself is sought to be enforced. — Courtright v. Burns, 443. CHARTER. Limitation of corporate authority, see "Cor- porations." COLLATERAL AGREEMENT. See "Statute of Frauds," §§ 3, 4 COMBINATIONS. See "Monopolies." COMPROMISE. See "Consideration," § 4. CONCEALMENT. Amounting to fraud, see "Fraud," § 3. CONDITIONS. Concurrent, see "Performance or Breach." § 4. Conditional acceptance, see "Offer and Accept- ance," § 9. Precedent, see "Performance or Breach," § 2. Subsequent, see "Performance or Breach," § 3. CONSIDERATION. See "Pleading"; "Subscriptions." Expression of consideration in written con- tracts, see "Statute of Frauds." Sealed agreements, see "Contracts under Seal," § 1. Hopk.Sel.Cas.Cont.— 40 § 1. Necessity. An administratrix, who promises to pay a debt of her intestate, cann>t bf held liable in her personal capacity, where made witiiout con- sideration, although in writing. — Kann v. Hughes, 224. § 2. Adequacy. An agreement by A. to perform a contract and rent B.'s store 10 days before the contract required is sulhcient consideration for a prom- ise by B. not to engage in the grocery lousi- ness for five years in a certain town. — Doyle v. Dixon, 350. Refraining from the use of liquor and to- bacco for a certain time at the request of an- other is a suUicient consideration for a prom- ise by the latter to pay a sum of money. — Hamer v. Sidway, 220. Giving up a guaranty for advances on be- half of one party is sulhcient consideration for a promise by the guarantor to pay acceptances of the first party.— Haigh v. Brooks, 220. Where one had received something which at the time he considered valuable, in considera- tion of a promise, he cannot excuse a breach of the promise because the thing was not of the value he supposed.— Haigh v. Brooks, 22G. An agreement made by a father, in considera- tion of the surrender to him of his son's note, to pay the amount of the note, is founded on a valid consideration, though the son at the time of such agreement may have been dead, and the note may, to the knowledge of both parties, have been uncollectible because of the insolvency of his estate.— Judy v. Louderman, 227. The law will not enter into an inquiry as to the adequacy of the consideration for a prom- ise, but will leave the parties to be the sole judges of the benefits to be derived therefrom, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition. — Judy V. Louderman, 227. A consideration of one cent will not support a promise to pay $000.- Schnell v. Nell, 230. A promise by a husband to legatees to pay legacies given by his wife, she having no prop- erty to pay them with, is not binding on him. — Schnell v. Nell, 230. § 3. Mutual promises. Plaintiff's promise to account to defendant for one-half of the profits is supported by de- fendant's obligation to share one-half of the losses. — Coleman v. Eyre, 232. A promise to refund in case of a deficiency is coosideratimi for a promise to pay for an excess over what is called for in a deed. — Sew- ard V. Mitchell, 233. Where the agreement of plaintiff and defend- ant to abide by an award are not concurrent, the promise of defendant is not binding on him. — Keep V. Goodrich, 236. An agreement by an indorser to pay a note not yet matured is a valid consideration for an agreement to pay for the money paid by him upon it. — L'Amoreux v. Gould, 238. A verbal agreement by plaintiffs to work in defendant's mine, and to receive ^l.'iO per ton for all the ore they produced, "as long as they could make it pay," is not enforceable as an executory contract, because of its uncertainty and want of mutuality. — Davie v. Lumber- man's Min. Co., 240. § 4. Forbearance. An agreement by a creditor to forbear prose- cuting his claim, and an actual forbearance, ia 626 INDEX. good cousideration for a note by a third person i to the creditor. — Robinson v. Gould, dJb. Compromise of a claim is good consideration for a promise, although litigation has not been actually commenced.— Cook v. Wright, -4'-. The abandonment by the sole heir at law of a testator of opposition to the probate of the will, at the request of the executor, is a sutb- cient cousideration for the promise of the es- ecutur to pav a named sum to a third person, thousrh such payee had no interest in the es- tate under the will, or otherwise.— Rector, etc., of St. Mark's Church v. Teed, 246. Forbearance to sue on an honestly asserted claim for damases arising out of a trade of property is suliicient consideration for a prom- ise to pay, whether such damages could haye been recoVered or not.— McKinley v. Watkins, 248. Forbearance of suit to enforce a disputed claim or right, where the claim or right is honestly asserted under a belief that it is sub- stantial, although it is in fact wholly uufouud- ed, is a good consideration for a promise to pay money.— Rue v. Meirs, 249. § 5. Natural affection. The love a husbaud bore his wife is no con- sideration for a promise to legatees to pay legacies left by the wife.— Schnell v. Nell, 2dU. Natural love and affection is not a sufficient consideration for a promissory note given by father to son.— Fink v. Cox, 253. § 6. Moral obligation. Services bv a wife in the acquisition of her husband's property are no consideration for his promise to legatees to pay legacies left by her. -Schnell v. Nell, 230. A promise by a father to repay strangers for expenses incurred in caring for his son, who was of full age, and not a member of his fam- ily, cannot be enforced.— Mills v. Wyman, 2o4. Where a creditor accepts his debtor's notes secured by a chattel mortgage for part of the debt due, in satistaction of the whole, the whole debt is extinguished. — Jalfray v. Davis, 26G. I § 9. Fast consideration. I Transfer of an unenforceable bargain for the purchase of land, not made at the request of the maker, is not consideration for a note. — iihle V. Judson, 269. An oral contract by defendant's testator with plaintiff to purchase land, and on its resale to pay plaintiff the increase over the original pur- chase price, iu consideration of which plaintiff agreed to pay an old debt he owed testator, and to pay the taxes, insurance, etc., on the land, and keep it in good repair, though void under the statute of frauds, its performance by plain- tiff was sufficient to uphold a subsequent prom- ise by testator, after a resale of the land, to pay plaintiff the amount realized over the orig- inal purchase price. — Pool v. Horner, 271. If the consideration, even without request, moves directly irom the plaintiff to the defend- ant, and inures directly to the defendant's ben- efit, the promise is binding though made upon a past consideration. — Boothe v. Fitzpatrick, 272. Plaintiff had guarantied repayment of ad- vances made to defendant, and defendant, who became a bankrupt, after the fiat was issued promised to repay plaintiff" if he was compelled to pay the advances. Ueld made on good con- sideration.— Earle V. Oliver, 274. CONSTRUCTION. § 7. Impossible promises. A contract by which one bound himself that certain land, belonging to another, should sell for a certain amount or more on a certain day, is void. — Stevens v. Coon, 256. § 8. Doing wliat one is bound to do. Promise of a captain of a ship to divide the wages of deserting members of the crew among the remainder is void.— Stilk v. Mynck, 257. Plaintiff agreed by an instrument under seal to erect a building at a fixed price, which was inadequate, and refused to proceed, but, on de- fendant's parol promise to pay for the material and work, finished the building. Held, that he might recover on the promise.— Munroe v. Perkins, 258. Where one contracted to do work, and receive in payment of an installment an assignment of a mortgage, the completion of the work by him is no consideration for a guaranty of the mort- gage by the assignor.— Vanderbilt v. Schreyer, 260. The receipt of a part of a debt in full satis- faction being void, the fact that a similar agree- ment was made with all the creditors, without its appearing that they had been paid, or had released their debts, or signed any composition deed, does not alter the case.— Wheeler v. Wheeler, 264. The receiving of a part of a debt, then due, in full satisfaction, is no legal defense to an ac- tion to recover the balance.— Wheeler v. Wheel- er, 264. Effect of custom, see "Custom and Usage." Parol evidence to vary or alter terms, >-'ee "Evi- dence." § 1. General rules of construction. In the construction of contracts the first rule to be regarded is, to make them speak the in- tention of the parties, as gathered from the entire transaction. All other rules are subor- dinate to this one, and when they contravene it are to be disregarded.— Gray v. Clark, 556. Nice grammatical construction is not always to be regarded, especially when instruments are inexpertly drawn.— Gray v. Clark, 556. When a term or phrase is eqtiivocal in re- gard to the subject to which it refers, resort may be had to the circumstances under which the contract was executed, and the contempora- neous exposition of the parties, as evidenced by possession and other similar acts.— Gray v Clark, 556. § 2. Parties. The purchaser of a business, who delivers goods to one contracting with the original own- er, without informing such person of the change, cannot recover for the goods.— Boston Ice Co. V. Potter, 524. A factor who promised the consignor to ac- cept a draft drawn against cotton consigned to him when he received the bill of lading is not liable to the payee on such promise, or for the proceeds of the cotton.— Exchange Bank v. Rice, 526. Plaintiff may enforce a promise made by de- fendant to a third person for his benefit, al- though not privy to the consideration, nor cog- nizant of the promise when made.— Lawrence V. Fox, 529. § 3. Nature of contract. A contract to manufacture and furnish arti- cles for the especial, exclusive, and peculiar use of another, with special features which he INDEX. 627 requires, and which render them of value to him, but useless and unsalable to others, — arti- cles whose chief cost and value are derived Iroiu the labor and skill bestowed upon ihciii, and not from the materials of which they are made, — is a contract for work and labor, and not a contract of sale.— Beck eal t after becoming of full age.— Henry V. Root, 301. § 4. Disaffirmance. An infaiit having a general guardian may maintain trover before coming of age for a horse sold, but not delivered with his own hands, without demanding the horse.— Stafford V. Roof, 200. The sale and actual delivery of a personal chattel by au infant is voidable before he at- tains the age of 21 years. — Stafford v. Roof, 200. Deed conveying real estate, executed by minor, must be disaflirmed within a reasonable time after he cumes of age, or he will be barred of his right to do so. — Goodnow v. Empire Lumber Co., 202. Reasonable time within which minor must disaffirm deed is a question for the court, and a delay of three years and a half, unexjjlained, is unreasonable. — Goodnow v. Empire Lumber Co., 292. Where an infant executed a deed of his realty, and after coming of age deeded the same property to another, the second deed is a disaffirmance and avoidance of the first. — Tucker v. Moreland, 205. Where an infant purchased a stock of drugs which were afterwards taken on execution against a third party, the infant may on dis- ailirmance of the contract maintain an action for the recovery of the purchase money, even though he took no steps to recover the prop- erty thus wrongfully taken. — Lemmon v. Bee- man, 313. The contract of an infant is voidable, and may be repudiated during nonage, so as to ef- fectually destroy the contract for all purposes. — Rice V. Boyer, 315. § 5. Performance of contract. An infant contracting to labor until of age for his board, clothing, and education, which was approved by his guardian, where the con- tract has been fully performed cannot recover on quantum meruit.— Stone v. Dennison, 116. § 6. Personal privilege. The defense of infancy being a personal priv- ilege, a joint plea of the infancy of one defend- ant in an action on a joint and several bond is bad on demurrer. — Township of Bordentown V. Wallace, 281. Under an assignment by an insolvent, includ- ing "all his rights of action for goods or es- tate, real or personal," the assignee will not bo permitted to disaffirm a mortgage made by the insolvent while under age, and not ratified or aOirnied by him after attaining his majority; the right to avoid such a contract is a per- sonal i>rivilcge of the infant. — Mansfield v. Gor- don, 204. INJUNCTION. Where a bond was given providing liquidated damages in the sum of .'?1.5,000 for a breach of this covenant, the obligee is not confined to his remedy by way of damages for the breach of contract, but upon defendant's violation there- of, is entitled to an injunction restraining him from continuing to disregard his covenant. — Diamond Match Co. v. Roeber, 461. It is not necessary that, before a preliminary injunction issue restraining violation of an G32 INDEX. agi-eement not to engage in a certain business in a certain place, the rights of the parties be established by a judgment at law.— Carll v. Snyder, 4(J5. INJURY TO PUBLIC SERVICE. An assignment by a public officer of the fu- ture salary of his office is contrary to public policy and void. — Bliss v. Lawrence, 425; Same V. Gardner, Id. An agreement for compensation for procur- ing a contract from the government cannot be enforced.— Providence Tool Co. v. Norris, 428. A contract to take charge of a claim before congress, and prosecute it as an agent and at- tornev for claimant, is void.— Trist v. Child, 430. Professional services by an attorney in pro- cuiing the allowance of a claim by congress may be recovered for when they are not blended with services which are forbidden. — Trist V. Child, 430. INSANE PERSONS. A deed executed by a person when non corn- pos mentis is voidable only, and may be rati- fied by him when he is of sane mind by ac- ceptance of the benefits. — Allis v. Billings, 319. The deed of an insane person not under guar- dianship, which has never been ratified or af- firmed, may be avoided by his heirs. — Hovey v. Hubsou, C)22. An obligation entered into by an insane per- son to repay money loaned, of which he had the benefit, is valid.— Mutual Life Ins. Co. v. Hunt, 325. Declaring a person insane on inquisition taken subsequent to an agreement to repay money loaned does not affect such agreement. — Mutual Life Ins. Co. v. Hunt, 325. It is no defense to trover for a note pledged by plaintiff while insane that defendajit did not know of, and had no reason to suspect, such insanity, and that he acted without fraud. — Seaver v. JPhelps, 326. The liability of the estate of an insane per- son over 21 years of age and under guardian- ship for necessary nursing and care furnished in good faith and under justifiable _clrcura- stances is not changed by Rev. St. c. 67, § 22. — Sawyer v. Lufkin, 328. INSOLVENCY. See "Assignments for Benefit of Creditors." INTENT. Contractual intention, see "Offer and Accept- ance," § 12. INTEREST. See "Implied Contracts"; "Usury." INTOXICATING LIQUORS. One who soils lirpior without a license in violation of the excise law cannot recover of the purchaser.— Griffith v. Wells, 416. JUDGMENT. See "Pleading." A judgment is not a contract. — O'Brien v. Young, 11. KNOWLEDGE. As affecting false representations, see "Fraud," §2. LAPSE. Of offer or acceptance, see "Offer and Accept- ance," § 11. LETTERS. Acceptance by letter, see "Offer and Accept- ance," § 7. LIBEL AND SLANDER. A journalist cannot protect himself from the consequences of publishing a libelous article by assurances of its truthfulness, and by a con- tract of indemnity from the writer of the libel. The case comes within the rule that there can be no contribution or indemnity between joint wrongdoers. — Atkins v. Johnson, 412. Nor will such contract avail the publisher, though renewed after the publication of the libel, and made in consideration that he would not disclose the name of the writer on its be- ing demanded by the victim of the article. — Atkins V. Johnson, 412. A contract between an author, intending to write an autobiography, and a publisher, whereby the author agrees "to accept full re- sponsibility for all matter contained in said work, and to defend at his own costs any suits which may be brought against the publisher for publishing any statement contained in said work, and to pay all costs and damages arising from said suits." does not show on its face that the parties contemplated the publication of scandalous or libelous matter, so as to prevent the publisher from recovering for the author's refusal to permit it to publish the work after it was written.— Jewett Pub. Co. v. Butler, 414. LICENSES. Sale of liquors without license, see "Intoxicat- ing Liquors." To enter lands, see "Statute of Frauds," § 6. MAINTENANCE. See "Champerty and Maintenance." MARRIAGE. See "Breach of Marriage Promise"; "Restraint of Marriage." Agreement in considoi'sitlon of marriage, see "Statute of Frauds," § 5. MARRIED WOMEN. A covenant entered into by a feme covert, except as to her separate property or property subject to exclusive control, is void.— Martin v. Dwelly, 331. A deed of lands belonging to a feme covert, executed by her with her husband, but not INDEX. 633 acknowledged by her pursuant to the statute, is not such an agreement to convey as will be enforced against her heirs. — Martin v. Dwelly, 331. A wife is not liable on a note as a feme «ole, unless her husband has voluntarily sepa- rated from and abauduued her with an in- tent to renounce de facto the marital relation. — Gregory v. Pierce, 335. A debt of a married woman, contracted for accommodation of another, without considera- tion to her, will not be enforced iigainst her separate estate, unless exi)rossly made a charge thereon. — Willard v. Eastham, 330. A maVried woman is bound by a charge cre- ated by her own express agreement for a good consideration, though for a purpose not benefi- cial to her separate estate. — Owen v. Cawlev, 339. A married woman is liable for services ren- dered by her procurement I'or the benefit of her separate estate.— Owen v. Cawley, 339. A married woman may avail herself of the agency of her husband as if they were not mar- ried. — Owen v. Cawley, 339. .\ married woman may bestow hoi- separate «state upon her husband. — Osburn v. Throckmor- ton, 374. MASTER AND SERVANT. No recovery can be had on a quantum mer- uit, for services rendered in the grocery part of the business under a contract to work for agreed wages as bartender and clerk for a dealer in groceries and liciuors, the sale of the latter being prohibited when the contract was made and the services rendered. — Sullivan v. Hergan, 490. MEMORANDUM. Sufficiency under statute, see Frauds," § 9. 'Statute of MERGER. Of oral agreement in writing, see "Offer and Acceptance," § 12. See "Infants." MINORS. MISTAKE. § 1. Of law. Where wife transfers her separate estate to her husband, she cannot avoid the transaction because of her ignorance of the law. — Osburn V. Throckmorton, 374. § 2. Of fact. One who indorsed a bill of exchange on the representation that it was a guaranty, and be- lieving it to be a guaranty, is not liable as in- dorser. — Poster v. MacKinnon, 358. Where one ordering goods signed his name so that it resembled the name of a reliable firm, and the goods were directed to the firm, though to his address, there was no contract with him, and a sale bv him conveyed nothing. —Gundy v. Lindsay, 3G0. A factor who sold corn in ignorance of the fact that it had already been sold to another is not liable for the price. — Couturier v. Hastie, 3G3. One who has exchanged land for land in another state, with which both parties are un- acquainted, but whose value is stated to them by a third person, under a mistake as to the identity of the laud, can, on learning of the mis- take a few mouths after the deeds have been maile and delivered, rescind by tendering back a deed of the land and the notes ami mortgage received by him to boot, on the ground of mu- tual mistake, since he cannot be considered negligent in relying on the third person's state- ments.— Irwin v. Wilson, 3G(j. Where defendants had sold a blooded cow for 514 cents per pound, supiiosjnj; her to be sterile, hrlil that they were justili"!! in rescind- ing the sale before delivery on finding her to be in calf.— Sherwood v. Walker, 370. MODIFICATION AND MERGER. Release of a party from performance of a contract is sufficient consideration for his prom- ise 1o aocnunt with the other party for moneys paid by the latter under the contract.— Cutter v. Cochrane, 507. A lesser security merges in and is extin- guished by a higher security, taken for the same debt, unless taken as further collateral security.— Van Vleit v. Jones, 620. MONEY HAD AND RECEIVED. Recovery from depositary under illegal con- tract, see "Depositaries." MONEY LENT. Recovery of money lent for gambling, see "Gaming." MONOPOLIES. Where coal companies having control of certain coal regions enter into an agreement to con- trol the output, a bill drawn by one company on another to equalize prices on a settlement under the contract cannot be recovered. — Mor- ris Run Coal Co. v. Barclay Coal Co., 469. An agreement between several parties, sever- ally engaged in the business of manufacturing and selling balance shade rollers, for the pur- pose of avoiding competition, organize them- selves into a corporation, and severally enter into an agreement with the corporation, so or- ganized, that all sales of the shade roller shall be made in the name of the corporation, and at once reported to it: that, when either party shall establish an agency in any city for the sale of a roller made exclusively for that pur- pose, no other party shall take orders for the same roller in the same place; and that the prices for rollers of the same grade, made by the different i>arties. shall be the same, and shall be according to a schedule contained in the contract, subject to changes which may be made by the cori>oration ui^on recommendation of three-fourths of the stockholders. — is not void as in restraint of trnde. — Central Shade- Roller Co. V. Cushman, 473. An agreement by a patentee to allow an as- sociation and its members the exclusive use and sale of inventions patented by him is not illegal as creating a monopoly or being in restraint of trade. — Good v. Daland, 474. An association of stenographers, formed to establish and maintain uniform rates of charges, and to prevent competition among its members under certain penalties, is illegal, as in restraint of trade and against public policy. and one member cannot maintain an action t)o4 INDEX. against another for damages occasioned by the latter underbidding the former, in violation of the rules of the association. — More v. Bennett, 476. MORAL OBLIGATIONS, See "Consideration," § 6. MORTGAGES. Notes were given, secured by mortgage, the consideration being the good will, fixtures, and stock of a business, the two latter specified in in- ventories upon which each article with its price was separately cariiod out. A part of the stock sold and specified in the inventory was lager beer, cider, ale, porter, and alcohol, the sale of the ale, porter, and alcohol being illegal. On petition to foreclose by an assignee for value and without notice of the iiotos and mortgage, held that, the articles illegally sold and their value being certainly ascertainable, the contract is divisible, and mortgage may be foreclosed for the amount of the legal sales. — Shaw V. Carpenter, 491. An assignee of a bona fide assignee of a mortgage, whose assignment was not register- ed, is not affected by registry, after the first assignment and before the second, of a prior conveyance to a cestui que trust under a secret trust.— Mott v. Clark, 546. Assignee of a mortgagee talces subject to the equities of the mortgagor, but not as to latent equities of cestuis que trustent of the mort- gagor or other persons. — Mott v. Clark, 546. MUTUAL PROMISES. .See "Consideration," § 3. NECESSARIES. Infant's contracts for, see "Infants," § 1. NEGLIGENCE. Limitation of carrier's liability, see "Carriers." NOVATION. Where a debtor left money in the hands of a third person, who agreed to pay a debt, the creditor having never accepted such person as his debtor, or released the original debtor, can- not maintain an action against such third per- son. — Butterfield v. Hartshorn, 5G8. OBSTRUCTING JUSTICE. A creditor of one who has sold all his prop- erty, and fled from the country, agreed with complainant that if he would procure the alli- davits and testimony of the debtor, and of two other witnesses, showing that no consideration was paid for said property, and that the pur- chaser knew of the debtor's insolvency, lie would give complainant a share of whatever he recovered upon a creditors' bill filed by him against the debtor and said purchaser. Held, that the agreement was illegal, as leading to subornation of perjury. — Goodrich v. Tenney, 434. A creditor of one who had sold all his prop- erty, and fled from the country, agreed with complainant that if he would procure the affi- davits and testimony of the debtor, and of two other witnesses, showing that no consideration was paid for said property, and that the pur- chaser knew of the debtor's insolvency, he would give complainant a share of wliiitever he recovered ui)ou a creditors' bill filed by him against the debtor and said purchaser. Held that, the contract being illegal, the creditor, although he has recovered a large sum of money by help of it, will not be compelled by the courts to account therefor to conii)lainaut. — Goodrich v. Tenney, 4o4. A promissory note given for compounding a public prosecution for a misdemeanor is found- ed on an illegal consideration. — Jones v. Kice, 439. OFFER AND ACCEPTANCE. Acceptance of goods within statute of frauds, see "Statute of Frauds," § 8. Knowledge of oiler of reward, see "Rewards." § 1. Necessity of offer and acceptance. To constitute a binding contract, there must be a meeting of the minds of the parties. — Thurston v. Thornton, 14. A document signed by the owner of prop- erty purporting to be an agreement to sell at a fixed price, with a postscript, "This offer to be left over until Friday, 9 a. m.," is only an offer. — Dickinson v. Dodds, 77. <§ 2. Effect of acceptance. A contract is obligatory from the moment the minds of the parties meet, signified by overt acts, though such occurence is not known to buth parties at the time. — Mactier's Adm'r v. Frith, 38. Acceptance of an offer to sell constitutes a contract for sale only from time of accept- ance. — Dickinson v. Dodd, 77. § 3. Necessity of communication — Offer. One receiving a ticket on deposit of goods, in which the liability of the bailee is limited, ia under no obligation to read the condition. — Parker v. Southeastern Ry. Co., 18. § 4. -^— Acceptance. Plaintiff, a builder, received a note stating- that upon an agreement to finish worlc in cer- tain time he might commence at once, to which he did not reply, but purchased lumber for the work, and commenced to prepare it. Held no acceptance. — White v. Corlies, 16. § 5. Manner of communication. Communication of acceptance of an offer sent to a different place than that directed in the offer does not bind the party making the offer. — Eliason v. Henshaw, 24. § 6. Communication by conduct. One not a subscriber, who takes a newspaper directed to him from the postoflicc, and pays postage thereon, and continues doing so after demand of the subscription price, is liable there- for. — Fogg V. Portsmouth Atheneum, 26. One who made no objection to work which he had reason to know was being done in ex- pectation that he would pay for it, is liable therefor.— Day v. Caton, 28. Plaintiff, seeking to establish a renewal of his policy, called a clerk of his agent as a wit- ness, who testified that lie asked defendant's agent to bind or renew the policy in question; that he received no reply, and the agent did nothing indicating either that he heard or in- tended to comply with the request. Held, that no inference could be drawn from such silence to imi]ose a contractual ofilitrntion on defendant. —Royal Ins. Co. v. Reutty, 29. INDEX. 635 8 7. Communication by correspondence. ' A contract is accepted by the posting of a letter declaring its acceptance. — Duolop v. Hig- gins, 31. Posting an answer to a letter containing an offer on the day of receiving the oiler is suffi- cient. — Dunlop V. Higgins, 31. Acceptance, by letter, of an offer made by letter before retraction, completes the contract, although the acceptance does not reach its des- tination until after death of acceptor.— Mac- tier's Adui'r V. Frith, 38. A company allotted shares to defendant for which he had applied, and addressed to him, and posted a notice of the allotment, but which he never received. //(■/(/, that he was a share- holder. — Ilouseliuld Fire & Carriage Ace. Ins. Co. V. Grant, 58. An offer by letter, requesting an answer by telegraph, and stating that, unless received by a certain date, the answer would be considered a refusal, is made dependent upon actual re- ceipt of the telegram before such date. — Lewis v. Browning, G2. A contract made by telegraph is completed when an acceptance of the proposition is de- posited for transmission in the telegraph office. — Minnesota Linseed Oil Co. v. Collier White Lead Co., 87. § 8. General offer. An advertisement offered to pay a certain sum to any one contracting influenza after using a certain remedy. IJchl, that one pur- chasing the remedy on faith of such advertise- ment, and using it, who contracted the disease afterwards, may recover the sum offered. — Carlill v. Carbolic Smoke Ball Co., 67. § 9. Character of acceptance. Whatever amounts to a manifestation of de- termination to accept an offer, c(juiniuuicated, or put in a i)roper way to be communicated, to the other party, is an acceptance. — Mactier's Adm'r t. Frith, 38. Where one is to decide on the happening of a certain event, whether he will accept an offer or not, happening of the event docs not complete the contract until the decision is made. — Mactier's Adm'r v. Frith, 38. A conditional acceptance of a proposition by letter does not constitute a contract. — Harris V. Scott, 03. Defendants wrote plaintiff offering to sell a quantity of powder of different grades at a unifurm price, but reserving to themselves the right to retain 1,500 pounds thereof, and also certain caps and fuse, ending the letter say- ing: "Should you decide to order these goods, you may give us indorsed note that we can use as cash, * * *" etc. Plaintiff replied : "* * * I will take 7.200 lbs. of the powder, leaving you the 1.500 lbs. in reserve, os you wish, * * * and on receipt of invoice will forward indorsed note. etc. You are too high on caps and fuse." Held, that there was no valid contract. — Thomas v. Greenwood, G5. § 10. Revocation of offer or acceptance. Revocation of offer under seal, see "Contracts under Seal," § 2. A bidder at an auction may retract his bid any time before the hammer is down. — Paine v. Cave, 74. An offer to sell land at a certain price if taken within 30 days is a continuing offer, ac- ceptance of which within the time limited and before retraction constitutes a valid contract. —Boston & M. R. R. v. Bartlett, 75. Formal notice of withdrawal of an offer be- fore acceptance need not be given. Knowledge by one to whom the offer is made of acts incon- sistent with a coutinuame of the offer is suffi- cient. — Dickinson v. Dodds, 77. Sale ul" property to a third person amounts to withdrawal of the offer, even though the party to whom the offer was first made had no knowledge of it. — Dickinson v. Dodds, 77. Sale of property to a third person, which came to the knowledge of the person to whom an offer was made, is an effectual withdrawal of the offer.— Dickinson v. Dodds, 77. Though the extension of an option for the sale of land is not binding when unsupported b\ a licw consideration, the acceptance thereof, and tender of the price within the time named, constitutes a valid contract of sale. — Ide v. Leiser, S2. § 11. Lapse of offer. Acceptance of an offer after the expiration of the time to which it is limited will not be binding. — Longworth v. Mitchell, 85. Where the market in certain goods is subject to sudden and great fluctuations, an accept- ance of a proposition by telegraph, after a delay of 24 hours, is not within a reasonable time. — Minnesota Linseed Oil Co. v. Collier White Lead Co., 87. Where one has refused to accept an offer, but has made an offer himself, which has been refused, he cannot revive the first offer by afterwards accepting it. — Hyde v. Wrench, 89. An offer in writing to subscribe to the capital stock of a railroad company, conditioned upon the construction of its line of road along a , designated route, is revocable, at the option of the party making such offer, at any time be- fore its delivery to and acceptance by such company ; and his death before such delivery antl acceptance works such revocation. — Wal- lace v. Townsend, 90. § 12. Contractual intention. In an action by a cousin for services as housekeeper it must appear that when the ser- vices were rendered both parties expected that they should be paid for. — Heffron v. Brown, 95. Letters which the parties intend only as pre- liminary negotiations, or as mere advercise- meuts or business circulars, should not be con- strued as a contract. — Moulton v. Kershaw, 99. Where the written draft of a contract is viewed as the consummation of the negotia- tions, there is no contract until it is finally signed. — Mississippi &: Dominion S. S. Co. v. Swift. 101. OFFICERS. Assignment of future salary, see "Injury to Public Service." OPINION. As fraudulent representation, see "Fraud," $ 5. PARENT AND CHILD. See "Implied Contracts." PAROL AGREEMENT. See "Statute of Frauds." G36 INDEX. PARTIAL INVALIDITY. Of contract of employment, see "Master and Servant." Of mortgage, see "Mortgages." PARTIES. Construction as to parties, see "Construc- tion," § 2. An action cannot be maintained against one of three joint obligors, on allegation that the other two have paid their share.— Eller v. Lacy, 549. An agreement by which "plaintiffs are to pay" is a joint obligation. — Eller v. Lacy, 549. Where a sale is made by two joint owners, and the purchaser afterwards pays one of them his full share of the purchase money, the other cannot maintain an action in his own name for the balance, unless all parties have agreed to a severance of the joint contract, and the purchaser has made him a new promise. — An- gus V. Robinson, 551. PAST CONSIDERATION. See "Consideration," § 9. PAYMENT. Part payment as consideration for release, see "Consideration," § 8. A forged note or bill, which proves to be of no value, given in payment of goods, does not extinguish the debt.— Markle v. Hatfield, 571. The acceptance by a creditor of the note of a third person, which he credits on an open account existing between him and the debtor, is not such evidence of payment as to prevent the creditor from suing on the account. — Chel- tenham Stone & Gravel Co. v. Gates Iron Co., 573. PENALTIES. Penalty or liquidated damages, see "Damages." PERFORMANCE OR BREACH. See "Payment." Part performance under statute of frauds, see "Statute of Frauds," § 10. § 1. Tender. An agreement that directions shall be left by will or otherwise, whereby the survivor should have a prior right to purchase certain shares of stock, is fully complied with by the adminis- tratrix by an offer at the price for which they were finally sold, which was rejected. — Harris v. Scott, 63. Where a note is payable in specific articles, tender of such articles at the time and place specitiecl satisfies the contract. — Lamb v. La- throp, 575. Where a note is payable in specific articles, the promisor must tender such articles at the amount agreed to be paid. — Lamb v. La- throp, 575. % 2. Conditions precedent. A party who has refused to fulfill his part of an agreement cannot maintain an action for damages against the other party. — Dey v. Dox, 59S. Under a contract providing that one install- ment of the purchase money of land should be paid before and one after delivery of the deed, such delivery was a condition precedent to recovery of the second installment. — Grant T. Johnson, 601. In a mercantile contract, a statement descrip- tive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty or condition precedent, upon the failure or non- perlormauce of which the party aggrieved may repudiate the whole contract. — Norrington v. Wright, 604. Plaintiff contracted to sell his stock of goods and his two stores and lots to defendants. Both goods and land were sold at the same time, and embraced in the same contract ; but they were treated as distinct subjects of sale, the price of each being definitely fixed. Held, that the contract was divisible, and that an avoid- ance of the contract by plaintiff as to the laud did not avoid the conti'act as to the stock of goods.— Wooten v. Walters, 610. Plaintiff agreed to work for defendant one year, and defendant to pay him therefor a certain sum. During the year plaintiff lost time to the amount of nine days, but defendant allowed him to resume work without objec- tion, and he continued at work until the ex- piration of a year from the original hiring. Held, that allowing plaintiff to continue work, after the loss of time, without objection, was a waiver of any right of forfeiture defendant might have therefor, and plaintiff was not bound, after the expiration of the year, and in the absence of special agreement, to make up the lost time.— Bast v. Byrne, 613. § 3. Conditions subsequent. A sale of personal property on condition that the vendee may return it in a specified time becomes absolute if the vendee impairs its value by misuse during that time. — Kay v. Thomp- son, 577. § 4. Concurrent conditions. Under a contract for the sale of corn, de- livery of the corn and payment of the price are concurrent acts, to be done by the parties at the same time. — Morton v. Lamb, 594. § 5. Renunciation. Where one party to a contract violates some of its substantial provisions, so as to deprive the other party of the benefits of the contract, and manifests an intention to continue such breaches, the other party may abandon further performance of the contract, and sue for future ]>rotits. although sueli breaches did not amount to a physical obstruction or prevention of per- formance by such other party. — Lake Shore & M. S. Ry. Co. v. Richards, 578. The right to do so is not lost by a previous suit for damages for breach of the conti'act, where the breaches of the contract continue after the bringing of such suit.— Lake Shore & M. S. Ry. Co. V. Richards, 578. § 6. Impossibility caused by party. Where defendant conveyed land to another, which he had promised to convey to plaintiff', plaintiff need not tender him the purchase price.— Newcomb v. Brackett, 592. § 7. Deatb of party. Death of the employer before expiration of the stipulated term of service of a clerk and salesman excuses further performance of the contract.— Yerrington v. Greene, 618. INDEX. 637 § 8. Destruction of subject-matter. Under a contract to erect a building for a cer- tain entire price, payable in installments, where the building is destroyed before comple- tion, the owner may recover the installments paid. — Superintendent and Trustees of Public Schools of Trenton v. Bennett, 015. Under a contract to erect a complete build- ing the loss falls on the contractor if the building falls before completion by reason of a latent defect in the soil. — 8ui)erintendent and Trustees of Public Schools of Trenton v. Ben- nett, 615. PLEADING. A complaint alleging that defendants are in- debted to plaintiff in the sum of i$:i.()i)0 for damages by reason of their failure to sliip cer- tain goods bought of Ihem, is iiisuilic ient, as there is no consideration stated for the alleged agreement, and as it docs not allege promi.se to pay any amount for which defendants were indebted to plaintiff, nor any promise by de- fendants to ship, nor tender of payment or per- formance by plaintiff', and fails to allege a valid contract of any kind. — Thomas v. Green- wood, 05. A complaint praying specific performance of a contract for the sale of land need not allege that plaintiff has no adequate remedy in dam- ages, nor that defendant is the owner of the land when the action is brought, wliere it does allogo that ho was such owner when he made the offer, and the complaint was tiled on the day when plaintiff accepted it. — Ide v. Leiser, 82. In an action on a joint and several bastardy bond, a joint plea of duress of unlawful im- I)ris()nniont of one dofeiidant is had where the relationshin. such as father, son, etc., is not averred in the plea. — Township of Bordertown v. Wallace, 281. A complaint in an action for damages, al- I leging that defendant, in order to induce plain- tiff to lease from him certain premises, fraud- ulently concealed the fact that a certain build- ing thereon did not belong to him, but which fails to allege that defendant knew or had reason to know that plaintiff was ignorant of the fact that defendant did not own such build- ing, and that the leasing of the premises by plaintiff was actually induced by such conceal- ment, is demurrable for failure to state a cause of action. — Sheldon v. Davidson, 382. In an action on the case by the seller of property for fraudulent representations and contealmont by the purchaser in regard to its value, the price paid was set forth in the declaration less than it was proved on trial to have actually been. Ildd to be no variance. — Mallory v. Leach, 390. A complaint seeking to set aside a ffaud- ulent conveyance to satisfy a judgment, which mei-ely alleges the recovery of judirment against defendant, without stating any facts to show the character and validity thereof, is insuffi- cient. — Eller V. Lacy, 549. An action setting up a judgment must state the amount and character and validity of the judgment sued on. — Eller v. Lacy, 549. I PUBLIC POLICY. See "Breach of Trust"; "Monopolies"; "Re- straint of Marriage"; "Restraint of Trade." Limitation of carrier's liability for negligence, see "Carriers." Right of sheriff to reward, see "Rewards." Where owners of corporate stock agree to vote only for certain officers as directors, and that in case the salary of one is increased tliat of the other should also be increased, the con- tract is void as against public policy.— Harris v. Scott, 03. QUANTUM MERUIT. Recovery by servant under contract invalid in part, see "Master and Servant." QUASI CONTRACTS. See "Constructive Contracts"; "Implied Con- tracts." PRINCIPAL AND AGENT. Husband for wife, see "Married Women. PROPERTY. Duress of property, see "Duress," { 2. RATIFICATION. By infant, see "Infants," § 3. Of contract made for corporation, see "Cor- I)orations." RESCISSION AND ABANDONMENT. Rescission for fraud, see "Fraud," § 0. A decree rescinding a deed from a ward to her guardian need not require the refunding of the consideration when the guardian is in- debted to the ward to a greater amount.— McParland v. Larkin, 406. On rescinding a deed made by a ward to her guardian, the ward's estate should not be char- ged with improvements made by the guardian M-ithout the ward's authority.— McParland v Larkin, 400. A party to a contract prohibited by law, but not malum in se, may, while it rem'ains exec- utory, rescind it, and recover money advanced by him to the other party, who had performed no part of it.— Congress »fc Empire Spring Co. V. Kuowlton, 513. In an action on a contract for the sale and future delivery of brick by defendant to plain- tiffs, it appeared that after the contract was made plaintiff's became insolvent, and made a voluntary assignment, of which they gave no- tice to defendant, and afterwards compounded with their creditors. No reference was made to the contract in the schedule tiled, nor in the statement of assets made by plaintiff's to their creditors. Plaintiffs knew that the brick were to be made in Maine, but gave no notice to defendant that they would claim performance of the contract, and made no offer to pay or secure defendant till more than four months after the assignment, and after defendant had sold the brick. IJdd, that the question of abandonment of the contract by iilaintiffs and acceptance by defendant should have been sub- mitted to the jury. — Uobbs v. Columbia Falls Brick Co., 500. Abandonment of an executory contract by plaintiffs, and acceptance thereof by defendant. Constitute a defense to an action on such con- tract.— Hobbs V. Columbia Falls Brick Co., 500. REFORMATION. A contract will not be reformed which must be construed and carried into effect before 638 INDEX. reformation exactly as it would be after it has been reformed.— Kue v. Mens, 249. RENUNCIATION. Operating as discharge, see "Performance or Breach," § 5. RESTRAINT OF MARRIAGE. An agreement by defendant to pay plaintiff a certain sum if he should marry any other person than plaintiff is void.— Lowe v. Peers, 454. RESTRAINT OF TRADE. See "Monopolies." Agreement within statute, see "Statute of Frauds," § 7. A conti-act by defendant not to teach the French or German language, nor aid or ad- vertise to teach them, nor to be connected with any person or institution teaching them, in the state of FJiode Island, for a year after leavmg complainant's employ, is not void on the ground of public policy, simply because it applies to the entire state.— Herreshoff v. Boutineau, 4o8. But where complainant offers to allow de- fendant to teach at a place in the state other than that at which complainant's school is established, and does not aver that such teach- ing would injure him, the fact that the con- tract applies to the entire state renders it un- reasonable.— Herreshoff V. Boutineau, 458. A contract made by a seller with the pur- chaser, that he will not, at any time withm 99 years, directly or indirectly engage in the manufacture or sale of friction matches, ex- cepting in the capacity of agent or employe of said purchaser, within any of the several states of the United States of America, or the terri- tories thereof, or within the Disti'ict of Co- lumbia, excepting and reserving, however, the right to manufacture and sell friction matches in the state of Nevada and in the territory of Montana, is not void as a covenant in restraint of trade.— Diamond Match Co. v. Roeber, 4G1. An agreement not to engage in a certain busi- ness in a certain place is not invalid because not specifying any limit of time.— Carll v. Sny- der, 40."). Defendant, who owned a factory for the man- ufacture of a certain kind of cheese, desig- nated by a certain name, sold it, together with the secret of the manufacture, to plaintiffs, and covenanted that neither she, nor her hus- band, her father, nor her brother-in-law, who had all assisted her in running the factory, would impart the secret to any other person than plaintiffs, nor engage in the business of manufacturing or selling such cheeses. Udd, that the covenant is not void as in restraint of trade.— Tode v. Gross, 467. REVOCATION. In- DisalBrmance of infant's contract, see fants," § 4. ,,^^ , ^ Of offer or acceptance, see "Offer and Accept ance," § 10. o , , under seal, see "Contracts under Seal, § 2. Of subscription, see "Subscriptions." REWARDS. Since it is the duty of a sheriff to make ar- rests, he cannot claim a reward offered there- for. — Stamper v. Temple, 93. To entitle a party to a reward for an arrest, there must be an oi'fcr clearly intended as such, and knowledge of the offer by the other party at the time of the arrest.— Stamper v. Temple, 93. SALES. See "Intoxicating Liquors." On Sunday, see '"Sunday." Rescission for mistake, see "Mistake," § 2. Sale to third person as withdrawal of offer, see "Offer and Acceptance," § 10. Within statute of frauds, see "Statute of Frauds," § 8. A vendor may recover for goods sold, al- though he knew they were bought for an illegal purpose, where it was not part of the contract, that they should be so used, and he has done nothing else in aid of it.— Tracy v. Talmag«, 497; State of Indiana v. Leavitt, Id. SEDUCTION. Consideration for marriage, see "Breach of Marriage Promise." SEPARATE ESTATE. See "Married Women." SHERIFFS. Right to reward, see "Rewards." SIGNATURE. Of memorandum, see "Statute of Frauds," § 9. SLANDER. Agreement to publish libelous matter, see "Li- bel and Slander." SPECIFIC PERFORIVIANCE. See "Pleading." STATUTE OF FRAUDS. § 1. InstTuments under statutes. An undertaking required by statute to give a right of appeal containing the requisite stipu- lation is valid, though it do*s not express a consideration, and is^not under seal.— Thomp- son v Blanchard, 115. Instruments created under and deriving their obligation from special statutes need not ex- press consideration.— Thompson v. Blanchard, 115. § 2. Executed contracts. A contract for services not to be performed within a year, but which has been fully per- formed on both sides, cannot be avoided be- cause not in writing.— Stone v. Dennison, 110. § 3. Promise by executor or administra- tor. The oral agreement of an executor to pay one of the testator's heirs at law a certain sum in consideration that he would forbear further opposition to the probate of the will is an origi- nal agreement, not within the statute; and the consideration is sufficient.— Bellows v. Sowles, lis. INDEX. 63f) § 4. Promise to ansiver for debt of an- other. An agiec'iiiL'iit by one person to pay for goods fiirnisht'd to another is not a collateral promise to pay the debt or answer the default of an- other, within the nieaniug of the statute of frauds. — Larson v. Jenson, 120. Whore an agent, having, contrary to instruc- tions of his principal, loaned money without security, and taken a note therefor, and, on being told by the principal that he will hold him responsible, guaranties the payment of the note, the guaranty is nut a promise to answer for the debt of another, within the statute of frauds, so as to be void for failure to express the consideration. — Crane v. Wheeler, 122. A parol promise to pay the debt of another in consideration of property placed by the debt- or in the i)rc)misor's hands is an original prom- ise, and binding upon the promisor, whether the liability of the original debtor continues or is discharged. — Wait v. Wait's Ex'r, 123. Testator, in consideration of the conveyance of a farm to him, upon which plaintiff, at the request of testator's grantor, had erected a barn, promised to pay plaintiff the cost of said barn. UiIJ, that this promise, being made upon a new consideration, was binding, though it was not in writing, and though the original liability of the grantor remained undischarged. —Wait V. Wait's Ex'r, 123. One having a lien on property for repairs, who delivers it to the owner on the orarl prom- ise of a third party to pay for the repairs, cannot enforce the promise. — Mallory v. Gil- lett, 124. § 5. Agreements in consideration of marriage. An antenuptial contract, by which each party is to retain the title of his or her property, and dispose of it as if unmarried, is a contract in consideration of marriage, within the stat- ute of frauds (Gen. St. c. 22, § 1), and must be in writing. — Mallorv's Adm'r v. Mallory's Adm'r, 138. S 6. Agreements relating to land. A person sold land, representing it to have a certain frontage. The buyer paid for the land, but, finding it to have a less frontage, refused to accept a deed. The seller then agreed, if he would accept the deed, to repay the difference in value between the actual land and the land as represented. II dd not an agreement for the sale of land, or of an interest in or concerning it, necessary to be in writing. — Haviland v. Sammis, 139. A license to enter on lands of another to do a particular act or series of acts, without possessing an interest in the lands, need not be in writing. — Mum ford v. Whitney, 140. A parol agreement that a party may abut and erect a dam for a i)ernianent purpose on lands of another is void. — Mumford v. Whit- ney, 140. An agreement for the sale of growing trees, with a right to enter and remove them, must be in writing. — Green v. Armstrong, 145. A sale of standing timber, whether or not the parties contemidate its immediate severance and removal by the vendee, is a contract con- cerning an interest in lands, within the mean- ing of the statute of frauds.— llirth v. Graham, 147. A parol agreement by a mortgagee to fore- close his mortgage, bid in the land, and hold it until it could be sold for its value, and, when sold, to pay the mortgagor the balance over the mortgage, cannot be enforced. — Wheeler v. IleynolJs, 208. A parol agreement in reference to lands, not authorized by the statute of frauds, is void as well in equity as in law. — Wheeler v. Reynolds, 208. A parol agreement subsequent to a deed of land that the land should be surveyed, and any excess over what the deed called for should be paid for at a certain price, is valid. — Seward V. Mitchell, 233. § 7. Agreements not to be performed within a year. A promise to save a co-surety harmless may be performed within a year, and need not be in writing. — Blake v. Cole, 140. An agreement not to engage in a certain busi- ness at a particular place for a specified num- ber of years is not within the statute of frauds. — Doyle V. Dixon, 150. A contract to serve for one year, service to commence the second day after the contract was made, is within the statute of frauds. — Britain v. Rossiter, 213. § 8. Sale of goods. A contract for the sale of promissory notes is within the statute of frauds. — Baldwin v. Williams, 151, An executory agreement for the manufacture and sale of a specific chattel to be manufac- tured according to the terms of the agreement is not a contract of sale. — Goddard v. Binney, 153. Defendants purchased lumber, pointed out the piles from which it was to be taken, and directed that when it was dressed and cut it should be placed on plaintiff's dock and notice given, which was done. Ilcld, that there was no acceptance and receipt of the lumber. — Cooke v. Millard, 155. Where a chattel verbally contracted for is in existence, but the vendor is to do some work on it to adapt it to the uses of the vendee, it is a contract of sale under the statute. — Cooke V. Millard, 155. Defendants ordered from plaintiffs' salesman a bill of boots and shoes, to be manufactured by plaintiffs. The salesman made a copy of the order, signed it himself, and gave it to defendants. Before the order was shiitped, it was countermanded by defendants. IJiUI, that the contract was for the sale of "goods," with- in the meaning of Rev. St. 1S79, § 2514, pro- viding that "no contract for the sale of goods," etc.. "for the price of $30 or upwards, shall be good, unless some note or memorandum thereof be made in writing, and sisned bv the party to be charged."— Pratt v. Miller, 163. There must be a receipt and acceptance of the goods by the vendee in a parol contract to bind him, where no part of the imrchase price is paid. — Caulkins v. Hellman. 100. A purchaser's receipt and acceptance of goods sufficient to satisfy the statute of frauds may be constructive. — Garfield t. Paris, 168. Receipt and acceptance of labels, furnished as part of n parol contract for the sale of liq- uor, satisfies the statute of frauds. — Garfield V. Paris, lOS. A contract for the sale of goods, which is void for failure to pay some part of the con- sideration as required by the statute of frauds, cannot be validated by an unaccepted ofifer of payment. — Edgerton v. Hodge, 172. Subsequent payment by check, on a contract void under the statute of frauds, and a re- statement of its essential terms, validates the contract. — Hunter v. Wetsell, 174. G40 INDEX. § 9. Tlie memorandum in 'writing. An option to sell laud at au agreed price, a consideration for the option bciuj; stated, is a surSeient compliance ^vith the Montana stat- ute of frauds (.Comp. St. div. 5, p. G52, § 2111), which only requires that the memorandum of sale shall be signed by the seller. — Ide v. Leiser, S2. On the 30th of June, A. bargained with B. for his cheese, amounting to over $40, but nothing was done to bind the bargain. The nest day B. wrote to A., "I shall stand to it"' (alluding to the contract), "but shall want you to pay me fifty dollars to bind it." The day following (July 2d) A. inclosed ifoO in a letter, and sent it by mail to B., which he re- ceived on the Sth, and immediately returned it to A. Held, that B. had a right to decline to receive the money, and by so doing left the contract void under the statute of frauds. — Edgerton v. Hodge, 172. Where parties in making a contract omit to do what the statute of frauds requires to be done to make a valid contract, it requires the cons(|nt of both parties to supply the thing orsiitted. — Edgerton v. Hodge, 172. A paper stating the terms of the contract, signed by the party to be charged, and di- rected to a third person, may be deemed part of a sufficient memorandum, though not at the time known to the other party. — Peabody v. Speyers, 176. A writing signed by defendant, directed to a bank cashier, to the effect that he would pay plaintiff a certain amount in currency for a certain sum in gold, and one by plaintiff that he would accept such currency for gold, is a sufficient memorandum. — Peabody v. Speyers, 176. A verbal order for goods given to plaintiff's traveling salesman, entered in his memorandum book, and signed by him, a copy of which was forwarded to plaintiff, together with a letter written by defendant to plaintiff, countermand- ing the order, is a sufficient memorandum. — Louisville Asphalt Varnish Co. v. Lorick, 178. A memorandum of a sale, which neither names nor describes the sellers, is not sufficient to satisfy the statute of frauds. — McGovern v. Hern, 183. A memorandum of a contract for services, not containing the condition on which defend- ants were to pay and the subject-matter of the agreement, is insufficient. — Drake v. Seaman, 184. An agreement signed by the vendor to de- liver certain articles to the vendee at a speci- fied price, cash on delivery, is a sufficient memorandum, and binds the vendor, although not signed by the vendee. — Justice v. Lang, 187. A contract in writing for services for a term exceeding one year, at a stipulated salary, signed by the employer only, and containing no promise on the part of the employe to pei'l'orm such services, is void, and the employe cannot recover if discharged before the expiration of the term. — Wilkinson v. Heavenrich, 199. A memorandum written by a broker em- ployed to make the purchase in his book in presence of the vendor, containing the names of the parties and terms of purcha.se, but not subscribed by the parties, is sufficient.— Clason V. Bailey, 201. A letter from the vendor, confirming to the purchaser a sale of personal proiierty at a cer- tain price per pound, and inclosing an order on its keeper for delivery and weighing, is a suf- ficient memorandum. — Sherwood v. Walker. 370. § 10. Effect of noncompliance \iritli stat- ute. The statute of frauds affects the remedy only» and not the validity of a contract. — Townsend v. Hargraves, 205. Where there is a completed oral contract of sale of goods, acceptance and receipt of part of them takes the case out of the statute, al- though after the destruction of the rest of the goods while in the hands of the seller. — Towns- end V. Hargraves, 205. Where, in reliance on parol agreement with- in the statute of frauds, one party has so far partly performed that it would be a fraud on him unless performed, the agreement will be enforced. — Wheeler v. Reynolds, 208. Plaintiff, one of several lessees of land for ten years, made an oral contract to transfer to defendant, an outsider, his interest in the lease for the remaining four years of the term, de- fendant agreeing to stand in plaintiff's stead and pay his share of the rent. Defendant oc- cupied and paid the rent for the year, and abandoned his portion of the land. Uchl, in an action to recover the rent for the remainder of the term which plaintiff was compelled to pay, that the contract was invalid under the stat- ute of frauds, and the equitable doctrine of part performance was inapplicable, the action being at law. — Nally v. Reading, 212. A contract not enforceable by reason of the statute of frauds is an existing contract, and not void, and a new contract cannot be im- plied from acts done under it. — Britain v. Ros- siter, 213. The doctrine of part performance making a contract not in accordance with the statute of frauds enforceable in equity applies only to contracts relating to land. — Britain v. Rossiter, 213. The mother of deceased attempted by writing to bind him, then 20 years of age, as appren- tice to defendants, for 5 years, for a stipulated sum; $200 to be retained by defendants from the wages as a penalty if deceased left for any cause. The contract was not signed by de- fendants. Deceased remained with them after coming of age, until killed by accident. Ileld, that the contract was void, under the statute of frauds; but as deceased continued to work after coming of age, with knowledge of the terms, he would be bound to that rate of com- pensation, but the forfeiture could not be en- forced. — Baker v. Lauterback, 218. STATUTES. Contracts in violation of statutes, see "Intoxi- cating Liquors"; "Sunday"; "Usury." SUBSCRIPTIONS. As consideration for other subscriptions, see "Consideration," § 3. Until some action is taken on the basis of a subscription to a benevolent or other enterprise, it may be revoked. — Wallace v. Townsend, 90. Where decedent signed a church subscrip- tion, the fact that the trustees made efforts to secure other subscriptions in order to fulfill the conditions on which the liability of the sub- scribers deiiended, but merely as individuals, and not because of any request by the dece- dent, constituted no consideration for his promise. — I'resbyterian Church v. Cooper, 234. Where defendant's intestate signed a sub- scription paper by which the signers agreed to pay to the trustees of plaintiff" church the INDEX. G41 amounts set opposite thoir names on condition that a certain flxed sum was subscribed, the fact that otli'-r pcr.son.s signed sucli subsorii)- tion on the laith of the siKnalure of the de- cedent constituted no consideration for tlie promise of the latter, as between him and the payee. — Presbyterian Church v. Cooper, 234. SUFFICIENCY. Of consideration, see "Consideration," § 2. Of memorandum within statute of frauds, see "Statute of Frauds," § 9. SUNDAY. A sale or exchange of horses, attended with the circumstances Avhich usually attoud those i'xchiuif,'es, is a secular labor or euiploymout, within the meaiiinj: of the statute for the ob- servance of the Sabbath. — Lyon v. Strong, 417. No action can be maintained on a warranty made on the sale or exohango of horses on Sunday.— Lyon v. Strong, 417. The court will not enforce a contract made on the Sabbath. — Lyon v. Strong, 417. TELEGRAMS. Acceptance by telegram, see "Offer and Ac- ceptance," § 7. TENDER. see "Perform THEATERS. Of performance, see "Performance or Breach," § 1. An actor may recover for his services in an unlicensed theatrical exhibition, unless he knew that his employer had no license. — Koys v. Johnson, 41)6. TIME. Disaffirmance of contract by infant, see "In- fants," § 4. Of acceptance, see "Offer and Acceptance," § 11. TREES. Parol sale of growing trees, see "Statute of Frauds," § 6. TRUSTS Where an uncle, who is indebted to his nephew for money due on the lattcr's tweiity- first birthday, writes the' nephew that he had the money in bank that he intended for him, and that the latter should certainly have it, adding that he would not interfere with the money until he thouirht the nephew capable of taking care of it, the relation of the parties Hopk.Sel.Qis.Cont.— 41 is thereby changed from debtor and creditor to trustee and beneficiary.— iiamer v. Sidway, 220. UNDUE INFLUENCE. The fact that one of the parties to a contract is old, and relies u[)on and is the grandfather and employer of the other, does not raise a prcsuuiiition of undue influence. — Cowee v. Cornell, 402. Where a female ward, a few days after at- taining her majority, and before her guardian has made his final report, conveys her land to the guardian's wife, who is her elder sister, and with whom she is living, the burden is on the guardian to show good faith and the ab- sence of undue influence. — McParland v. Lar- kin, 40(j. Where a conveyance of land was obtained in exchange for property of about half its value by taking advantage of the grantor's ignorance and unfounded apprehensions that if he did not convey it would be taken on a ju(l||pent, the transaction was held to be unconscionable, and the conveyance was set aside. — Wooley v. Drew, 410. UNITED STATES. The United States may, within the^ sphere of its constitutional powers, enter into'- a con- tract not prohibited by law, and appropriate to the exercise of such powers. — United States v. Tingey, 27G. USURY. A deed granting a rent_ charge of $500 per year in consideration of $5,000, with an option in the grantor to obtain a release of the rent charge after five years by paying $.">.000 and arrears of rent, held usurious and void. — Lloyd V. Scott, 421. VENDOR AND PURCHASER. Agreements relating to land, see "Statute of Frauds," § 6. Offer under seal, see "Contracts under Seal," § 2. WAGER. See "Gaming." WARRANTY. Implied warranty, see "Implied Contracts." WITHDRAWAL. Of offer or acceptance, see "Offer and Accept ance," § 10. YEAR. Agreements not to be performed within a yem see "Statute of Frauds," § 7. WEST PUBLISniNU CO.. PJUNTEBii ASD STEKEOTYPERB, 8T. PAUL, U1.V'N. LOS ANGELES COONTY LAW LIBRARY ¥TMTin7 "^sss. . ''SSSSfib'