A. TREA.TISE ON a?H:E LATV OF EXTRAORDINARY, INDUSTRIAL AND INTERSTATE CONTRACTS DARIUS H. PINGREY, LL. E> . Author of " The Law of Suretyship and Guaranty," etc., and Professor in the Illinois Wesleyan University College of Law, ALBANY, N. Y. MATTHEW BENDER AND COMPANY. 1905. COPYBIGHT, 1905. By DARIUS H. PINGREY. T PREFA.CE. The advancement of material progress has developed con- tractual relations of vast and complicated nature. In treating of Extraordinary, Industrial and Interstate Contracts, it has been found necessary to investigate within circumscribed limits the police power of the State with reference to contracts, the prohibition by Congress of all contracts in restraint of inter- state and foreign trade, whether reasonable or unreasonable, the contracts of industrial combinations, the violation of the obli- gation of contracts, contracts arising in the board of trade trans- actions, the contractual relations arising from trades unions and other relative rights. While the industrial combinations, such as corporate merger, pooling of railroad income and re- bates have been considered, yet the right to contract by indi- viduals has received due investigation. Many works on contracts now before the public are classics, but they do not treat the subjects of contract of paramount importance to the welfare of the people. So, to meet this demand, among other things of vital interest, it has been the endeavor to present the industrial side of this all-important subject. In developing this work it was found that interstate contracts, of necessity, must be discussed; so it was deemed advisable to review concisely interstate contracts. The author has also cited the leading articles on like ques- tions found in the legal magazines, to illustrate the views of jurists on controverted points. The author takes this opportunity to thank the profession, both lawyers and judges, for the cordial reception of his former works, and hopes that this treatise will be received in the same friendly spirit. DARIUS H. PINGREY. Bloomington, 111., Eeb. 1, 1905. /oS'^^SO Ti^BLE OF CONTENTS. PART I. Freedom of Contract. CHAPTER I. Right to Contract. Section. Abticle I. The basis of all contracts of a party sui juris 1-4 CHAPTER II. Insane PEUriONs. Article I. Capacity to contract 5-20 II. Ratification and disaffirmance 21-25 CHAPTER III. Infants. Article I. Capacity to contract 26-50 II. Ratification of voidable contract 51-56 III. Disaffirmance of voidable contracts 57-66 IV. Estoppel of infant by his deceit 67-71 V. Guardian's right to contract 72-75 CHAPTER IV. Contracts Reqxhred to be in Writing — Statute of Frauds. Article I. The statute — Sections four and seventeen 76-78 II. Contracts not within section four 79-82 III. Sufficiency of memorandum 83-99 IV. Remedies on the contract 100-116 V. Promises by executor and administrator 117-121 VI. Promise ' to answer for another's debt, default or miscarriage 122-132 VII. Agreement not to be performed within a year 133-137 VIII. Agreement within section seventeen 138-156 IX. Representations as to credit 157-160 TABLE OF CONTENTS. PART 11. Contracts in Violation of Law. CHAPTER V. Agreements in Violation of the Common Law. Section. Abticle I. Illegal contracts 161-1G9 II. Insolvency 170-172 CHAPTER VI. Agreement in Violation of Statute. Abticle I. Violation in general 173-179 II. Violation of Sunday laws 180-195 III. Statutes regulating trade and professions 196-205 IV. Usurious contracts 206-243 CHAPTER VII. Wagers and Gaming Contracts. Abticle I. Wagers in general 244-247 II. Board of Trade dealings 248-257 III. Rights under gambling contracts 258-265 rV. Insurance contracts 266-269 V. Lottery dealings 270-273 PART III. Contracts Against Public Policy. CHAPTER VIII. What is Public Policy. Abticle I. The general doctrine 274-278 11. Contracts for office and for influencing official conduct, 279-287 CHAPTER IX. Limiting Liability fob Negligence. Abticle I. Liability as to carriage 288-291 II. Limitation by notice on ticket 292-295 III. As to telegraph and telephone companies 296-298 IV. Limiting master's liability 299-300 CHAPTER X. Obligations of Quasi-Public Corpobations. Article I. Disabling contracts of corporations owing a duty to the public 301-303 TL Discriminations 304-308 vi TABLE OF CONTENTS. CHAPTER XI. Restraint of Trade. Sectioit. Abticlb I. Contracts in restraint of trade 309-315 II. Nature of the transactions 316-319 CHAPTER XII. Industrial Combinations. Article I. Unlawful combinations and corporate trusts 320-322 II. Pooling and merger of railroad business 323 327 III. As to patent rights 328-329 IV. Parties in pari delicto 330-332 CHAPTER XIII. Trades Unions. Abticle I. General statement 333-334 II. Contractual relations 335-338 PART IV. Operation of Contract. CHAPTER XIV. Contractual Relations. Article I. Contractual relations 339-351 II. Promise for the benefit of a third person 352-367 III. Joint and several contracts 368-394 CHAPTER XV. Interstate Contracts. Article I. Law of the place of contract 395-407 II. Exceptions to the general rule 408-418 III. Enforcement of contract 419-422 CHAPTER XVI. Implied Contracts. Article I. By acts of the parties 423-429 II. Paying another's debts 430-444 III. Recovering money for the use of another 445-456 IV. Receiving benefits from another 457-485 V. Waiving of tort 486-505 vii TABLE OF CONTENTS. CHAPTER XVII. Assignments. Section. Abticub I. Voluntary assignments 50G-514 II. Assignment of wages and salary 515-517 III. Interests that may be assigned 518-527 CHAPTER XVIII. Impairment of the Obligation of Contracts and the Right to Contract. Akticle I. The contract 528-533 II. Corporate charters and franchise 534 541 III. Police power of the State 542-546 IV. Police power and interstate commerce 547-554 V. Impairment of remedy 555-567 PART V. Termination of Conteact. CHAPTER XIX. Impossible Contracts. Abticle I. Discharge by impossibility of contract 568-579 11. Performance excused by act of God and public enemy 580-588 III. Non-performance of contract of personal service.... 589-592 CHAPTER XX. Rescission of Contract. Abticle I. Right to rescind 593-601 II. Work and labor 602-611 III. Rescission controlled by conditions subsequent 612-G23 CHAPTER XXI. Statute of Limitations Abticle I. Discharge by lapse of time 624-627 II. Application of statute 628-638 CHAPTER XXII. Performance. Article I. Specific mode 639-641 II. Decision of arbiter, architect or engineer 642-G66 III. Specific performance 667-681 CHAPTER XXIII. Breach and Discharge. Article I. Measure of damages 682-699 II. Composition with creditors 700 704 viii PA.PIT I. FREEDOM OF CONTEACT. Pi^I^T I. CHAPTER I. RigLt to Contract. ARTICLE I. The Basis of All Contracts of a Party Sui Juris. Section 1. The Power of the State Over the Right to Contract. 2. Regulating the Payment of Wages — Truck System. 3. Truck Laws in England. 4. Eight-Hour Law. § I. The power of the State over the right to contract. — Before a contract can be formed, the parties mnst have the right to contract. For withont the liberty of contract, no contrnct can be made, and the attempt would be a nullity. However, generally speaking, among the individual rights of \the citizen is that the liberty of contract ; yet such liberty is not absolute or universal. The State may restrain some individuals from all contracts, as well as all individuals from contracts. This is demonstrated by the denial of the right to contract for the pur- chase of lottery tickets ; the State may deny the right to minors to assume any obligations except for the necessaries of exist- ence ; to the common carrier the power to make any contract releasing itself from negligence ; and the State may restrain all § 1 FREEDOM OP CONTKACT. Ch. 1 engaged in any employment from any contract in the course of that employment which is against public policy. The posses- sion of this power by the State in no manner conflicts with the proposition that every citizen has a right freely to contract for the price of his labor, services, or property.^ So a State cannot limit the rights of a citizen to contract with reference to his property only when such limitation tends to promote the public good in some way. Otherwise it is an unwarranted interference with his rights.^ Public policy requires that all persons of full age and of competent understanding shall be allowed the fullest liberty of contracting, and their contracts entered into freely and voluntarily shall be held sacred and shall be enforced by the courts if necessary.''' This liberty to contract is subject to the following restrictions : 1. The contract must be one which the law does not prohibit; 2. the parties must be legally com- petent to contract ; 3. the contract must be in form, if the law requires it; 4. the thing to be done must not be prohibited; 5. the consideration must be legal and sufficient. Whenever a law is unreasonable, arbitrary and oppressive, and interferes with the right to contract in a lawful manner, and prevents a person from entering into a lawful employment in a lawful manner, it is nnconstitutional. No act is valid which unlawfully invades the privacy of the home without due pro- cess of law, deprives the citizen of the full and profitable use of 1. Frisbie v. United States, 157 Co., 18 R. I. IG, 25 A. 246, 17 U. S. 160, 15 Sup. Ct. 532. See, L. R. A. S5G; Shaffer v. Mining Co., also, Wolcott V. Fiissell, 134 Mass. 55 Md. 74; Ritchie v. People, 155 1, 45 Am. Rep. 272; Lecp v. Rail- III. 98, 40 N. E. 454, 29 L. R. A. road Co., 58 Avk. 407, 25 S. W. 75, 79, 40 Am. St. Rep. 310; Kelleyville 23 L. R. A. 264, 41 Am. St. Rep. Coal Co. v. Hairier, 207 111. 624, 69 109; State v. Coal Co., 36 W. Va. N. E. 927, 99 Am. St. Rep. 240. 802, 15 S. E. 1000, 17 L. R. A. 385; 2. Dennis v. Moses, 18 Wash. Hancock v. Yaden, 121 Ind. 366, 23 537, 52 P. 333, 40 L. R. A. 302. N. E. 253, L. R. A. 576, 16 Am. 3. Printing, etc., Registering Co. St. Rep. 396; State v. Brown, etc., v. Sampson, L. R. 19, Eq. 462. Ch. 1 KIGHT TO CONTRACT. § 1 his property, and of his right to labor at any lawful work when and where he pleases or infringes upon his rights of personal liberty.^ The provision of the Fourteenth Amendment to Federal Constitution, was intended to guarantee, not that every person shall have exactly the same privileges as every other person, regardless of difference in conditions, and independent of proper and reasonable classification, but that every person shall be given the same rights and privileges under the same circum- stances and conditions. But more ordinary classification can- not be justified ; but where there is a reasonable distinction be- tween classes of citizens, the legislature has a right to recognize duch classification, and to make different rules with respect to such classes, so long as it does not transgress those fundamental rights of life, liberty and the pursuit of happiness.^ Therefore, a State can make a distinction in favor of veteran volunteer fire- men as against those not veterans, and give preferences in em- ploying them to fill public office. Such preferment is justified by public policy.^ So the classification of veterans of the civil war is not arbitrary. Political employment is not of the essence of civil rights of life, liberty or property. Such preference is based upon actual service to the State, which the State has the right to compensate.'^ 4. State V. Broadbelt, 59 Md. 5. People v. Orange County Con- 565; Luman v. Hitchens, 90 Md. struction Co., 175 N. Y. 84, G7 N. 14, 44 A. 1051, 46 L. R. A. 393; E. 129. Bailey v. People, 190 111. 28, GO N. 6. People v. Folks, 85 N. Y. S. E. 98, 54 L. R. A. 838, 83 Am. St. 1100. Rep. 116; Lawton v. Steele, 152 U. 7. Opinion of Justices, 166 Mass. S. 136, 14 S. Ct. 499; Ex parte Lee, 589, 44 N. E. 625, 34 L. K. A. 58. 96 Cal. 354, 31 P. 245, 24 L. R. A. See Should There Be Freedom of 195, 31 Am. St. Rep. 218; In re Contract; 4 Columbia L. Review, Hong Wah, 82 Fed, Rep. 623; 429. Squire v. Tellier, 185 Mass. 18, 69 N. E. 312. § 2 FREEDOM OF CONTRACT. Ch. 1 § 2. Regulating the payment of wages — Truck system. — In many States laws have been enacted to protect tlie employes of corporations in payment of salaries in scrip or in goods from the stores of the corporations. But they have generally been held unconstitutional as restricting the right to contract. It is held an encroachment upon the just liberty and rights of the workman and his employer, or those who may be disposed to employ hiju, for the legislature to interfere with the free- dom of contract between them, as such interference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses.* And so a statute is unconstitutional which provides that no em- ployer shall impose a fine upon or withhold the wages or any part of the wages of a workman engaged in weaving for im- perfections that may arise during the process of weaving. Be- cause the right to employ weavers, and to make proper contracts with them, is protected by the constitution, and a statute which forbids the making of such contracts, or attempts to nullify them, or impair the obligations of them, violates the funda- mental principles of right which are expressly recognized in the constitution.^ In some of the States it is held that the legislature has au- thority to pass an act requiring the owners of mines to pay for 1. State V. Goodwill, 33 W. Va. 147 111. 66, 35 N. E. 62, 22 L. R. A. 179, 10 S, E. 285, 6 L. R. A. 621, 340, 37 Am, St. Rep. 206; Compare and note, 25 Am. St. Rep. 863 and Hancock v. Yaden, 121 Ind. 366, 23 note; State v. Loomis, 115 Mo. 307, N. E. 253, 6 L. R. A. 578, 16 Am. 22 S. W. 452, 21 L. R. A. 789 and St. Rep. 396; State v. Peel Splint note; Godcharlcs v. Wigeman, 113 Coal Co., 36 VV. Va. 802, 15 S. E. Pa. St. 431, 6 A. 354; State v. Coal 1000, 17 L. R. A. 385. and Coke Co., 33 W. Va. 188, 10 S. 2. Commonwealth v. Perry, 155 E. 288, 6 L. R. A. 359, 25 Am. St. Mass. 117, 28 N. E. 1126, 14 L. R. Rep. 891; Ramsey v. People, 142 A. 325 and note, 31 Am. St. Rep. 111. 380, 32 N. E. 364, 17 L. R. A. 533. 853; Braceville Coal Co. v. People, Ch. 1 EIGHT TO CONTRACT. § 2 mining coal every t:wo weeks in lawful money of the United States.^ And so a law has been declared constitutional which prohibits a corporation or person to pay in scrip or anything except in lawful money.* If the charter is given with a reservation that the legis^ lature may amend it, then the legislature may regulate the payment of wages by corporation, and forbid the parang of scrip or compel the corporation to pay weekly,^ and to pay back salary when employe is dismissed, on day of dismissal.® So it is held a statute is valid which requires pay- ment of wages in money at the option of the employe.^ In this case the court of Tennessee did not rest the case on the police power of the State, but upon appeal the United States Supreme Court sustains the statute as an excercise of the police power, which undoubtedly is the correct doctrine. And so a statute is valid which requires the weekly payment of wages f and some courts hold that a statute is valid which requires the weighing of coal for the purpose of fixing wages, before it is screened;^ but this doctrine is denied in other jurisdictions.-^® This class of legislation is common, and its validity is attacked 3. Haneock v. Yaden, 121 Ind. L. R. A. 504, 62 Am. !St. Rep. 1154 366, 23 N. E. 253, 6 L. R. A. 578, and note. 16 Am. St. Rep. 396. See, also, 7. Knoxville Iron Co. v. Harbi- Shaffer v. Mining Co., 55 Md. 74; son, 183 U. S. 13, 22 S. Ct. 1; Har- In re House Bill, 23 Colo. 504, 48 P. bison v. Knoxville Iron Co., 103 612. Tenn. 421, 53 S. W. 955, 56 L. R. A. 4. State V. Peel Splint Coal Co., 316, 76 Am. St. Rep. 682; Compare 36 W. Va. 802, 15 S. E. 1000, 17 L. Kellyville Coal Co. v. Harrier, 207 R. A. 385. 111. 624, 69 N. E. 927, 99 Am. St. 5. State V. Brown, etc., Mfg. Co., Rep. 240. 18 R. I. 10, 25 A. 246, 17 L. R. A. 8. In re House Bill, 163 Mass. 856; Leep v. Railroad Co., 58 Ark. 589, 40 N. E. 713, 28 L. R. A. 344. 407, 25 S. W. 75, 23 L. R. A. 264, 9. State v. Wilson, 61 Kan. 32, 41 Am. St. Rep. 109. 64 P. 23, 47 L. R. A. 71. 6. St. Louis, etc., R. R. Co. v. 10. In re Preston, 63 Ohio St. Paul, 64 Ark. 83, 40 S. W. 705, 37 428, 59 N. E. 101, 81 Am. St. Rep. 642. § 2 FKEEDOM OF CONTRACT. Ch. 1 as in violation of the guarantee of equal protection. This legis- lation is illustrated by the statutes fixing hours of labor, pro- viding for the payment of wages in money only, and statutes controlling the method of fixing wages, as by requiring that where coal is mined by weight, it must be weighed before screen- ing. These are all statutes abridging the right of the citizen to make contracts, a right which is within the protection of the Fourteenth Amendment to the Federal Constitution. The liberty contemplated in this provision means not only the right of freedom from servitude, imprisonment or physical restraint, but also the right to use one's faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling or pro- fession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof. And to control this right of liberty will be in violation of constitutional rights except under the police power of the State.^^ But such statutes are sustained on other grounds, but incorrectly.^^ The principle of these cases has been upheld by the United States Supreme Court as an exercise of the police power alone. Thus, where the police power is not applicable an attempt to fix the wages of employes on city contracts at the rate generally paid to em- ployes in like vocations, is invalid.^^ If the legislature under- takes to provide that persons following some lawful trade or profession shall not contract as they see fit, or in any other way make such use of their property as is permissible to others, this would transcend the limits of legislative power, unless the police power of the State is applicable. And this may explain 11. See Knoxville Iron Co. v. N. E. C53, G L. R. A. 57G, IG Am. Harbison, 183 U. S. 13, 22 S. Ct. St. Rep 34G; Compare Kellyville 1; Holden v. Hardy, 1G9 U. S. 3GG, Coal Co. v. Harrier, 207 III. G24, G9 18 S. Ct. 383. N. E. 927, 99 Am. St. Rep. 240. 12. Harbison v. Knoxville Iron 13. People v. Coler, IGG N Y. 1, Co., 103 Tenn. 421, 53 S. W. 734, 5G 59 N. E. 716, 52 L. R. A. 814, 82 L. R. A. 31G, 7G Am. St. Rep. G82; Am. St. Rep. G05 and note. Hancock v. Yaden, 121 Ind. 3GG, 23 Ch. 1 RIGHT TO CONTKACT. § 2 a seeming conflict of authoritj in two cases, where one is con- trolled by the police power and the other not, which is often lost sight of, even by judges. The decisions are in confusion and irreconcilable. So it is held that a statute compelling employers to make weekly payment of wages is unconstitutional, as infringing the right of private contract, and as depriving persons affected thereby of their property without due process of law.'^ In the Indiana case,^^ the judge, speaking of In re House Bill,^^ says that the constitution of Massachusetts is more comprehensive than that found in the constitution of some of the other States, and the provision passed upon in sup- porting the view expressed is radically different and broader than the provision of the Indiana constitution. The court further says that the Rhode Island case^^ rests upon the theory that the statute was but an amendment to the charter of a cor- poration under the reserved power of the legislature to amend. And the case of Skinner v. Garnett^^ is of little value on the point discussed because, (1) it involves the payment of wages monthly, and (2) because the decision turns on substantially the same grounds as the Rhode Island case. The legislature cannot regulate rate of wages in city con- tracts: (1) because it is an attempt to force a municipality to frame its contracts in the interest of individuals or classes, and thus to that extent, diverts its money to private purposes; (2) because it invades the rights of liberty and property by denying 14. Republic Iron, etc., Co. v. 15. Republic Iron, etc., Co. v. State, IGO Ind. 379, 63 N. E. 1005, State, 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136; Braceville Coal Co. 62 L. R. A. 136. V. People, 147 111. 66, 35 N. E. 62, 16. 163 Mass. 589, 40 N. E. 713, 22 L. R. A. 340, 37 Am. St. Rep. 28 L. R. A. 344. 206; Commonwealth v. Isenberg, 4 17. State v. Brown Mfg. Co., Pa. Dist. Rep. 579; San Antonia, 18 R. I. 17, 25 A. 246, 17 L. R. A. etc. Co. V. Wilson (Tex. Civ. 856. App.), 19 S. W. 910; Compare 18. 96 Fed. Rep. 735. Skinner v. Garnett, 96 Fed. Rep. 738. § 2 FREEDOM OF CONTRACT. Ch. 1 to the municipality and to the employers of labor on city con- tracts the right to agree with their employes upon the measure of their compensation; (3) because it arbitrarily confiscates to the municipality all rights of property of the employers under their contract for their failure to comply with the terms of the statute. Such contracts entered into cannot be said to be volun- tary and fall with the statute, if already made.^® It is held that the better rule is that a statute requiring the payment of wages in money is valid as an exercise of the police power.-*' But this is not the rule in Illinois and Missouri. The Illinois statute^^ provides that no deduction shall be made in an employe's wages except by the payment of money or check without discount. This is so ordered to prevent the exercise of truck stores in paying wages by goods and the like. But the court holds that such a statute is unconstitutional as limiting the right to contract.^^ It w^as not upheld as coming within the police power of the State. The Missouri Supreme Court holds with the Illinois doctrine, that such a statute is a limit on the right to contract and, there- fore, void.^^ Many of the statutes have been held unconsti- tutional because of class legislation. When scrip must be re- deemed in cash, the rule in Illinois and Missouri, is that such statute is unconstitutional as limiting the right to contract.^* 19. People V. Coler, 166 N. Y. 1, 22. Kellyville Coal Co. v. Har- 59 N. E. 716, 52 L. R. A. 814, 82 rier, 207 111. 624, 69 in. E. 927. See, Am. St. Rep. 605 and note. See, also, Connelly v. Union Sewer Pipe also, People v. Coler, 166 N. Y. Co., 184 U. S. 540, 22 S. Ct. 431. 144, 59 N. E. 776. 23. State v. Missouri Tie and 20. Knoxville Iron Co. v. Harbi- Lum. Co., 80 S. W. 933. son, 183 U. S. 13, 22 S. Ct. 1, 103 24. Kellyville Coal Co. v. Har- Tenn. 421, 53 S. W. 734, 56 L. R. A. rier, 207 111. 624, 69 N. E. 927, 99 316, 76 Am. St. Rep. 682. Am. St. Rep. 440; State v. Missouri 21. Kurd's 111. St. (1901), p. Tie and Lum. Co. (Mo.), 80 S. W. 879, sees. 6, 7. See Kellyville Coal 933. Co. V. Harrier, 207 HI. 624, 69 N. E. 927, 99 Am St. Rep. 240. 10 Ch. RIGHT TO CONTRACT. §§ 3, 4 § 3. Truck laws in England — In England the truck laws are valid and, of course, not in accord with the general doctrine in the United States.^ The old truck laws are many and date from about the year 1464.^ They were first applied to one branch of manufacture, and then, as experience and the progress of manufactures dic- tated, to others, until they embrace nearly the whole manu- factures of England. They establish the obligation and pro- duced the custom of uniformly paying the whole wages of labor- ers in the current coin of the realm. All these laws have been consolidated.^ These acts were founded upon the principle that where two classes of persons are dealing together and one class is, generally speaking, weaker than the other and liable to oppression, either from natural or accidental causes, the law should, as far as possible, redress the inequality by protecting the weak against the strong. On this principle rests the protection thrown around infants and persons of unsound or weak mind. But in the United States such inequality is not recognized as far as corporations and laborers are concerned. And so in England a court refused to enforce a covenant be- tween a mariner and his employer to the effect that the former should not be entitled to any part of his wages unless the ship should return to the last port of discharge, because the relative situation of the parties and the nature of the agreement, pro- duced oppression on the weaker, and, therefore, the contract was not enforceable in any court governed by the rules of nat- ural justice* § 4. Eight-hour law. — Class legislation is not constitutional. The right to contract in legitimate business is recognized by the constitutional guaranties. Competent parties cannot be de- 1. Archer v. James, 2 Best & S. 3. 1 & 2 Wm. IV, ch. 37. 73. 4. The Juliana, 2 Dod. 504. 2. 4 Edw. IV. 11 § 4 FREEDOM OF CONTEACT. Cll. 1 prived of the right to contract as they see fit iii legitimate chan- nels. Each citizen has the right to pursue his own advance- ment and happiness in his own way, subject only to the restraint necessary to secure the same right to all others, as all are equal before the law. Every man has the right to use his powers and faculties, and to adopt and pursue such a vocation as he may clioose, subject only to the restraint necessary to secure the com- mon welfare.^ The right to contract necessarily includes tlie right to fix the price at which labor will be performed and the mode and time of payment. Each is an essential element of the right to contract, and whoever is restricted in either, as the same is enjoyed by the community at large, is deprived of liberty and property.^ Tlierefore, a law which provides that for all classes of mechan- ics, servants, and laborers, except farm or domestic laborers, a day's work shall not exceed eight hours, and that for working any employe over eight hours the employer shall pay extra com- pensation, is unconstitutional because it descriminates against farm and domestic laborers and is special legislation, and de- nies the right to parties to contract with reference to compensa- tion for services.^ And such Jaw cannot be npheld as a police regulation, because it docs not operate to promote the health, safety, or welfare of society.'* 1. Froier v. People, 141 111. 171, Low v. Rees Printing Co., 41 Neb. 31 N. E. 395, IG L. R. A. 492 and 127, 59 N. W. 362, 24 L. R. A. 702, note; Commonwealth v. Perry, 155 43 Am. St. Rep. 670; People v. Mass. 117, 28 N. E. 112G, 14 L. R. Coler, 166 N. Y. 1, 59 N. E. 716, 52 A. 325 ad note, 31 Am. St. Rep. L. R. A. 814, 82 Am. St. Rep. 005 533; People v. Gillson, 109 N. Y. and note. 389, 17 N. E. 343; Slaughter House 3. Low v. Rees Printing Co., 41 Cases, 16 Wall. (U. S.) 36; God- Neb. 127, 59 N. W. 362, 24 L. R. A. Charles v. Wigeman, 113 Pa. St. 702, 43 Am. St. Rep. 607; Ritchie 431, G A. 354; State v. Goodwill, v. People, 155 111. 98, 40 N. E. 454, 33 W. Va. 179, 10 S. E. 285, 6 L. 29 L. R. A. 79, 46 Am. St. Rep. 315. R. A. 621 and note, 25 Am. St. Rep. 4. Millett v. People, 117 111. 294, 863 and note; People v. Grsut, 179 7 N. E. 031, 57 Am. St. Rep. 869; N. Y. 417. Frorer v. People, 141 111. 171, 31 2. In re Jacobs, 98 N. Y. 106; 12 Ch. 1 EIGHT TO CONTRACT. § 4 The Utah Constitution provides that "eight honrs shall con- stitute a day's work on all work or undertakings carried on or aided by the State, county or municipal governments; and the legislature shall pass laws to provide for the health and safety of employes in factories, smelters and mines.'"^ Under this provision a statute providing that "the period of employment of workingmen in all underground mines shall be eight hours per day, except in case of emergency, where life or property is in imminent danger," is valid and not opposed to the Federal Constitution ; and the State statute may make it a misdemeanor to employ a person for a longer time.*' This is the doctrine also of the United States Supreme Court, which passed upon the validity of the Colorado statute, and held that the law was an exercise of the State's police power. Justice Brown said in bis opinion that it was not the intention of the court to pass gen- erally upon the constitutionality of eight-hour laws, but that lin so far as State laws were enacted for the protection of the 'lives, the health or the morals of a community, they are valid under the police power of the State; that there can be no doubt of the exceptional and unhealthful character of work in smelt- ers or mines, because of bad air, high temperature and noxious gases, and hence the Colorado law was valid and constitutional.''' And so where the laborer is working for the State or a crea- tion of a State, the legislature may prescribe the number of hours which shall constitute a day's labor. And a statute is N. E. 395, IG L. R. A. 492 and 5. Utah Const., sec. G. note; Stato v. Loomis, 115 Mo. 307, 6. State v. Holden, 14 Utah, 71, 22 S. W. 350, 21 L. R. A. 789 and 4G P. 75G, 37 L. R. A. 103. note; Ex parte Kubacic, 85 Cal. 274, 7. Holden v. Hardy, 109 U. S. 24 P. 737, 20 Am. St. Rep. 22G, 9 3G0. 18 S. Ct. 383. See, also. In re L. R. A. 482; In ve Jacobs, 98 N. Ten Hour Law (R. I.), 54 A. GOO, Y. lOG; People v. Gillson, 109 N. Y. Gl L. R. A. G12; Wenham v. State 389, 17 N. E. 343, 4 Am. St. Rep. (Neb.), 91 N. W. 421, 58 L. R. A. 4G5; Ritchie v. People, 155 111. 98, 825; Atkin v. Kansas, 191 U. S. 40 N. E. 4.54, 29 L. R. A. 79, 46 207, 24 S. Ct. 124. Am. St. Rep. 315. 13 § 4 FREEDOM OF CONTRACT. Ch. 1 constitutional which declares that no one undertaking to per- form work for the State or one of its municipalities shall per- mit or require an employe on such work to labor in excess of eight hours each day, because the State is a guardian and trustee of the people, to prescribe conditions upon which it will permit Avork to be done. Regulations on this subject suggest only considerations of public policy. No one is entitled, of ab- solute right and part of his liberty, to perform labor for the State ; and no contractor for public work can excuse violation of his lawful agreement with the State by doing that which the statute under which he proceeds distinctly forbids him to do.^ But where the police power of the State and public policy do not control, such a statute to regulate the hours of private em- ployment is unconstitutional.^ But under the police power or where public policy control, such statutes are constitutional.^'^ In Atkins v. Kansas,^^ a statute which makes it a criminal offense for a contractor for public work to permit or require an employee to labor thereon more than eight hours a day, is con- stitutional. Neither the constitutional guaranty of freedom to contract, nor the guaranty of the equal protection of the laws, is deemed to be violated by such a statute. 8. Atkin v. Kansas, 191 U. S. Electrical Supply Co., IGO Ind. 338, 207, 24 S. Ct. 124; Compare People 60 N. E. 895, 98 Am. St. Rep. 325. V. Orange County Construction Co., 10. Commonwealth v. Hamilton 175 N. Y. 84, 67 N. E. i29; Cleve- Mfg. Co., 120 Mass. 383; State v. land V. Construction Co., 67 Ohio Buchanan, 29 Wash. 602, 70 P. 52, St. 197, 65 N. E. 885, 59 L. R. A. 59 L. R. A. 342, 92 Am. St. Rep. 775, 93 Am. St. Rep. 670; Ex parte 930; Wenham v. State (Neb.), Kuback, 85 Cal. 29, 24 P. 737. 91 N. W. 421, 58 L. R. A. 825; 9. In re Eight Hours Bill, 21 Holden v. Hardy, 169 U. S. 366, 18 Colo. 29, 39 P. 328 ; Fiske V. People, S. Ct. 383; Compare Ritchie v. 188 111. 366, 58 N. E. 985; 52 L. R. People, 155 111. 98, 46 Am. St. Rep. A. 274; In re Morgan, 26 Colo. 415, 315, 40 N. E. 454, 29 L. R. A. 79; 58 P. 1071 47 L. R. A. 52, 77 Am. State v. Legund (Md. Bait. Ct.), 35 St. Rep. 269; Street v. Varney Chi. L. News, 152. 11. 191 U. S. 207, 24 S. Ct. 124. 14 Ch. 1 EIGHT TO CONTRACT. § 4 In New York a similar statute is held void/- on the ground that the police power of the State does not extend to such inter- ference with the employment of labor by independent contrac- tors though they are engaged upon a public work. The Xew York court says that if the employes were working directly for the State, the State might regulate their hours and every other detail of their work, but the doctrine is stated, that the State has no greater right than a citizen has to control the details of the work when let out the performance thereof to a contractor, ex- cept so far as it reserves such right by the contract. The United States Supreme Court holds differently, and says as the work is done for the State, or for one of its municipalities, the statute is valid. It belongs to the State as the guardian and trustee for its people, to control its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to review the State's action in that respect. Regula- tions on this subject suggest only consideration of public policy. No contractor for public work can excuse a violation of his agreement with the State by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do. It seems that the highest court of any State can settle this question for its own jurisdiction. If the State does hold such a statute valid, the Federal court will not interfere, as it holds that the Federal constitution is not violated. But if the State court holds such a statute unconstitutional because it is not the proper exercise of the police power, then can this question reach the Federal court ? And if such decision should rest upon a Federal question, and is consonant with the Federal right claimed as against the State, this would preclude the Federal court from interfering. 12. People V. Orange County N. E. 129; People v. Grout, 179 N. Road Const. Co., 175 N. Y. 84, 67 Y. 417. 15 f 1 CHAPTER II. Insane Persons. ARTICLE I. Capacity to Contract. Section 5. Insanity. G. Wliat is Capacity to Contract. 7. Old Age, and Weakness of Mind as Incapacity. 8. Insane Delusion. 9. Void, Voidable, and Valid Contracts. 10. Restoration of Reason. 11. Necessaries. 12. After Inquisition and Finding of Lunacy. 13. Marriage — Insanity of Party. 14. Bills and Notes of Insane Persons. 15. Partnership. IC). Life Insurance — No Suicide Clause in Policy. 17. Life Insurance — Impulsive Insanity. 18. The Question of Right and Wrong — English Doctrine. 19. American Doctrine. 20. Die by Suicide, Sane or Insane. § 5. Insanity. — It is the unbroken current of opinion of both physician and courts, running back for more than a cen- tury, that a person may be deranged, may be non compos mentis, or of unsound mind, though not totally deprived of memory and understanding. To give a definition of insanity is im- practicable, or to describe the different kinds of insanity, be- cause the several varieties pass into each other imperceptibly and more frequently than insanity into a healthy and sound mind. All writers and jurists agree that an immovable delu- sion as to facts past or present is not merely a symptom of in- sanity, but is in fact insanity or the effect of an unsound mind. 16 Ch. 2 INSANE PERSONS. § 5 Insanity, except in case of idiots, who labor under a perpetual infirmity from their birth, implies a derangement in somo shape or fonn of the intellect. As to whether a party is capable of contracting is a question as to whether the mind is deranged to such an extent as to dis- qualify the contractor from conducting himself with personal safety to himself and others, and from managing and disposing of his OAvn affairs and discharging his relative duties.^ Thus, the testamentary capacity of a party does not necessarily imj)ly a mind wholly unimpaired. If the testator recollects the property he is to dispose of, the persons to whom he wishes to bequeath it, the manner in which he or she desires to dispose of it, and un- derstands the business engaged in, this is sufficient capacity. The disposing mind or memory which the law declares is a test of testamentary capacity, is embraced in the one power to collect and retain the elements of business to be performed for a sufficient length of time to perceive and comprehend their relations to each other,^ and this test will apply to all business relations and the making of contracts.^ The law recognizes all the grades and varieties of mental imbecility under the general head of insanity without troubling itself much about classification or exact definitions ; in a legal sense mental unsoundness is insanity, and mental soundness is sanity. 1. McEhoy's Case, 6 Watts & S. 1021, 12 L. R. A. 161 and note; (Pa.) 451. Shaver v. McCarthy, 110 Pa. St. 2. Bulger v. Ross, 98 Ala. 267, 339, 5 A. 614; Brown v. Mitchell, 12 So. 803; Hampton v. Westcott, 75 Tex. 9, 12 S. W. 606; Bush v. 49 N. J. Eq. 522, 25 A. 254; Mar- Lisle, 89 Ky. 393, 12 S. W. 448; tin V. Thayer, 37 W. Va. 38, 16 S. Spratt v. Spratt, 76 Mich. 384, 43 E. 489; Norton v. Paxton, 110 Mo. N. W. 627; Nicewander v. Mcewan- 456, 19 S. W. 807; Greene v. der, 151 111. 146. 37 X. E. 698. Greene, 145 111. 264, 33 N. E. 941; 3. Davren v. White, 42 N. J. Eq. Potter V. Jones, 20 Oreg. 239, 25 P. 569, 7 A. 682. 17 §§ 6, 7 FREEDOM OF CONTRACT. Ch. 2 § 6. What is capacity to contract. — Whether a party is in- sane or in a condition of feeble or impaired mind at the date of the contract, so as to render it voidable, is a question difficult to answer. But if the contractor has memory and mind enough to recollect the proj)erty he is to convey and the persons to whom he was to convey it, and the manner in which he wished it to be disposed of, and knows and understands the business he is engaged in, such person is, in contemplation of law, of sound mind, and his age or bodily infirmity will not vitiate the con- veyance made by one possessing such capacity.^ But if the party cannot understand the nature and effect of his contract on account of his idiocy, lunacy, monomania, or other diseases of the mind, he is non compos mentis.^ If the party is insane but has lucid intervals, a contract may be ratified during a lucid interval and become valid, though made when he was insane.^ Wliile mere imbecility or w^eakness of mind in a grantor will not, in the absence of fraud, avoid his deed, insanity will do so if of such a character as to induce the conveyance, although such insanity may not amount to a complete dethronement of reason and understanding upon all subjects."* § 7. Old age and w^eakness of mind as incapacity. — The fact that a person's intellectual powers have been somewhat im- 1. Eaton V. Eaton, 37 N. J. L. (Va.) 704, 60 Am. Dec. 313; Perry 108, 18 Am. Rep. 716; Gould v. v. Pearson, 135 111. 224, 25 N. E. Hull, 127 111. 523, 20 N. E. 665; 636. Somers v. Pumphrey, 24 Ind. 231; 3. AUis v. Billings, 6 Met. Dennett v. Dennett, 44 N. H. 531, (Mass.) 415, 39 Am. Dec. 744 and 84 Am. Dec. 97 ; Hovey v. Chase, 52 note ; Blakeley v. Blakeley, 33 N. J. Me. 316. Eq. 502; Gibson v. Loper, 6 Gray 2. Burnham v. Kidwell, 113 111. (Mass.) 279, 66 Am. Dee. 414. 425; Merritt v. Gumaer, 2 Cow. 4. Dewey v. Allglre, 37 Neb. 6, (N. Y.) 552; Hale v. Brown, 11 55 N. W. 276, 40 Am. St. Rep. 468; Ala. 87; Ball v. Maunin, 3 Bligh, Hay v. Miller, 48 Neb. 156, 66 N. N. S. 1; Brown v. Bro^vn, 108 Mass. W. 1115. 386; Boyce v. Smith, 9 Gratt. 18 Ch. 2 INSANE I'ERSONS. § T paired by age is not sufficient to invalidate bis deed, if he still retains a full comprehension of the meaning, design, and effect of his acts.^ The sole question is always, has the party suffi- cient intelligence to understand his contracts ?^ As to the measure of capacity, a party must have understanding enough to enable him to comprehend in a reasonable manner the nature of the business he is doing.^ Old ago is not in itself sufficient evidence of incapacity to make a deed or will* or contract. Mere weakness of intellect does not incapacitate one from making a contract.^ There may be such imbecility of mind, from whatever cause, induced to in- capacitate to contract. It seems impossible to lay down a gen- eral rule of universal application. Each case must stand on its special circumstances. There are gradations and degrees of mental weakness, as there are of intellectual strength. The in- 1. Lindsey v. Lindsey, 50 111. 79, 99 Am. Dec. 489; Davis v. Phillips, 85 Mich. 198, 48 N. W. 513; Cocke V. Montgomery, 75 Iowa, 259, 39 N. W. 386; White v. Farley, 81 Ala. 563, 8 So. 215; Cain v. Warford, 33 Md. 23; Dewey v. Allgire, 37 Neb. G, 55 N. W. 276, 40 Am. St. Rep. 468; Maddox v. Simmons, 31 Ga. 528. 2. Davis V. Phillips, 85 Mich. 198, 48 N. W. 513. 3. Lozear v. Shields, 23 N. J. Eq. 509; Hill v. Day, 34 N. J. Eq. 150; Day V. Seely, 17 Vt. 542; Gore v. Gibson, 13 Mees. & Wal. 623; Stew- art V. Flint, 59 Vt. 144, 8 A. 801; Peabody v. Kendall, 145 111. 519, 32 N. E. 674; Lynch v. Doran, 95 Mich. 395, 54 N. W. 882; King v. Cummings, 60 Vt. 502, 11 A. 727; Trimbo v. Trimbo, 47 Minn. 389, 50 N. W. 350; Marshall v. Marshall, 75 Iowa, 132, 39 N. W. 230; Jene- sen V. Jenesen, 66 111. 259; Coleman V. Frazer, 3 Bush. (Ky.) 300; Crowe V. Peters, 63 Mo. 429. 4. Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668 and note; Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 383 ; Collins v. Town- ley, 21 N. J. Eq., 353; Watson v. W'atson, 2 B. Mon. (Ky.) 74; In re Snelling, 136 N. Y. 515, 32 N. E. 1006; Bain v. Cline, 24 Oreg. 175, 41 Am. 6t. Rep. 851, 33 P. 542; Howell V. Taylor, 50 N. J. Eq. 428, 26 A. 566; Pooler v. Christman, 145 HI. 405, 34 N. E. 57. 5. 2 Kent's Com. 453; Farnam v. Brooks, 9 Pick. (Mass.) 220; Cram V. Cram, 33 Vt. 15; Curtis v. Brownell, 42 Mich. 165, 3 N. W. 936. 19 §§ 1, 8 FREEDOM OF CONTRACT. Ch. 2 quiry in each case, looking to all the circumstances, is, was the party led into the contract by unfair means, which amount to fraud, deceit, imposition, or circumvention ?^ If one is capable of taking care of his own interests, makes a bad or losing con- tract, the law will not aid him unless deceit has been practiced against him." jSTo degree of physicial or mental imbecility, which does not deprive the party of legal competency to act, is of itself sufficient to avoid his contract.^ It must go so far as to disable him from knowing and understanding the nature and effect of his act.^ His mind may be weak as compared with what it had been, the memory enfeebled, the understanding b© weak, the character and demeanor eccentric, and he may not have the capacity to transact all ordinary business of life, yet if he understands the nature of the act he does, recollects the property he is disposing of, and the person to whom he grants it, and how he desires to dispose of it, his act is valid. ^"^ The presumption of capacity is always accepted at the time the deed was executed or contract made as to a person whose con- tract is brought in question. ^^ § 8. Insane delusion. — A party may be partially insane, or insane upon one subject and perfectly rational upon other sub- jects. In former times it was held that non compos mentis, 6. Simonton v. Bacon, 49 Miss. 8. Favnam v. Brooks, 9 Pick. 52; Gartside v. Isherwood, 1 Bro. C. (Mass.) 212, 19 Am. Dee. 353. C. 560; Mann v. Betterley, 21 Vt. 9. Mercer v. Kelso, 4 Gratt. 326; Willis v. Jernegon, 2 Atk. (Va.) 106; Buckey v. Buckey, 38 251; Stewart v. Lispenard, 26 W. Va. 168, 18 S. E. 383. Wend. (N. Y.) 254. 10. Nicholas v. Kershear, 20 W. 7. Miller v. Craig, 36 111. 109 Stone V. Wilbur, 83 111. 105 Aiwon V. Stout, 42 Pa. St. 114 Va. 251; Kerr v. Lunsford, 31 W. Va. 662, 8 S. E. 493. 11. Buswell on Ins., 159; Cain V. Warford, 33 Md. 23; Mad- Buckey v. Buckey, 38 W. Va. 168, dox V. Simmons, 31 Ga. 512; Van 18 S. E. 383. Alst V. Hunter, 5 Johns. Ch. 160. 20 Ch. 2 INSANE PERSONS. § 8 meant that the party had wholly lost his understanding;^ that the terms "non compos mentis/' and of unsound mind, are legal terms and import a total deprivation of sense. This doctrine has long since been repudiated. Every person is to be deemed of unsound mind who has lost his memory and understanding, by old age, sickness, or other accident, so as to render him in- capable of transacting business or of managing his property.^ When an insane delusion is connected with the transaction the contract is voidable. Whenever the mind is so deranged that the testator, gi-antor, or contractor enters into a transaction under an insane delusion, so that he is incapable of doing busi- ness, the transaction is voidable,^ even if the delusion is the result of habitual drunkeness.'* If the insane delusion influences the contractor's will in disposing of his property in a manner which he would not follow if he had been sane, the contract, will, or deed will be voidable,^ though the actor may have been of sound mind in other respects.^ For it is well known that in many forms of insanity the capacity to transact business is en- tirely unaffected, and in such case the fact of insanity cannot be set up to avoid business transactions not affected by the in- sane delusion.^ The belief in spiritual manifestations is not necessarily evi- 1. Beverley's Case, 4 Co. 123, Co. 6. Lucas v. Parsons, 24 Ga. 640, Litt. 247a, 2 Bl. Com. 292. 71 Am. Dec. 147; Cotton v. Ulnor, 2. In re Baker, 2 Johns. Ch. (N. 4.5 Ala. 378, 6 Am. Rep. 703; Y.) 232; Perry v. Pearson, 135 111. Chaney v. Bryan, 16 Lea (Tenn.), 218, 25 N. E. 636; Xoel v. Karper, 03; Tawney v. Levy, 76 Pa. St. 106; 53 Pa. St. 97. Bond v. Bond, 7 Allen (Mass.) 1; 3. Edge V. Edge, 38 N. J. Eq. Alston v. Boyd, 6 Humph. (Tenn.) 211. 504; Rlggs v. Tract Soc, 95 N. Y. 4. Menkins, v. Lightner, 18 111. 503; Samuel v. Marshall, 3 Leigh. 282; Bliss v. Railroad Co., 24 Vt. (Va.) 567. 424. 7. Searles v. Galbraith, 73 111. 5. Banks v. Goodfellow, L. R., 5 209: West v. Russell, 48 Mich. 74, Q. B. 544; Ballantine v. Proudfoot, 11 N. W. 812. 62 Wis. 216, 22 N. W. 392. 21 §§ 8, 9 FREEDOM OF CONTRACT. Cll. 2 dence of such an impaired mental condition as to sliow that those who hold such opinions are unfit to make a disposition of their property.^ So the fact that a testator is a spiritualist is not a suflScient ground for setting aside his will.^ Extreme re- ligious anxiety of a party is not a ground for setting aside his contract or will.^° Partial insanity in the form of monomania not connected with the subject of the contract, cannot invali- date the transaction. To avoid a contract, the insane delusion must be connected with it as a moving force.^^ § g. Void, voidable, and valid contracts, — The general rule is that transactions of insane persons are binding in law and equity until avoided. And although their transactions are in general not void, but only voidable, the court will fully protect their interests and will allow them to set up their disability in avoidance of their transaction.^ A deed of conveyance of a person of insane mind, executed before an inquisition and finding in lunacy, if taken in good faith is voidable only and not void," and this is the rule as to other contracts. 8. Lewis V. Aibuckle, 85 Iowa, (Mass.) 431; Seaver v. Phelps, 11 335, 52 N. W. 237, 16 L. R. A. 677 Pick. (Mass.) 304, 22 Am. Dec. 372. and note. 2. Baldwin v. Golde, 88 Huij (N. 9. Otto V. Doty, 61 Iowa, 23, 15 Y.), 115, 34 N. Y. S. 587; Eaton v. N. W. 578; Smith v. Will, 52 Wis. Eaton, 37 N. J. L. 108, 18 Am. Rep. 543, 8 N. W. 616, 9 N. W. 665. See, 716; 4 Kent's Com. 450; Elston v. also. Burgess v. Pollock, 53 Iowa, Jasper, 45 Tex. 413; Pearson v. 273, 5 N. W. 179, 36 Am. Rep. 218. Cox, 71 Tex. 246, 9 S. W. 924, 10 10. Chapin's Will Case, 32 Wis. Am. St. Rep. 740; Riggan v. Green, 557; Weir's Will, 9 Dana (Ky.) 80 N. Car. 236, 30 Am. Rep. 77; 434. Hovey v. Chase, 52 Me. 304, 83 Am. 11. Boyee v. Smith, 9 iGratt. Dec. 514; Alles v. Billings, fi Met. (Va.) 704; Lewis v. Arbuekle, 85 (Mass.) 415, 39 Am. Dec. 744 and Iowa, 335, 52 N, W. 237, 16 L. R. note; Gibben v. Maxwell, 34 Kan. A. 677 and note. 8, 7 P. 534, 55 Am. Dec. 233 ; Boyer 1. Mitchell V. Kingman, 5 Pick. v. Berryman, 123 Ind. 451. 24 N. K 22 Ch. 2 INSANE PERSONS. § 9 In England and in the United States, when the common law prevailed, a feoffment of a lunatic or idiot, in person, was only voidable, and not void ; because the solemnity and formalities of liverv of "scisin, together with the necessary participation of others in the act, and its notoriety, presuppose that the inca- pacity of that party was not apparent.^ In the United States livery of seisin has been abolished, and registration has taken its place. So where a deed of bargain and sale of a lunatic, when executed with all the formalities of law, and duly regis- tered, will, like a feoffment in person, be only voidable and not void. But it is said that there is a distinction between the feoff- ment of a lunatic taking effect by livery of seisin and his deed of bargain and sale; that his surrender, or grant, is void ah initio.'^ It is held that a deed of a man who is non compos mentis, is legally ineffectual and inoperative to pass title to land; that it is not merely voidable, but absolutely void; that it cannot be a deed, it never having had any legal existence.^ And it is also held that a power of attorney of a lunatic, or of one non compos mentis, is void.^ But this doctrine of a void deed, if made by a lunatic, is not accepted only by a few courts and the weight of authority holds 249; Dennett v. Dennett, 44 N. H. 4. 3 Salk. 300, 2 Vent. 198; 538; Blakely v. Blakely, 33 N. J. Yates v. Boen, 2 Strange, 1104; Es- Eq. 508; Snowden v. Dulavey, 11 tate of Silver, 5 Rawle (Pa.) 371; Pa. St. 525; Breckinridge v. Orms- Farley v. Parker, 6 Ore. 105, 25 by, i J. J. Marsh. (Ky.) 236, 19 Am. Rep. 504; Elder v. Schu- Am. Dec. 71; Fitzgerald v. Reed, 9 macher, 18 Colo. 433, 33 P. 175; S. M. (Miss.) 94; Allen v. Berry- Rogers v. Blackwell, 49 Mich. 192, hill, 27 Iowa, 540; Riley v. Carter, 13 N. W. 512; Van Dusen v. Sweet, 76 Md. 581, 25 A. 667, 19 L. R. A. 51 N. Y. 378. 489 and note, 35 Am. St. Rep. 443; 5. Van Dusen v. Sweet, 51 N. Y. Jackson v. Gumear, 2 Cow. (N. Y.) 378. 552: Key v. Davis, 1 Md. 32. 6. Dexter v. Hall, 15 Wall. (U. 3. Thompson v. Leach, Carthew. S.) 9. 435. 23 § 9 FREEDOM OF CONTEACT. Cll. 2 that such deed is only voidable. And as the conveyance laws of the United States take the place of the feoffment and livery of seisin, and which was voidable when made by an insane person, so a deed in the United States made by a lunatic should be void- able only and not void. An insane man has not the power to convey an indefeasible title. This incapacity inheres in all titles transferred through him. The right of infants and insane alike to avoid their contracts is an absolute and paramount right superior to all equities of third persons, and may be exercised against a bona fide purchaser; his deed is voidable, not void,"^ and when not under guardianship, conveys the seisin.^ The insanity of one contracting party does not give to the other party the right to avoid the contract.^ There is an array of decisions that hold that a deed given by a lunatic is void. It is generally held that after one has been judicially declared insane, any contract he assumes to make is absolutely void, and the presumption of the continuance of the insanity is conclusive as to all dealings with him until it has been suspended. ^° And so a deed executed by a lunatic is ab- solutely void, and if not taken in good faith and for a valuable consideration, will not be upheld in equity, even in favor of a mortgagee of the grantee.^^ And so a note made by a lunatic with knowledge of his condition on the part of the payee is ab- 7. Hovey v. Hobson, 53 Me. 451, Rep. 443; Boyer v. Berryman, 123 80 Am. Dec. 705; Cook v. Parker, Ind. 451, 24 N. E. 249; Burke v. 5 Phila. (Pa.) 265; Ingraham v. Allen, 29 N. H. 106, 61 Am. Dec. Baldwin, 9 N. Y. 45; Arnold v. 642. Richmond Iron Works, 1 Gray 8. Wait v. Maxwell, 5 Pick. (Mass.) 434; Kates v. Woodson, 2 (Mass.) 217, 16 Am. Dec. 391. Dana (Ky. ) 452; Burnham v. Kid- 9. Atwell v. Jenkins, 163 Mas3. well, 113 111. 425; Keil v. Healey, 362, 40 N. E. 178, 28 L. R. A. 694, 84 111. 104, 25 Am. Rep. 434; Scan- 47 Am. St. Rep. 463. Ion V. Cable, 88 III. 291; Riley v. 10. Carter v. Beckwith, 128 N. Carter, 76 Md. 581, 25 A. 667, 19 Y. 312, 28 K E. 582. L. R. A. 489 and note, 35 Am. St. 11. Goodyear v. Adams, 5 N. Y. 24 Ch. 2 INSANE PERSONS. §§ 9, 10 soliitely void/^ and this doctrine finds support in many cases,^' The other line of decisions which hold that a lunatic's dealings, before inquest found, are only voidable, may possibly be re- conciled on the ground, that the contract was made in good faith, and without knowledge, either actual or constructive, on the part of the party contracting with the lunatic. This con- flict of authority may be reconciled by the determination of the question whether or not the contract is executed under condi- tions in which the law presumes sanity or insanity. § 10. Restoration of reason. — After a person has been ad- judged insane and sent to an asylum and then discharged as sane, any contract entered into by him tliereafter is valid with- out any adjudication by the proper court that such person has been restored to reason.^ And so if a person has been adjudged insane, but no conservator has been appointed, and he still manages his business, no appearance of insanity, his con- tracts are valid, provided they are fair and reasonable, the other party having no notice of his insanity or of the court proceed- ings against him.^ And if the guardianship has been abandoned, though the party has not been restored to his rights by the proper court, his contract, if fair, will be enforced, provided his reason has been restored.^ Supp. 275, 119 N. Y. 650. See, also, Henry v. Fine, 23 Ark. 417; Lin- Van Dusen v. Sweet, 51 N. Y. 497; coin v. Buekmaster, 15 Wall. (U. Valentine v. Lunt, 115 N. Y. 497, S.) 9; Refining Co. v. McMahon, 38 22 N. E. 209; Riggs v. Society, 95 N. J. L. 537. See Contracts of N. Y. 503. Lunatics, 17 Law Quarterly Review, 12. Westerfield v. Jackson. 41 147. Hun (X. Y.) 645. 1. Topeka Water Supply Co. v. 13. Beavan v. McDonnell, 9 Root, 56 Kan. 187, 42 P. 715. Exch. 309; Gore v. Gibson, 13 Mees. 2. McCormick v. Littler, 85 111. & W. 623; Johnson v. Stone, 35 62, 28 Am. Rep. 610. Hun (N. Y.) 380, 103 N. Y. 687; 3. Elston v. Jasper, 45 Tex. 409, 25 §§ 10, 11 FREEDOM OF CONTRACT. Ch. 2 But the burden of proving the restoration of reason and the termination or practical abandonment of the guardianship of one insane is upon him who seeks tlie enforcement of a contract against him who pleads insanity.'* And if the party was shown to be sane when he made the contract, his subsequent insanity does not avoid it.^ § II. Necessaries. — While an insane person cannot bind him- self by express contract, yet the contracts created by law are binding on him. The law implies a contract on his part to pay for necessaries furnished him, and services rendered in good faith and under circumstances justifying their being furnished or rendered, and his estate will be bound for them.^ He is liable for necessaries furnished his family,^ and even for luxuries furnished in good faith.^ If the party has been judged insane and a guardian appointed, he is still liable for neces- saries,^ but if he is already sufficiently supplied with any neces- saries, he should not be liable for a further supply of the same kind.^ But if necessaries are furnished in good faith, and under circumstances justifying their being so furnished, the person furnishing may recover. The insane man stands in the same position as minors, and is liable for necessaries. And this 4. Elston V. Jasper, 45 Tex. 409. Thompson, 16 Pick. (Mass.) 198, See, also, Searle v. Galbiaith, 73 26 Am. Dec. 655; Searles v. Pipkin, 111. 269; McGinnis v. Common- 69 N. Car. 513. wealth, 74 Pa. St. 245. Compare 2. Read v. Legard, 6 Exch. 636. Redden v. Baker, 86 Ind. 191; 3. Kendall v. May, 10 Allen Kiehne V. Wessell, 53 Mo. App. 667. (Mass.) 59. 5. Sands v. Potter, 59 111. App. 4. Reando v. Misplay, 90 Mo. 251, 206. 2 S. W. 405, 59 Am. Rep. 13; Mc- 1. Williams v. Wentworth, 5 Crellis v. Bartlett, 8 N. H. 569; Beav. 325; Van Horn v. Hann, 39 Baxter v. Portsmouth, 5 Barn. & N. J. L. 207; McCormick v. Littler, Cr. 170. 85 111. 62, 28 Am. Rep. 610; Sceva 5. Phillips on Lunatics, 17. V. True, 53 N. H. 627; Shaw v. 26 Ch. 2 INSANE PERSONS. §§ 11,12 rule is applicable though a guardian has been appointed, as the law implies a promise to pay for necessaries. The estate of the insane is legally and equitably liable for necessaries fur- nished in good faith and under circumstances justifying their being furnished,^ and when furnished to the insane man or his family and not to a third person.''' When another promises in writing to pay for necessaries for an insane person, or makes an original contract for them, the insane person's estate is not liable for the necessaries.^ § 12. After inquisition and finding of lunacy. — At common law an inquisition finding one a lunatic upon a writ of de lunatico inquirendo, was evidence of his lunacy as to all and any collateral proceedings ; all his contracts thereafter were void and not voidable.^ And this rule has been adopted by many States, and all contracts of an insane person after finding of lunacy and the appointing of a guardian, are absolutely void.^ And under such a law in many States the appointment 6. Fruitt V. Anderson, 12 111. App. 421; La Rue v. Gilkyson, 4 Pa. St. 375, 45 Am. Dec. 700; Pearl V. McDowell, 3 J. J. Marsh. (Ky.) 658, 20 Am. Dec. 199; Sawyer v. Lufkin, 5C) Me. 308. 7. Massachusetts General Hospi- tal V. Fairbanks, 132 Mass. 414. 8. Massachusetts General Hospi- tal V. Fairbanks, 129 Mass. 78, 37 Am. Rep. 303. See, also. Forester V. Fuller, 6 Mass. 58, 4 Am. Dec. 87; Somes v. Beaver, 1 Pick. (Mass.) 314. 1. Wait V. Maxwell, 5 Pick. (IVIass.) 217, 16 Am. Dec. 391. 2. Copenrath v. Kienly, 83 Ind. 18; German Sav. and L. Asso. v. DeLashmutt, 67 Fed. Rep. 399; Leonard v. Leonard, 14 Pick. (Mass.) 280; Mohr v. Tulip, 40 Wis. 66; New England, etc., Co. v. Spitler, 54 Kan. 560, 38 P. 799; Griswold v. Butler, 3 Conn. 227; Maloney v. Dewey, 127 111. 395, 19 N. E. 848, 11 Am. St. Rep. 131; Pearl v. McDowell, 3 J. J. Marsh. (Ky.) 658, 20 Am. Dec. 199; White V. Palmer, 4 Mass. 147; Ingraham V. Baldwin, 9 N. Y. 45; Wilcox v. Fitzhugh, 12 Barb. (N. Y.) 235; Compare Yanger v. Spinner, 1 Me- Carter (N. J.) 389; Lancaster Bank v. Wood, 78 Pa. St. 407, 21 Am. St. Rep. 24 and note. 27 § 12 FREEDOM OF CONTRACT. Oh. 2^ of a guardian is conclusive.^ This rule applies to drunkards who are incapable of taking care of their property.^ Putting a party in control of a guardian, is in the nature of a commission on the writ de Iwiaiico inquirendo.^ The assent of the guardian to the lunatic's deed, does not validate it.^ After inquest and judgment of hmacj, the disability of the ward is conclusive; and it is immaterial from what cause his insanity resulted, whether from old age, sickness, habitual drunkenness, or other causes whatever.'^ So long as the guardianship continues the decree is regarded as conclusive on the question of the ward's sanity, on the ground that the decree fixed the w^ard's status as to all the world, and because it might greatly embarrass the execution of his trust if the guardian could be compelled to try the question of his ward's sanity in every action for or against him.^ But when the guardianship has terminated, and a controversy has arisen between third parties, one of whom claims under a contract made with the ward after the termination of the guardianship, the reason ceases for holding the decree conclusive.^ And the discharge of a patient from a lunatic asylum may be regarded as evidence of recovery. ^*^ 3. Wadsworth v. Sherman, 14 32 111. App. 521; Behrensmeyer v. Barb. (N. Y.) 169; Leonard v. Kreitz, 135 111. 638, 26 N. E. 704; Leonard, 14 Pick. (Mass.) 280; Hicks v. Chapman, 10 Allen White V. Palmer, 4 Mass. 147; Mc- (Mass.) 463. Donald v. Morton, 1 Mass. 543. 7. Rannells v. Gerner, 80 Mo. 4. Wadsworth v. Sherman, 14 474. Barb. (N. Y.) 169. 8. White v. Palmer, 4 Mass. 147; 5. Inhoff V. Witmer, 31 Pa. St. Leonard v. Leonard, 14 Pick. 243; Ex parte Crammer, 12 Ves. (Mass.) 280; Legat v. Clark, 111 445; Barker's Case, 2 Johns. Ch. Mass. 308, 310. (N. Y.) 232; Gibson v. Jeyes, 6 9. Willworth v. Leonard, 156 Ves. 273; Ridgeway v. Darwin, 8 Mass. 277, 31 N. E. 299. Ves. 65. 10. Langdon v. People, 133 111. 6. Griswold v. Butler, 3 Conn. 382, 24 N. E. 874. 231. See, also, Huling v. Huling, 28 Ch. 2 INSANE PERSONS. §§ 12, 13 In some of the States, under a statute, a court may send a party to an insane asylum for treatment, and this does not dis- qualify him from making contracts." And though a party is under guardianship, he is still liable for necessaries.^^ § 13. Marriage — Insanity of party. — The capacity to make a legal marriage contract does not differ from any other con- tract. If the capacity be such tliat the party is incapable of understanding the nature of the contract itself, and incapable from mental imbecility of taking care of his or her OAvn person or property, such an individual cannot dispose of his or her person and property by a matrimonial contract any more than by any other contract.^ Hence^ a marriage is void if, at the time it takes place, the husband had not sound mental capacity to enable him to understand the nature of the marriage con- tract and of the marital relations, and the understanding that he took upon himself duties, obligations and responsibilities of that relation. The rule of competency does not require that he shall understand all the marital duties and obligations, but re- quires that he shall understand that he assumes them whatever they may be.^ And the law is, in the absence of any statutory provisions to the contrary, that it is not required to go into court to annul a marriage which has no existence, but is absolutely void ah initio, and its invalidity may be shown in a proceed- ing in any court whenever the question arises collaterally.^ 11. Knox V. Haug, 48 Minn. 58, 574, 26 A. 837; Browning v. Reane, 50 N. W. 934. 2 Phillim. 70. 12. Lilly V. Wagoner, 27 111. 2. St. George v. Biddeford, 76 395; McCormick v. Littler, 85 111. Me. 593; Atkinson v. Medford, 62, 28 Am. Rep. 610; Burnham v. 46 Me. 510; Cole v. Cole, I Kidwell, 113 111. 425; Sawyer v. Sneed (Tenn.) 57; Unity v. Bel- Lufkin, 56 Me. 308; Reando v. Mis- grade, 76 Me. 419; Middleboro v. play, 90 Mo. 251, 2 S. W. 405, 15 Rochester, 12 Mass. 363. Am. Rep. 13. 3. Gathings v. Williams, 5 Ired. 1. Kern v. Kern, 51 N. J. Eq. (N. Car.) 487; Schouler on Dom. 29 13, 14 FREEDOM OF CONTRACT. Ch. 2 The mere fact of insanity without more evidence is not suffi- cient ground to annul a marriage contract.* In most of the States statutory provisions are made so that a judicial proceed- ing is necessary to annul a marriage, and hence a void mar riage cannot be attacked in a collateral proceeding.^ § 14. Bills and notes of insane persons. — When the payee of a promissory note has notice of the maker's insanity, he can- not recover on the note, though the consideration was for neces- saries ; but the amount may be collected from the estate.^ But where one in good faith takes a note signed by a person of whose incompetency to do business he has no notice, and in a transac- tion which is not likely to call his attention to it, he can recover on the note.^ In a suit by an indorser of a promissory note made by a lunatic, the latter may defend on the ground that the indorser Eel. 24; Atkinson v. Medford, 46 Me. 510. 4. Concord v. Rumsey, 45 N. H. 423. • 5. State V. Setzer, 97 N. Car. 252, 1 S. E. 558, 2 Am. St. Kep. 290; Wiser v. Lockwood, 42 Vt. 720; Jenkins v. Jenkins, 2 Dana (Ky.) 102, 26 Am. Dec. 437; Way- meer v. Jetmore, 22 Ohio St. 291; Powell V. Powell, 18 Kan. 371, 26 Am. Eep. 774. 1. Milligan v. Pollard, 112 Ala. 465, 20 So. 620 ; Davis v. Tarver, 65 Ala. 98. See, also, McLain v. Davis, 77 Ind. 419; Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372. 2. Hosier v. Beard, 54 Ohio St. 398, 43 N. E. 1040, 35 L. R|. A. 161 and note, 56 Am. St. Dec. 720; Nace V. Boyer, 30 Pa. St. 99; Wilder v. Weakley, 34 Ind. 181; Henderson v. McGregor, 30 Wis. 78 ; Alexander v. Haskins, 68 Iowa, 73, 25 N. W. 935; Young v. Stevens, 48 N. H. 133, 97 Am. Dec. 592; Kaggan v. Oreen, 80 N. Car. 236, 30 Am. Rep. 77; National Bank v. Moore, 78 Pa. St. 407, 21 Am. Rep. 24 and note; Mutual L. Ins. Co. v. Hunt, 79 N. Y. 541; Shoulters v. Allen, 51 Mich. 529, IG N. W. 888; Loomis V. Spencer, 2 Paige (N. Y. ) 153; Burnham v. Kidwell, 113 III. 425; Canfield v. Fairbanks, 63 Barb. (N. Y.) 461; Physio-Med. College v. Wilkinson, 108 Ind. 315, 9 N. E. 376; Matthieson v. McMahon, 38 K J. L. 536; Gibben v. Maxwell, 34 Kan. 8, 7 P. 584, 55 Am. Rep. 233; Behrens v. McKenzie, 23 Iowa, 30 Ch. 2 INSANE PERSONS. §§ 14, 15 had knowledge of the maker's lunacy, or that the note was ob- tained by fraud or without proper consideration.^ And an accommodation indorser of a promissory note, who receives no benefit therefrom either to himself or his estate, may defend against a bona fide holder on the ground that he was non compos mentis at the time of the indorsement; and this though the holder at the time of the transfer to him had no knowledge of the indorser's insanity.* § 15. Partnership. — Whether the insanity of a party dis- solves a partnership of which he is a partner is not answered the same. In many States the insanity dissolves the partner- ship without any decree of court, as it is held to be a dissolution by operation of law ; and as it is an event over which the parties have no control, no notice of such a dissolution is necessary. Thus, the death, bankruptcy or lunacy of one of the partners dissolves the contract.^ That is to say, an inquisition of lunacy against a member of a partnership dissolves ipso facto the partnership.^ But the rule is suiDported by the great weight of authority that the insanity of a partner does not, per se, dissolve a partnership, but may constitute a sufficient ground to justify a court of equity in decreeing its dissolution. This is the true doctrine and is applied by courts of equity with ap- propriate limitations and restrictions, for while curable, tempo- rary insanity will be sufficient, upon inquisition, to sustain an adjudication of insanity in the proper court, the appointment of a conservator and commitment of the ward to an insane asylum, 333, 92 Am. Dec. 28 ; Scanlan v. tional Bank v. Sneed, 97 Tenn. 120, Coble, 85 111. 296. 36 S. W. 716, 34 L. R. A. 274 and 3. Moore v. Hershey, 90 Pa. St. note, 56 Am. St. Eep. 788. 196. 1. Griswold v. Waddington, 15 4. Mirebach v. Bank, 97 Pa. St. Johns. (X. Y.) 57. 543, 39 Am. Rep. 821; Vores v. 2. Isler v. Baker, 6 Humph. Harshbayer, 11 Ind. App. 555, 39 (Tenn.) 85. See, also, Davis v. N. E. 521; Compare Memphis Na- Lane, 10 N. H. 156. 31 § 15 FREEDOM OF CONTEACT. Ch. 2 yet it will not authorize a court of chancery to decree dissolution of partnership if the malady be temporary only, with a fair pros]3ect of recovery within a reasonable time.^ When a partner is affected with insanity, the continuing partner may, if he thinks fit, make it a ground of dissolution, but generally in order to make it a ground of dissolution he must obtain a decree of court ;^ if it be a partnership at will, the sane partner may dissolve the partnership of his own volition.^ Insanity does not work a dissolution of partnership ipso facto. Courts of equity will, as between partners, look to the effect produced upon the partnership relations and business, and refuse to dissolve the partnership and apply its assets unless the insanity materially affects the capacity of the partner to dis- charge the duties imposed by his contract relations.® A decree of a court of chancery is necessary to a dissolution of partner- ship, notwithstanding there has been an adjudication declaring one partner a lunatic/ The better rule is that where, after one of the partners had been adjudged insane, but his insanity was considered only temporary and curable, and the continuing partner without ob- jection, or notice to any one, still carried on the business pre- cisely as before, the presumption is that he does not intend a dissolution of the firm, and, in the absence of evidence to the contrary, that he waits to determine whether the incapacity of 3. Story on Part. 297; Jones v. 5. Raymond v. Vaughn, 128 111. Noy, 2 Mylne & K. 125; Doughty 256, 21 N. E. 556, 4 L. R. A. 440, V. Doughty, 3 Hals. (N. J. Ch.) 15 Am. St. Rep. 112. See, also, Mc- 227; Uberoth v. Bank, 9 Phila. Elroy v. Lewis, 76 N. Y. 373; Carl- (Pa.) 83. ton v. Cummings, 51 Ind. 478; 4. Raymond v. Vaughn, 128 111. Lawrence v. Robinson, 4 Colo. 567. 256, 21 N. E. 566, 4 L. R. A. 440, 6. 3 Kent's Com. 58. 15 Am. St. Rep. 112. See, also, 7. 2 Collier on Part., ch. 3, sec. Bagshaw v. Parker, 10 Beav. 532; 3; Gow on Part., ch. 5, sec. 1. Robertson v. Lockie, 15 Sim. 285; Compare Parson on Cont., 484. Pierce v. Chamberlain, 2 Ves. Sr. 33. 32 Ch. 2 INSANE I'EKSONS. §§ 15^ 16 his partner will prove temporary merely, and it becomes prac- ticable for him to resume business.^ In such case, as long as the sane partner continues to carry on the business without taking steps to dissolve the partnership, there can be no dissolu- tion, or he be excused from afterwards accounting for the profits actually derived by hira from the business of the firm.^ An insane person cannot be adjudicated a bankrupt, but a partnership, of which he is a partner can be, and the firm's prop- erty applied to the partnership debts. ^® § 1 6. Life insurance — No suicide clause in policy In many life insurance policies a clause is inserted that the insured shall not recover on the policy if he commits suicide. This question brings in the question of the sanity of the insured at the time of the suicide. The adjudged cases are conflicting. It has been held that suicide will avoid a policy, although there are no conditions to that effect in the policy.^ Of course, if the insured obtained the insurance with the intent to com- mit suicide, while sane, this changes the rule and the policy will be void.^ This doctrine is qualified by stating that the 8. Raymond v. Vaughn, 128 111. also, Cook v. Collingridge. 1 Jac. 256, 121 N. E. 556, 4 L. R. A. 440, 608; White v. Gardner, 37 Tex. 15 Am. St. Rep. 112; Jones v. Noy, 407;Chaney v. Smallwood, 1 Gill. 2 Mylne & K. 125; Berch v. Frolick, (Md.) 367; Cranshay v. Collins, 15 1 Phil. 172, 3 Kent's Com. 58; Ves. 218. Pierce v. Chamberlain, 2 Ves. Sr. 10. In re Stein, 127 Fed. Rep. 33; Bagshaw v. Parker, 10 Beav. 29. 532; Robertson v. Loekie, 15 Sim. 1. Hartman v. Ins. Co., 21 Pa. 285; Uberoth v. Bank, 9 Phila. St. 466; Horn v. Ins. Co., 30 L. J. (Pa.) 83; Doughty v. Doughty, 3 Ch. 511, 4 L. T. N. S. 142; Supreme Hals. (N. J. Ch.) 227. Comandery v. Ainsworth, 71 Ala. 9. Raymond v. Vaughn, 128 111. 436, 46 Am. Rep, 332. See, also, 256, 21 N. E. 556, 4 L. R. A. 440, Hatch v. Ins. Co., 120 Mass. 550, 15 Am. St. Rep. 112;. Brown v. 21 Am. Rep. 541 and note. Richardson, 133 Mass. 293; Free- 2. Smith v. Benefit Soc, 51 Hun man v. Freeman, 136 Mass. 260; (N. Y.) 57, 4 N. Y. S. 531; Ritter Perry on Trusts, 127, 128. See, 33 §§ 16, 17 FBEEDOM OF CONTKACT. Ch. 2 suicide must be felonious and not accidental, and the party must not be insane. This qualified application will not allow the policy to be avoided when the condition, exists.^ And if the insurance is for the benefit of another, suicide is no defense unless the policy provides for avoidance in case of suicide.* When a policy is taken out by a person whose life is insured, and the policy is made payable to himself, his executors, ad- ministrators, or assigns, and provides for the payment of the sum stipulated if the insured took his life while sane, the policy is void as against public policy.*^ § 17. Life insurance — Impulsive insanity. — That form of insanity called impulsive insanity, by which a person is irre- sistibly impelled to the commission of an act, is recognized by medical writers on this subject.® It is sometimes accompanied by delusions, and sometimes exists without them. It is an im- pulse of a party of unsound mind. The cases are to be dis- tinguished from those where persons in the possession of their reasoning faculties are impelled by passion, merely, in the same direction. These last are not insanity, and suicide committed under such conditions will avoid a policy with the suicide clause. The true test lies in the word power. The policy is avoided, unless his mind is so impaired that he does not understand the consequences of his action, and that death would ensue. If he V. Insurance Co., 169 U. S. 139, 18 5. Ritter v. Insurance Co., 169 S. Ct. 300. U. S. 139, 18 S. Ct. 300. 3. Horn v. Ins. Ca., 30 L. J, Ch. 6. Borradaile v. Hunter, 5 Man. 511, 4 L. T. N. S. 142. & Gr. 639; Dean v. Ins. Co., 4 Allen 4. Darrow v. Family Fund Soc, (Mass.) 96; Newton v. Ins. Co., 76 116 N. Y. 531, 22 N. E. 1093, 15 N. Y. 426, 32 Am. Rep. 335; Schef- Am. St. Rep. 430 ; Kerr v. Benefit fer v. Ins. Co., 25 Minn. 534 ; Amer- Asso., 39 Minn. 174, 39 N. W. 312, ican Life Ins. Co. v. Isett, 74 Pa. 12 Am. St. Rep. 631; Fitch v. Ins. St. 176; Manhattan Life Ins. Co. v. Co., 59 N. Y. 557, 17 Am. Rep. 372; Broughton, 109 U. S. 121, 3 S. Ct. Morris v. Assurance Co., 183 Pa. 131. St. 563, 39 A. 52. 34 Ch. 2 INSANE PERSONS. §§ 17, 18 exercises volition, is capable of forming an intention and with full knowledge that death will follow his action, his mind con- curring in the act, he voluntarily destroys his own life, and the policy with a suicide clause, becomes null and voidJ § 1 8. The question of right and wrong — English doctrine. — The English doctrine is that all the contract requires is, that the act of self-destruction shall be the voluntary and willful act of a man having at the time sufficient powers of mind and reason to understand the physical nature and consequences of such act of suicide, and having at the time a purpose and intention to cause his own death by that act, and the question whether at the time he was capable of understanding the moral nature and quality of his purpose, is not relevant to the inquiry further than as it might help to illustrate the extent of his capacity to understand the physical character of the act itself.^ That is, the terms of the condition include all acts of voluntary self-de- struction ; whether the party is a voluntary moral agent, is not in issue. ^ The English judges refuse to apply to the act of the insured in causing his death the principles of legal and moral responsi- bility recognized in cases where the contract, the last will, or the alleged crime of such person may be in issue. This English rule has been adopted by four of the States.^ 7. Weed v. Ins. Co., 70 N. Y. 3. Mecham v. Ins. Co., 120 N. Y. 561. 237, 24 N. E. 283; Weed v. Ins. Co., 1. Borradaile v. Hunter, 5 Man. 70 N. Y. 561; Dean v. Ins. Co., 4 & Gr. 639; Bayley v. Alexander, Allen (Mass.) 96; Cooper v. Ins. cited in Biddle on Ins., 832. Co., 102 Mass. 227, 3 Am. Rep. 451 2. Clift V. Schwabe, 3 C. B. 437; and note; Gay v. Ins. Co., 9 Blatch. White V. Ins. Co., 38 L. J. Ch. 53; C. C. 142; Nimiek v. Ins. Co., 10 Dufaur v. Assurance Co., 25 Beav. Am. L. Reg. N. S. 102. See, also. 599; Stormont v. Assurance Co., 1 St. Louis Life Ins. Co. v. Graves, 6 Fost. & F. 22. Bush (Ky.) 268; Knickerbocker L. Ins. Co. V. Peters, 42 Md. 414. 35 § 19 FREEDOM OF CONTRACT. Ch. 2 § 19. American doctrine — The American doctrine, when the policy contains a suicide clause, is that if the assured, being in possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, in- tentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the insured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral char- acter, the general nature, consequences, and effect of the act he is about to commit, which he has not the power to resist, such death is not within the contemplation of the parties to the con- tract, and the insurer is liable.^ It is the established doctrine of most of the American courts that if one whose life is insured in- tentionally kills himself when his reasoning faculties are so im- paired by insanity that he is unable to understand the moral character of his act, even if he does understand its physical nature, consequence, and effect, it is not " suicide " or " self- destiiiction," or " dying by his own hand," within the meaning of those words in a clause excepting risks out of the policy, and containing no further words expressly extending the exception to such cases.^ The clauses used are various in form, but are considered sy- nonymously and mean the same thing, whether described by words of Saxon or of Latin origin, or partly of one and partly 1. Mutual Life Ins. Co. v. Terry, dent Ins. Co. v. Crandel, 120 U. S. 15 Wall. (U. S.) 580. This case is 527, 7 S. Ct. 685; Connecticut Life distinguished in Ritter v. Ins. Co., Ins. Co. v. Akens, 150 U. S. 468, 14 169 U. S. 139, 18 S. Ct. 300. S. Ct. 155; Supreme Commandery 2. Bigelow V. Ins. Co., 93 U. S. v. Ainsworth, 71 Ala. 436, 46 Am. 284; Insurance Co. v. Rodel, 95 U. Rep. 332; Life Asso. v. Waller, 57 S. 232; Manhattan Ins. Co. v. Ga. 533; New Home L. Asso. v. Broughton, 109 U. S. 121, 3 S. Ct. Hagler, 29 111. App. 437; Scarth v. 99 ; Connecticut Ins. Co. v. Lathrop, Ins. Co., 75 Iowa, 346, 39 N. W. Ill U. &. 612, 4 S. Ct. 533; Acci- 658; Michigan Mut. L. Ins. Co. v. 36 Ch. 2 INSANE I'EltJSONS. §§ 10, 20 of the other.^ TTpon that part of the clause which requires " proof that the same is the direct result of disease or of acci- dent occurring without the voluntary act of the insured," the word " proof " means, not the proof required as a preliminary to bringing suit on the policy, but the proof necessary to estab- lish the liability of the insurer. And in making out such proof, the plaintiff is entitled tO' the benefit of the presumption that a sane man will not commit suicide, and of other rules of law establislied for the guidance of courts and juries in the investi- gation and determination of facts.^ § 2o. "Die by suicide, sane or insane." — Formerly policies provided, generally, that they should be void in case of death by " suicide," or '' by one's own hand," without further quali- fications. These terms are synonymous and convey the same idea. And in the United States such a condition refers to an act of criminal self-destruction, and does not apply to an insane person.^ So now insurance companies adopt a more specific condition as to liability in cases of death by suicide, and add in the suicide clause " die by suicide, sane or insane." This clause has been before the courts for construction, and it is gen- erally held that the insurers are not liable if the insured design- edly dies by his own hand, that is, if he commits the act inten- Naugle, 130 Ind. 79, 29 N. E. 393; v. Walden (Tex. Civ.) 26 S. W. Phillips V. Ins. Co., 26 La. Ann. Rep. 1012. 404, 21 Am. Rep. 549; Eastabrook 3. Connecticut L. Ins. Co. v. V. Ins. Co., 54 Me. 224, 89 Am. Dec. Akens, 150 U. S. 468, 14 S. Ct. 743 ; John Hancock L. Ins. Co. v. 155. Moore, 34 Mich. 41; Sclieffer v. Ins. 4. Travellers' Ins. Co. V. McKon- Co., 25 Minn. 534; Schultz v. Ins. key, 127 U. S. 661, 667, 8 S. Ct. Co., 40 Ohio St. 217, 48 Am. Rep. 1370; Home Ben. Asso. v. Sargent, 676; Connecticut Mut. L. Ins. Co. v. 142 U. S. 691, 12 S. Ct. 332. Groom, 86 Pa. St. 92, 27 Am. Rep. 1. Scheffer v. Ins. Co., 25 Minn. 689 ; Phadenhauer v. Ins. Co., 7 534 ; Eastabrook v. Ins. Co., 54 Me. Heisk (Tenn.) 567, 19 Am. Rep. 224, 89 Am. Dec. 743; Scarth v. 623 and note; Mutual L. Ins. Co. Ins. Co., 75 Iowa, 346, 39 N. W. 658. 37 20 FREEDOM OF CONTRACT. Ch. 2 tionally with knowledge of its consequences, although uncon- scious of its criminal character. And the doctrine of some of the States goes further and holds that the policy is void not- withstanding the self-destruction is accomplished at a time when the insured is wholly unconscious of the act.^ But it is held by some courts that the act of the insured must be voluntary and intentional, although he may at the time be incapable of discerning its moral quality.^ Of course where the death is accidental the death does not come within the clause. The clause was never intended to include death by accident, as by taking poison by mistake, the accidental discharge of a gun or pistol held in the hands of the insured.^ It generally means all suicidal acts, whether such are denominated as criminal, or such as arise from insanity, and as to the matter of proof, sui- cide itself and nothing more, is not suflScient to prove insanity." 2. Streeter v. Life and Accident Soc, 65 Mich. 199, 31 N. W. 779; Salentine v. Ins. Co., 24 Fed. 159; Riley v. Ins. Co., 25 Fed. Rep. 315; Penfold V. Ins. Co., 85 N. Y. 317, 39 Am. Rep. G60; Scarth v. Ins. Co., 75 Iowa, 346, 39 N. W. 658; Billings V. Ins. Co., 64 Vt. 78, 24 A. 656, 17 L. R. A. 89 and note, 33 Am. St. Rep. 913; DeGogorza v. Ins. Co., 65 N. Y. 232; Bigelow v. Ins. Co., 93 U. S. 284 ; Chapman v. Ins. Co., 6 Biss. C. C. 238; Dennis V. rns. Co., 84 Cal. 570, 24 P. 120. 3. Sabin v. Nat. Union, 90 Mich. 177, 51 N. W. 202; Adkins v. Ins. Co., 70 Mo. 27, 35 Am. Rep. 410; Pierce v. Ins. Co., 34 Wis. 389; Suppiger v. Ins. Co., 20 111. App. 595; Mutual Ben. L. Ins. Co. v. Davies, 87 Ky. 541, 9 S. W. 812; Northwestern Mut. L. Ins. Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192. 4. Michigan Mut. L. Ins. Co. v. Naugle, 130 Ind. 79, 29 N. E. 393; Scarth v. Ins. Co., 75 Iowa, 346, 39 N. W. 658; Billings v. Ins. Co., 64 Vt. 78, 24 A. 656, 17 L. R. A. 89 and note; Home Benefit Asso. v. Sargent, 142 U. S. 691, 12 S. Ct. 332; Pierce v. Ins. Co., 34 Wis. 389; Penfold v. Ins. Co., 85 N. Y. 317, 39 Am. Rep. 660; Northwestern Mut. L. Ins. Co. V. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192. See, also. Pollock v. Acci. Asso. 102 Pa. St. 230, 48 Am. Rep. 204. 5. Merritt v. Ins. Co., 55 Ga. 103; Mutual Benefit L. Ins. Co. v. Davies, 85 Ky. 541, 9 S. W. 812; Blackstone v. Ins. Co., 74 Mich. 592, 42 N. W. 156; Weed v. Ins. Co., 70 N. Y. 561 ; Meacham v. Ins. Co., 120 N. Y. 237, 24 N. E. 283; Pendenhaur v. Ins. Co., 7 Hiesk. (Tenn.) 567; Knickerbocker Ins. Co. V. Peters, 42 Md. 414. 38 Ch. 2 INSANE PERSONS. § 21 ARTICLE II. Ratification and Disaffirmance. Section 21. Affirmance and Avoidance of Contracts. 22. Bona Fide Purchaser from Insane Person. 23. Return of Consideration. 24. Bona Fide Grantee of the Grantee of the Lunatic — Rights of Third Parties. 25. Relief in Equity. § 21. Affirmance and avoidance of contracts. — A deed made in proper form, executed and recorded, is equivalent to a feoff- ment with liverj of seisin.^ Without the registry, where the de- livery of the deed is accompanied by the surrender of the pos- session of the conveyed premises to the grantee, the effect would be the same, as to the conveyance by a man non compos mentis, as would result from a feoffment made by him. A deed of bar- gain and sale places the grantee upon the footing of a feoffment, as it passes the estate by the delivery of the land ; such grants or deeds as take effect by delivery of the land being only voidable.^ Therefore, an insane man's deed is only voidable and not void, and may be ratified by him when he is of sane mind, whether the deed is recorded or not.^ So a person of full age, who has been insane may, after he has sufficiently recovered his rea- son to understand the character of his act, disaffirm his deed made by him while he was insane and incapable to contract,* and he may proceed in a court of equity to rescind.^ 1. Somes V. Brewer, 2 Pick. Wall. (U. S.) 20; Henry v. Fine, (Mass.) 197; Riley v. Carter, 76 23 Ark. 417 ; Betts v. Carroll, 6 Mo. Md. 581, 25 A. 667, 19 L. R. A. 489 App. 518; Schuflf v. Rawson, 79 and note, 37 Am. St. Rep. 443. Ind. 458; Boyer v. Berryman, 123 2. Somes v. Brewer, 2 Pick. Ind. 451, 24 N. E. 249; Ashmead v. (Mass.) 197. Reynolds, 127 Ind. 441, 26 X. E. 3. Allis V. Billings, 6 Met. 80; Gibson v. Soper, 6 Gray (Mass.) 415, 39 Am. Dee. 744 and (Mass.) 279, 66 Am. Dec. 414; note. Burnham v. Kidwell, 113 111. 425; 4. Tolson V. Garner, 15 Mo. 494; Turner v. Rusk, 53 Md. 65. Farley v. Parker, 6 Oreg. 105, 25 5. Turner v. Rusk, 53 Md. 65. Am. Rep. 504; Dexter v. Hall, 15 39 §21 FREEDOM OF CONTRACT. Ch. 2 And an exchange of property made bj a person of mind so insane that the want of mental capacity is apparent to any one of ordinary prudence and observation conversing with him, is voidable, and his guardian may rescind the deed.^ After the death of the insane person, his personal representatives or heirs may rescind.' And this right to affirm or avoid is personal to the insane person and his legal representatives, and cannot be taken advantage of by the other party or by a third person.^ And ratification or avoidance may be by action, by express words or by suit.^ A deed may be ratified by acts of acquiescence after the disability is removed ; but the acts of confirmation to es- tablish the deed, must show an intention to confirm it, and some courts say with knowledge of its character and that it is void- able.i" In the absence of statutory provisions, a voidable deed may be ratified by long acquiescence, and by permitting the grantee to do acts by which his condition is changed, and which will prejudice him if the deed is set aside. The difference between a void and a voidable deed as defined in the law, is that the former cannot be ratified by acquiescence short of the statutory limitations, while the latter may be, by time and circumstance, within such limitations." Any distinct and decisive act of requisition as a valid and subsisting contract, is competent evi- 6. Allis V. Billings, 6 Met. Sears, 4 Allen (Mass.) 336, 81 Am. (Mass.) 415, 39 Am. Dec. 744 and Dec. 707; Compare Burke v. Allen, note; Halley v. Troester, 72 Mo. 29 N. H. 106, 61 Am. Dec. 642. 73; Valpey v. Rea, 130 Mass. 384; 9. Ashmead v. Reynolds, 127 Ind. McClain v. Davis, 77 Ind. 419. 441, 26 N. E. 80; Gibson v. Soper, 7. Hovey v. Hobson, 53 Me. 451, 6 Gray (Mass.) 283. 89 Am. Dec. 705; Schuff v. Rawson, 10. Eaton v. Eaton, 37 N. J. L. 79 Ind. 458; Campbell v. Kiihn, 45 108, 18 Am. Rep. 716; Tucker v. Mich. 513, 8 N. 523, 40 Am. Rep. Moreland, 10 Pet. (U. S.) 64. 479; Valpey v. Rea, 130 Mass. 384. 11. Eaton v. Eaton, 37 N. J. L. 8. Allen v. Berryhill, 27 Iowa, 108, 18 Am. Rep. 716. 534, 1 Am. Rep. 309; Carrier v. 40 Oh. 2 INSANE PERSONS. §§ 21, 22 dence of ratification. A new delivery of a deed is not requisite as it would be if the deed of an insane person was void.^- § 22. Bona fide purchaser from insane person. — When the contract is executed it is held by many American courts, if not by a majority of them, that the insane party when of sound mind, may avoid it, though it be fair and reasonable, and the otlier party acted in a ho7ia fide manner, and the parties cannot be placed in statu quo. Because to say that an insane man, be- fore he can avoid his deed, must put the grantee la statu quo, would be to say in effect in most cases that his deed shall not be avoided at all. The more insane the grantor was when the de^d was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater. This view of the case is certainly sound.^ Of course, all the courts agree where fraud is know- ingly practiced upon the insane grantor that he may avoid without placing the grantee in statu quo} In England, and by many of the American courts, it is held that where persons apparently of sound mind and not known to be otherwise, enter into a contract which is fair and bona fide, 12. Howe V. Howe, 99 Mass. 98. v. Scovell, 94 Pa. St. 48, 39 Am. See, also, Campbell v. Kuhn, 45 Rep. 766; Somers v. Pumphrey, 24 Mich. 513, 8 N. 523, 40 Am. Rep. Ind. 231; Flanders v. Davis, 19 479; Jones v. Evans, 7 Dana (Ky.) N. H. 139; Chandler v. Simmons, 96; Allis v. Billings, 6 Met. 97 Mass. 508, 514, 93 Am. Dec. 117 (Mass.) 415, 39 Am. Dec. 744 and and note; Brigham v. Fayer- note; Gibson v. Soper, 6 Gray weather, 144 Mass. 48, 10 N. E. (Mass.) 279, 66 Am. Dec. 414. 735; Rogers v. Blackwell, 49 Mich. 1. Simonton v. Bacon, 49 Miss. 192; Seaver v. Phelps, 11 Pick. 582; Brantley v. Wolf, 60 Miss. (Mass.) 304, 22 Am. Dec. 372; 420; Henry v. Fine, 23 Ark. 417; Sullivan v. Flynn. 20 D. C. 396; Gibson v. Soper, 6 Gray (Mass.) Pearl v. McDowell, 3 J. J. Marsh. 279. 66 Am. Dec. 414; Ricketts v. (Ky.) 658, 20 Am. Dec. 199. JolliflF, 62 Miss. 440; Chew v. Bank, 2. Schmidt v. Ittman, 40 La. 14 Md. 318; Hovey v. Hobson, 53 Ann. 888; Elder v. Schumacher, 18 Me. 453: Fitzgerald v. Reed. 9 Colo. 433, 33 P. 175; Alexander v. Smedes & M. (Miss.) 94; Crawford Haskins, 68 Iowa, 73, 25 N. W. 935. 41 §§ 22, 23 FREEDOM OF COXTRACT. Ch. 2 and which is executed and completed, and the property, the sub- ject-matter of the contract, cannot be restored so as to put the parties in statu quo, such contract cannot be set aside either by the lunatic when he becomes sane or those who represent him.^ This doctrine is antagonistic to that held as to infants when avoiding their contracts where they have not the power to re- store the property received. The reason of this distinction is not based upon any solid foundation. Some courts hold that if the insane party has received no benefit from the contract he can rescind, notwithstanding the good faith of the other party, but if he has received the ordinary benefits of such a contract, he is bound.* § 23. Return of consideration. — As seen in the preceding section, the law in England and in many of the States, is an in- sane man on becoming sane cannot avoid his contracts unless he returns the consideration, thus putting the parties in statu quo, provided the other party acted in good faith. But another line of authorities in the United States holds with much reason, that lunatics are not bound by their contracts no more than infants, though no fraud or imposition has been 3. Yanger v. Skinner, 1 McCart. 111. 104; Carr v. Halliday, 5 Ired. (N. J. Ch.) 389; Molton v. Cam- (N. Car.) 67; Young v. Stevens, 48 roux, 2 Exch. 487, 4 Exeh. 17; Ad- N. H. 136; Schaps v. Lehner, 54 dison V. Dawson, 2 Vern. 678; Price Minn. 208, 55 N. W. 911; Shoultera V. Berrington, 3 Macn. & G. 486; v. Allen, 51 Mich. 529, 16 N. W. Myers v. Knabe, 51 Kans. 720, 33 888; Abbott v. Creal, 56 Iowa, 175, P. 602; Eaton v. Eaton, 37 N. J. 9 N. 115; Northwestern Ins. Co. v. L. 108, 18 Am. Kep. 716; Reggan v. Blankenship, 94 Ind. 535, 48 Am. Green, 80 N. Car. 236, 30 Am. Rep. Rep. 185; Ashcraft v. De Armond, 77; Lancaster Co. Bank v. Moore, 44 Iowa, 229; Rusk v. Fenton, 14 78 Pa. St. 407, 21 Am. Rep. 24 and Bush. (Ky.) 490, 29 Am. Rep. 413; note; McCormick v. Littler, 85 111. Sewing Mach. Co. v. Barnard, 43 62; Mutual Life Ins. Co. v. Hunt, Mich. 379, 5 N. 411; Copenrath v. 79 N. Y. 541; Boyer v. Berryman, Kienly, 83 Ind. 18. 123 Ind. 451, 24 N. E. 249; Grib- 4. Van Patton v. Beals, 46 Iowa, ben V. Maxwell, 34 Kans. 8, 55 Am. 63; Lincoln v. Buckmaster, 32 Vt. Rep. 233 ; Leavitt v. Files, 38 Kans. 658. 26, 7 P. 584; Scanlon v. Cobb, 84 42 eh. 2 INSANE PERSONS. §§ 23, 24 practiced upon them, even though the consideration cannot be returned.^ And so an insane person or his guardian may avoid a deed which was made while the grantor was insane, without first re- storing the consideration to the grantee, the deed not having been ratified.^ Accordingly if the party wishes to avoid his con- tract, he need not restore the consideration of an executory con- tract and the party has the notes which were given for the con- sideration, then, in that case, he must restore the notes upon dis- aflSrmance of the contract.^ These cases place the acts of luna- tics and infants upon the same ground as to ratification and avoidance,^ because the grants of infants and persons non compos mentis are parallel both in law and reason.^ And, hence, if the consideration was squandered during insanity, he can disaffirm his contract when restored to sanity and not re- turn the consideration.® § 24. Bona fide grantee of the grantee of the lunatic — Rights of third parties. — A grantee of the grantee of the in- sane party cannot demand the restoration of the consideration when the deed of the first grantor is disaffirmed.'^ The last grantee must rely on the covenants of his deed for restitution, and it is not necessary that he shall be placed in statu quo by the first grantor when the deed is disaffirmed. It is said that the right of an insane person to avoid his contracts is an ab- solute and paramount right, superior to all equities of other 1. Chew V. Bank, 14 Md. 318; 5. Thompson v. Leach, 3 Mod. Hovey v. Hobson, 53 Me. 451, 89 310. Am. Dec. 705. 6. Rea v. Bishop, 41 Neb. 202, 2. Gibson v. Soper, 6 Gray 59 N. W. 555; Ricketts v. Jolliffe, (Mass.), 279, 66 Am. Dec. 414; 62 Miss. 440; Brigham v. Fayer- Arnold v. Richmond Iron Works, 1 weather, 144 Mass. 48, 10 N. E. Gray (Mass.), 434; Hovey v. Hob- 735: Crawford v. Scovell, 94 Pa. St. son, 53 Me. 451, 89 Am. Dec. 705. 48, 39 Am. Rep. 766; Sullivan v. 3. Arnold v. Richmond Iron Flynn. 20 D. C. 396. Works, 1 Gray (Mass.), 434. 7. Dewey v. Allgire. 37 Neb. 6, 4. Key v. Davis, 1 Md. 32. 55 N. W. 276, 40 Am. St. Rep. 468. 43 §§ 24, 25 FREEDOM OF CONTRACT. Ch. 2 persons, and may be exercised against ho7ia fide purchasers from the grantee of the insane.^ And this rule applies to all third parties who cannot acquire a valid title to property though they purchase without notice of the infirmity of the party through whom they trace their title.® Hence, an accommodation indorser who indorses when insane, is not liable on the note and can avoid it.-^^ But this rule is not accepted in North Carolina. In this State a purchaser for value and without notice from one who had acquired by fraudulent device a conveyance, regular in form and sufficient upon its face to pass title, obtains a good title, though the deed might have been adjudged void against the first grantor.^^ The North Carolina court puts this decision upon the ground of fraud ; that is, a deed taken from an insane man is a fraud, and while it may be avoided as to the first grantee, it cannot be avoided as to the grantee of the grantee who is a hona fide pur- chaser. But this reasoning is contrary to all other authority as to insane person's deeds and conveyance. § 25. Relief in equity. — A party dealing with an insane man in good faith cannot go into a court of equity for redress unless the infirmity of the former lunatic is made an instrument of fraud ; this is the general rule. So courts of equity in many States will not interfere to set aside the contracts of lunatics which have been executed, and where it is impracticable to re- store the parties to their condition before the contract, unless the party contracting with the lunatic obtained an unjust ad- 8. Hovey v. Hobson, 53 Me. 451, Louth, 109 Ind. 315, 10 N. E. 270, 458, 89 Am. Dec. 705; Compare 58 Am. Dec. 405. Odom V. Riddick, 104 N. Car. 515, lO. Wirebach v. Bank, 97 Pa. St. 10 S. E. 609, 7 L. R. A. 118, 17 Am. 543, 39 Am. Rep. 821. See, also, St. Rep. 686. Moore v. Hershey, 90 Pa. St. 196; 9. Rogers v. Blackwell, 49 Mich. McClain v. Davis, 77 Ind. 419. 192, 13 N. 512; Dewey v. Allgire, 11. Odom v. Riddick, 104 N. Car. 37 Neb. 6, 55 N. W. 276. 40 Am. St. 515, 10 S. E. 609, 7 L. R. A. 118, Rep. 468; Hovey v. Hobson, 53 Me, 17 Am. St. Rep. 686. 451, 89 Am. Dec. 705; Hull v. 44 Oh. 2 INSANE PERSONS. § 25 vantage in the contract, or knew of the infirmity/ because it is impracticable of doing full justice under the circumstances, and the parties are left to their legal status.^ But in many States equity courts will avoid the contract whether the parties are placed in statu quo or not. In England and in many of the States, courts of equity will not interfere to annul the contracts of lunatics, made with those swho had no reason to believe them such at the time the con- tracts were made and have been fully executed, upon both sides, and the parties cannot be placed in statu quo. Under tliis doc- trine a person of apparently sound mind and not known to be otherwise, enters into a contract, which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully en- joyed and cannot be restored, such contract cannot be set aside at law or in equity.^ Where the consideration of a deed is not the question at issue, and the grantor, a weak minded person, is misinformed as to the legal effect of the deed, it cannot be avoided in a court of law, but a court of equity will correct or reform the deed.^ Where the law will permit the insane person to avoid his con- tract, equity will set it aside at the suit of the gi*antor on attain- ing sanity, or at the suit of his guardian, executor, administra- tor, or heirs f but a stranger cannot avoid an insane man's deed or contract.^ 1. Elliot V. Ince, 7 DeG. M. & G. Am. 91; Kerwin v. Ins. Co., 25 474; Price v. Berrington, 3 Macn. Fed. Eep. 692; Miskey's Appeal, & G. 498; Selby v. Jackson, 6 Beav. 107 Pa. St. 611; Hunt v. Wier, 4 192; Niell v. Morley, 9 Ves. 478. Dana (Ky.) 347; Judge v. Stone, 2. Segeson v. Leaky, 2 Atk. 412. 44 N. H. 593; Burnham v. Kid- 3. Molton V. Comioux, 2 Exeh. well, 113 111. 425; Gribben v. Max- 486, 4 Exch. 17; Yanger v. Skin- well, 34 Kan. 8, 7 P. 584, 55 Am. ner, 1 Macarter (N. J. Ch.) 389. Rep. 233; Key v. Davis, 1 Md. 32; 4. Eaton v. Eaton, 37 N. J. L. Campbell v. Kulm, 45 Mich. 513, 8 108, 18 Am. Rep. 716. See, also, N. 523, 40 Am. Rep. 475. Turner v. Rusk, 53 Md. 65; Long 6. Ingraham v. Baldwin, 9 N. H. V. Fox, 100 111. 43; Riggan V. 45; Kilbee v. Myrick, 12 Fla. 419; Green, 80 N. Car. 239. Compare Valpey v. Rca, 130 Mass. 5. Carew v. Johnston, 2 Sch. & 384. Lef. 280; Fecel v. Gumault, 32 La. 45 CHAPTER III. Infants. ARTICLE I. Capacity to Conteact. Section 26. Contracts are Voidable, Void or Valid. 27. Distinction Between Infant's Contracts as Voidable and Void is not Sound. 28. Void Contracts of Infants. 29. Emancipation by Parents. 30. Valid Contracts — Legal Obligations. 31. Marriage by Infant. 32. Infant Wife. 33. Bastardy. 34. Notes Given for Torts. 35. Recognizance. 36. Enlistment in the Army. 37. Partition. 38. Shopping — Purchase of Goods. 39. Contract for Necessaries. 40. Things Necessary — Definition. 41. Things Not Necessary. 42. Repairs on Real Estate. 43. Things Necessary. 44. In Business. 45. When an Infant Lives at Home With His Father. 46. Cardinal Tenets. 47. Support of Family. 48. Payment of Minor's Debts by Another, 49. Value of the Article Sold. 50. Mixed Question of Law and Fact. § 26. Contracts are voidable, void or valid. — ^At common law an infant is a person under twenty-one years of age. Under the statute women become of age at eighteen in Arkansas, Califor- nia, Colorado, Idaho, Illinois, Iowa, Kansas, Minnesota, Mis- 46 §§ 26, 27 FEEEDOM OF CONTKAOT. Ch. 3 souri, Montana, Nebraska, Nevada, New Mexico Territory, North Dakota, Oklahoma Territory, Oregon (or as soon as mar- ried), South Dakota, Texas (if married, otherwise twenty-one), Utah, Vermont, Washington, and Wisconsin (if married, other- wise at twenty-one). The law of Oregon applies to Alaska District. In Alabama, Arkansas, Georgia, Kansas, Louisiana, Mississippi, and Texas, all minors under certain circumstances may be declared by decree of court, of age, for the purpose of dealing with their property and the right to contract as adults, provided they are capable of attending to their own business.^ But such statutory provisions can have no extra-territorial ef-' fect.2 Under the general rule their contracts are voidable or valid.^ Still there are some older cases and a few modern that take the old decision and divide an infant's contracts into void, voidable and valid.* That is, 1, where the contract is prejudicial to the infant, it is void ; 2, where the contract is uncertain as to the benefit or prejudice it is voidable ; 3, where the contract is for the benefit of the infant, as for necessaries, it is valid.* This rule, modified so as to declare that the contract necessarily prejudicial to the infant is void, has been adopted in some of 1. See Doles v. Hilton, 48 Ark. Niesz, 17 Colo. 506, 30 P. 215; 305, 3 S. W. 393 ; McKaney v. Scranton v. Stewart, 52 Ind. 68 ; 111. Cooper, 81 Ga. 679, 8 S. E. 312; Land, etc., Co. v. Bonner, 75 111. Succession of Gaines, 42 La. Ann. 315; Bozeman v. Brovraing, 31 Ark. 699, 7 So. 788; Brown v. Wheelock, 364; Mustard v. Wahlford, 15 Grat. 75 Tex. 385, 12 S. W. Ill, 841; Cox (Va.) 329, 79 Am. Dec. 209; Pat- V. Johnson, 80 Ala. 22; Cooper v. chin v. Cromack, 13 Vt. 330; Flower Rhodes, 30 La. Ann. 533. v. Railroad Co. (1894), 2 Q. B. 65; 2. State V. Bunce, 65 Mo. 349. Holmes v. Rice, 45 Mich. 142, 7 N. 3. Wharton on Cont., 36; Anson 772; Weaver v. Jones, 24 Ala. 420; on Cont., 105; Addison on Cont., Irvine v. Irvine, 9 Wall. (U. S.) 295; Shipley v. Bunn, 125 Mo. 143, 617. 28 S. W. 754 ; Pollock on Cont., 52 ; 4. Robinson v. Coulter, 90 Tenn. Lemmon v. Beeman, 45 Ohio St. 705, 18 S. W. 250, 25 Am. St. Rep. 505, 15 N, E. 476; Thompson v. 708; Robertson v. Weeks, 56 Me. Strickland, 52 Miss. 574; Sparman 102; Green v. Willing, 59 Iowa, V. Keim, 83 N. Y. 245; Skinner v. 679, 13 N. W. 761, 44 Am. Rep. Plaisted, 43 N. H. 413; Allen v. 696. Poole, 54 Miss. 323; Kendriek v. 5. Reave v. Boycott, 2 H. Bl. 511. 47 §§ 26, 27 INSANE PERSONS. Ch. 3 the earlier eases and in a few modern. But the great weight of authority repudiates the distinction between void and void- able contracts, on account of their beneficial or prejudicial na- ture, and holds all to be voidable,^ except under a few condi- tions. The privilege of infancy is given to protect the infant from his indiscretion and the imposition of adults. As a result he has the inununity from liability until such contracts are ratified by him on becoming of age. Upon arriving at age he is compe- tent to ratify his contract made in infancy, whether beneficial or prejudicial. Being of full age, with full capacity, to con- tract, he has a right to ratify or avoid such contract ; he has as much right to do that, as he has to make a new contract. A per- son sui juris is as strongly obligated by his contracts prejudicial as by those beneficial, and the same principle applies where a person siii juris ratifies and confirms his contract made in in- fancy. This is the true doctrine, and the contrary is not sup- ported by reason or by the weight of authority. In England many contracts of infants have been declared void by statute.'^ The disability of infancy is not of the character of other non sui juris persons. An infant is compos mentis, has a sane mind, and, therefore, his disability is simply a privilege which he can exercise. In other words, he has the privilege of avoiding his contracts under most circumstances. He is not disabled by an unsound mind, and his contracts should be held void only when such contracts, if made by persons sui juris, would also be void. His contracts are voidable. In other words he has the privilege of avoiding his contracts. § 27. Distinction between infant's contracts as voidable and void. — If the decisions are investigated it will be found that all 6. Lemmon v. Beeman, 45 Ohio c. 82, sec. 2, Infant's Eelief Act of St. 505, 15 N. E. 476; Harner v. 1874, see Coxhead v. MulHs, 3 C. P. Dipple, 31 Ohio St. 72, 27 Am. Rep. D. 439: Ditchman v. Worall, 5 C. 496. P. D. 410; Dublin, etc., Railway 7. 37 & 38 Vict., ch. 62. As to Co. v. Black, 8 Exch. 181. the construction of 37 and 38 Vict., 48 § 27 FREEDOM OF CONTRACT. Ch. 3 simple, and nearly all sealed, contracts by infants, which are not founded upon an illegal consideration, are voidable and not void, and may be ratified by the infant on coming of age. Such contracts remain a legal substratum for future assent, or disaf- firmance; and if, instead of avoiding, he confirms them, when he has legal capacity to make a contract, they are in all respects, like his contracts made after he is twenty-one. Of course in some cases he may make a valid contract, but all other simple contracts, executed or executory, and nearly all sealed contracts, are voidable or confinnable by him at his election, on arriving at majority. His rights are fully protected by conferring on him the power to avoid his contracts, or, in other words, by giv- ing him immunity from liability until such contracts are rati- fied by him, after arriving at full age.^ Hence, his contracts of suretyship are merely voidable f so also an account stated ;^ a conveyance by lease and release ;^ a deed f a mortgage f a 1. Harner v. Dipple, 31 Ohio St. 72, 27 Am. Eep. 496, 2. Cole V. Pennoyer, 14 111. 158; Cummings v. Powell, 8 Tex. 80; Mustard v.Wahlford, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Owen v. Long, 112 Mass. 103; Reed v. Lane, 61 Vt. 481, 17 A. 796; Patchiu v. Croniack, 13 Vt. 330; Curtin v. Patton, 11 Serg. & R. (Pa.) 305; Vaughn v. Dorr, 20 Ark. 600; Wil- liams V. Harrison, 11 S. Car. 412; Fetrow v. Wiseman, 40 Ind. 148 ; Scott V. Buchanan, 2 Humph. (Tenn.) 468; Fonda v. Van Home, 15 Wend. (N. Y.) 631; Williams v. Moore, 11 Mees. & Wei. 256; Shrop- shire V. Burns, 46 Ala. 108; Harner V. Dipple, 31 Ohio St. 72, 27 Am. Eep. 496. 3. Williams v. Moore, 11 Mees. & Wei. 256. 4. Zouch V. Parsons, 3 Burr. 1794: Griffith v. Schwendenman, 27 Mo. 412. 5. Kendall v. Lawrence, 22 Pick. (Mass.) 540; Zouch v. Parsons, 3 Burr. 1794, 1805; Amer. Mort. Co. V. Wright, 101 Ala. 658, 14 So. 399 ; Sharp v. Robinson, 76 Ala. 343. 6. Salinas v. Bennett, 33 S. Car. 285; Barney v. Rutledge, 104 Mich. 289, 62 N. W. 369; Logan v. Gard- ner, 136 Pa. St. 588, 30 A. 625, 20 Am. St. Rep. 939; French v. Mc- Andrew, 61 Miss. 187; Henry v. Root, 33 N. Y. 526, 553; Keichen V. Lee, 11 Paige (N. Y.), 107, 42 Am. Dec. 101; Robbins v. Eaton, 10 N. H. 561; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Callis V. Day, 38 Wis. 643; Dixon V. Merritt, 21 Minn. 196; Manning V. Johnson, 26 Ala. 446, 62 Am. Dec. 732 and note; Irvine v. Irvine, 9 Wall. (U. S.) 617; Skinner v. Maxwell, 66 N. Car. 45. 40 27 INSANE, PERSONS. Ch. 3 promissory note;''' an indorsement of promissory note ;^ agree- ment to pay interest;^ bonds with a i)enalty;^'^ other bonds ;^^ conveyances f^ exchange of property ;^^ compromise^* stock con- tracts f^ settlement of boundary between two premises ;^® agree- ments to render service ;^^ appointment of agent ;^^ gifts ;^^ an ap- peal from a justice's decision ;^° judgments against him;^^ agreement to convey f^ his covenant to carry and deliver money f^ his marriage settlement f'^ his partnership agree- ment^^ 7. Boody V. McKenney, 23 Me. 517; Minock v. Shortiidge, 21 Mich. 304; State v. Plaisted, 43 N. H. 413; Baldwin v. Van Deusen, 37 N. Y. 487; Earle v. Heed, 10 Met. (Mass.) 389; Fetrow v. Wiseman, 40 Ind. 148. 8. Nightingale v. Withington, 15 Mass. 272; Frazier v. Massey, 14 Ind. 382; Briggs v. McCabe, 27 Ind. 327, 89 Am. Dec. 563; Willis V. Twombley, 13 Mass. 204. 9. Bradley v. Pratt, 23 Vt. 378; Compare Fisher v. Mowbray, 8 East, 330. 10. Karcher v. Green, 8 Houst. (Del.) 163; Weaver v. Jones, 24 Ala. 420; Mustard v. Wahlford, 15 Gratt. (Va.) 329, 76 Am. Dec. 209. 11. Conroe v. Birdsall, 1 John. Cas. (N. Y.) 127, 1 Am. Dec. 105; Blake v. Supervisors, 61 Barb. ( N. Y.) 149; Patchin v. Cromach, 13 Vt. 330. 12. Davis V. Dudley, 70 Me. 236, 35 Am. Rep. 318; Allen v. Poole, 54 Miss. 323; Schaffer v. Lovsette, 57 Ala. 14; Illinois Land Co. v. Bonner, 75 111. 315; Tunison v. Chamblin, 88 111. 378; Logan v. Gardner, 136 Pa. St. 588, 30 A. 625, 20 Am. St. Eep. 939; French V. McAndrew, 61 Miss. 187. 13. Williams v. Brown, 34 Me. 594. 14. Baker v. Lovett, 6 Mass. 78, 4 Am. Dec. 88; Barnaby v. Bar- naby, 1 Pick. (Mass.) 221; Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489. 15. Robinson v. Weeks, 56 Me. 102; Indianapolis Chair Co. v. Wil- cox, 59 Ind. 429. 16. Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660. 17. Clark v. Goddard, 39 Ala. 164, 84 Am. Dec. 777; Vent v. Os- good, 19 Pick. (Mass.) 572. 18. Voglesang v. Null, 67 Tex. 465, 3 S. W. 451; Ferguson v. Rail- road Co., 73 Tex. 344, 11 S. W. 347 ; Towle V. Dresser, 73 Me. 252; Com- pare Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489. 19. Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630; Oxley v. Tryon, 25 Iowa, 95. 20. Robbins v. Cutler, 26 N. H. 173. 21. England v. Garner, 90 N. Car. 197; Trapnall v. Bank, 18 Ark. 53. 22. Carrell v. Potter, 23 Mich. 377. 23. West V. Penny. 16 Ala. 186. 24. Whichcote v. Lyle, 28 Pa. St. 73. 25. Jacques v. Sax, 39 Iowa, 367; Dun ton v. Bro\vn, 31 Mich. 182. 50 Ch. 3 INFANTS. § 28 § 28. Void contracts of infants. — The general doctrine has been stated as to the conli-acts of infants. But there is a class of contracts of infants which are lield absolutely void. All con- tracts, it is said, which take effect by delivery of the infant him- self are voidable and not void ; it is only such acts as take effect by the delivery of another for the infant that are absolutel}^ void.^ So a minor's warrant to confess judgment is absolutely void.^ And likewise jurisdiction cannot be conferred upon a court by a -warrant of attorney, executed by a minor authorizing the entry of his appearance and confession of judgment. So an appointment of an attorney by an infant is absolutely void.^ So where a minor purchases property which is not a neces- sity and gives a judgment note, or a note with a warrant of at- torney attached thereto, to confess judgment, the note is only voidable, but the warrant of attorney to confess the judgment is absolutely void.^ And it has also been held that a power of at- torney to sell lands is void.'" This is about the extent of void contracts made by infants, and the doctrine of the old cases has been ignored and is no longer the law, and the practitioner should not be led astray. The decisions of to-day do not hold infants' contracts void except those cases of the technical "' war- rant of attorney," to appear in court to bind the infant, and perhaps a " power of attorney." A decision of the United States Supreme Court has attracted a great deal of attention,^ which apparently holds that an infant's 1. Zouch V. Parsons, 3 Burr. 4. Fuqua v. Sliolem, GO 111. App. 1794; Dexter v. Hall, 15 Wall. (U. 140; Compare Morton v. Steward, S.) 9, 25. .j 111. App. 533. 2. Fuqua v. Sholem, 60 111. App. 5. Philpot v. Bingham, 55 Ala. 140; Cole V. Pennoyer, 14 III. 158; 435: Compare Weaver v. Carpenter, Bennett v. Davis, 6 Cow. (N. Y.) 42 Iowa, 343; Armitage v. Widoe, 393; Knox v. Flack, 22 Pa. St. 337; 36 Mich. 124. Lawrence v. McArter, 10 Ohio, 38; 6. MacGreal v. Taylor, 167 U. S. Pyle V. Cravens, 4 Litt. (Ky.) 17; 688, 17 S. Ct. 961. See, also, Mor- Tucker v. Morehead, 10 Pet. (U. ton v. Steward, 5 111. App. 533, as S.) 58. to the infanfs rights, when note is 3. Cole V. Pennoyer, 14 III. 158. in the hands of an innocent holder for value. 51 §§ 28, 29 PREEDOM OF CONTRACT. Ch. 3 contract is voidable only, unless it appears upon its face to be to his prejudice, in which case it may be void. It is apparent that the reporter made a mistake in his head-notes. If the case is read with close attention, it will be found that no such doo trine was announced as incident to principles involved in the question under discussion. The justice, in his argument, called attention to some old cases that held such doctrine. And if the language can be construed as announcing such doctrine, it is certainly dictum, and, of course was not relative to the case Tinder decision. § 29. Em,ancipation by parents. — Minors may be emanci- pated from parental control by mutual consent. In common language, an infant is given his time by his parents, and then whatever he earns belongs to him, and not to his father, and if his father is dead, his mother cannot lay any valid claim to such income from his labor. But such emancipation does not make him capable of contracting; it simply places him outside of his parental control, and he can avoid his contracts the same as if he had not been given his time.^ And so the question of the emancipation of a minor at the time he executed a note, is irrele- vant to the issue in a suit on the note, as it cannot affect hig liability thereon. He can avoid such note notwithstanding his emancipation.^ By emancipation the infant receives his wages, and the father has no right to demand them either from the em- ployer or the child. Such an agreement may be inferred from circumstances. The emancipation is a relinquishment by the father of the right to the child's services, and an authorization to employers of the infant to pay him his wages as if of full age. It does not make the infant liable on his contracts as an adult.^ 1. Mason v. Wright, 13 Met. 3. Mason v. Wright, 13 Met. (Mass.) 30G. (Mass.) 306; Tyler v. Gallop, 68 2. Tyler v. Gallop, 68 Mich. 185, Mich. 185, 35 N. W. 902, 13 Am. St. 35 N. W. 902, 13 Am. ISt. Rep. 336. Rep. 336; Tayler v. Hill, 115 Cal. See, also, Generaux v. Sibley, 18 R. 143, 44 P. 336, 46 P. 922. I. 42, 25 A. 345. 52 Cb. 3 INFANTS. §§ 29, 30, 31 Though the act of emancipation is not legal, jet a stranger cannot set up its illegality to defeat a minor's right to sue.* The marriage of an infant with his parent's consent emanci- pates him ; still if the infant's marriage be legal, even in de- fiance of the parent's consent, the child becomes emancipated, and the parent's right and control must yield to the new status of the child.' § 30. Valid contracts — Legal obligations. — An infant is under legal obligations to provide for the support of his wife and children, and is answerable on his contracts for necessaries fur- nished them.*^ And so if an infant's contract is in discharge of an obligation which he is by law, either general or statutory, bound to perform, it is valid. A contrary rule would only serve the purpose of fraud and injustice.^ An infant may assign his property in compliance with the statute, and such assignment is valid, because he is bound by all actions which, by law, he is obliged to do f thus, he must pay taxes levied on his land.^ § 31. Marriage by infant. — The statute designates the age of consent that an infant may marry. All marriage agreements made when the infant has arrived at the age of consent are 4. Munday v. Kaufman, 48 La. Y.), 518, 47 Am. Dec. 272; Bav- Ann. 591, 19 So. 753. ington v. Clarke, 2 Pen. & W. (Pa.) 5. Aldrich v. Bennett, 63 N. H. 115, 21 Am. Dec. 432; Stowers v. 415, 56 Am. Kep. 529; Common- Hollis, 83 Ky. 544. wealth V. Graham, 157 Mass. 73, 31 8. People v. Mnllin, 25 Wend. N. E. 706, 16 L. E. A. 578 and note, (X. Y.) 698; United States v. Bain- 34 Am. St. Rep. 255; Sherburne v. bridge, 1 Mason, C. C. 83; Winslow Hartland, 37 Vt. 528; Compare v. Anderson, 4 Mass. 37. See, also. White V. Henry, 24 Me. 531. Elliott v. Horn, 10 Ala. 348, 44 Am. 6. Chapman v. Hughes, 61 Miss. Dec. 488; Alexander v. Wright, 20 339; Price v. Sanders, 60 Ind. 315; Ohio St. 97; Nordholt v. Nordholt, Gilley v. Gilley, 79 Me. 292, 9 A. 87 Cal. 552, 26 P. 599, 22 Am. St, 623, 1 Am. St. Rep. 307 ; Turner v. Rep. 268 ; Prouty v. Edgar, 6 Iowa, Frisby, 1 Strange, 168; Compare 353; Trader v. Jarvis, 23 W. Va. Kelly V. Davis, 49 N. H. 176, 6 100. Am. Rep. 486 and note. 9. Horstnieyer v. Conners, 56 7. People V. Moores, 4 Denio (N. ^lo. App. 115. 53 §§ 31, 32 FREEDOM OF CONTRACT. Ch. 3 valid ;^ but those made before the age of consent are voidable. And the better rule is that parties marrying before the age of consent may disaffirm the contract during non-age and it is then void in toto} In some of the States a marriage contract before age of consent is declared void ; this is the law of Arkansas, and Texas ; and after judicial decree in New Mexico. In the fol- lowing States marriages before age of consent are declared void- able, and may be amended on petition or suit from the date of the decree : Arkansas, California, Indiana, Minnesota, Nevada, New York, Oregon, Vermont, West Virginia, and Wisconsin; and such marriages may be annulled by the injured party in Idaho, Iowa and Washington, and without restrictions in Michi- gan. Marriage before age of consent may be declared void when the parties separate during non-age, and do not cohabit there- after in the following States : Arizona Territory, Massachusetts, Michigan, North Carolina, and Virginia. In Vermont the age of legal consent is the period of disability determined by the common law.^ In Wisconsin a marriage of parties incapable of consenting is voidable.^ § 32. Infant wife. — A married woman is incapable of per- forming any act of affirmance in any other manner than in the mode provided by statute for the conveyance of real estate.^ Hence, she cannot, after attaining the age of majority, affirm her deed while she was an infant feme covert by an instrument which is not executed in conformity to the statutes regulating the conveyance of land by married women. '^ When the disabilities of infancy and coverture concur at the time of the execution of a deed or mortgage, then the right to disaffirm continues until both disabilities are removed, without regard to the length of time which may elapse between the date 1. Frost V. Vauglit, 37 Mich. 65. N. W. 50; Compare Shafher v. 2. Tyler on Inf., 81. State, 20 Ohio, 1. 3. Fisher v. Bernard, 65 Vt. 5. Matherson v. Davis, 2 Cold. 663, 27 A. 316. (Tenn.) 443. 4. State V. Cone, 86 Wis. 498, 57 6. Walton v. Gaines, 94 Tenn. 420, 29 S. W. 458. 54 Ch. 3 INFANTS. §§ 32,33,34 of the instriiinont aiul the freeing the grantor from these dis- abilities." ]jiit the disability of coverture does not preclude a married woman from affirming a covenant entered into by her while single and an infant.^ § 33. Bastardy. — An infant who is the putative father of an illegitimate child, may make a valid contract to support such child when he acknowledges the paternity of it. Thus, an in- fant accused by the mother of a bastard child of being the father of such child, may admit his liability and bind himself by con- tract to support the child.*' The statute makes no distinction be- tween adults and infants as to the liability for the support of illegitimate children. The contract of a minor to pay for the support of particular illegitimate children is binding as being for necessities. ^'^ § 34. Notes given for torts. — Notes given in settlement of torts by the infant are valid. The law makes infants liable for their torts. Hence, when an infant elects to settle such liability by giving his note, so long as the consideration of the note is open to inquiry, he may be held liable upon the note to the same extent that he would be for an action brought upon the cause of action w^iicli formed the consideration of the note.^ Such con- tracts that are valid are none the less so, because in the form of a note or bill.^ 7. Scott V. Buchanan, 11 Humph. Parker, 13 Met. (Mass.) 372, 46 (Tenn.) 467; Dodd v. Berthal, 4 Am. Dec. 735; Bordentown v. Wal- Heisk. (Tenn.) 009; Walton v. lace, 50 N. J. L. 13, 11 A. 267; Gaines, 94 Tenn. 420, 29 S. W. 458. People v. Moores, 4 Denio (N. Y.) 8. In re Hodson's Settlement, 518, 47 Am. Dec. 272; Gavin v. Bur- (1894), 2 Ch. 421; Williams v. ton, 8 Ind. 69. Knight (1894), 2 Ch. 421; Wilder 1. Ray v. Tubbs, 50 Vt. 688, 28 V. Pigot, 22 Ch. Div. 263; Greenhill Am. Rep. 519. V. Ins. Co., 3 Reports, 674. 2. Bradley v. Pratt, 23 Vt. 378; 9. Stowers v. Hollis, 83 Ky. 544. Stone v. Dennison, 13 Pick. (Mass.) 10. Swift V. Bennett, 10 Cush. 1, 23 Am. Rep. 654; Earle v. Reed, (Mass.) 463; Turner v. Frisby, 1 10 Met. (Mass.) 387; Coim v. Co- Strange, 168; Chappie v. Cooper, burn, 7 N. H. 368, 26 Am. Dec. 13 ilees. & Wei. 252; MeCall v. 746; Elwell v. Martin, 32 Vt. 217. See 35 Cent. L. Jour., 203. 55 §§ 35, 36, 37 FREEDOM OF CONTKACT. Cll. 3 § 35- Recognizance. — An infant is capable of binding him- self by any obligation which the law requires or authorizes him to contract.^ Hence, a recognizance given by him is binding upon him.^ So his recognizance to appear in court is binding upion him as if he was an adult.^ He is not only bound by his recognizance but by other bonds or obligations required by law.* Whenever he is bound by law to do an act or to bind himself by recognizance, his contract is valid and he cannot avoid it. When he is to do that which the law binds him to do, he cannot avoid his contract and is bound as if of age. But his bond which the law does not require him to give is voidable.^ § 36. Enlistment in the army. — The statute of the United States provides for the enlistment of soldiers, and the age desig- nated will be the age which will bind an enlisted soldier. The statute® authorizes the enlistment of men above the age of sixteen years, and provides that no person under the age of twenty-one years shall be mustered into military service without the written consent of his parents or guardians. Under this statute, a con- tract of enlistment entered into by a minor, over sixteen years of age, without the consent or knowledge of his parents, cannot be avoided by the minor himself, but only by his parents, who may claim the custody of the minor before majority.'^ § 37. Partition. — Partition proceedings may be legal though one of the tenants in common is a minor. And a court of equity can order land to be sold for partition among general tenants in common, some of whom are minor heirs.^ Infants en ventre sa 1. People V. Moores, 4 Denio 6. U. S. Eev. Stat., sections 1116, (N. Y.) 518, 47 Am. Dec. 272. 1117. 2. Fagin v. Goggin, 12 R. I. 398. 7. In re Hearn, 32 Fed. Rep. 141 ; 3. State V. Weatherwax, 12 In re Davison, 21 Fed. Rep. 618; Kans. 463; Dial v. Wood, 9 Baxt. United States v. Gibbon, 24 Fed. (Tenn.) 296. Rep. 136; In re Morrissey, 137 U. 4. Tyler on Inf. & Gov. 122. S. 157, 11 S. Ct. 57. 5. Karcher v. Green, 8 Houst. 8. Cocks v. Simmons, 57 Miss. (Del.) 163. 183; Wilson v. Duncan, 44 Miss. 642. 56 Ch. 3 INFANTS. §§ 37, 38 mere are not bound bj a decree of partition made before they were born.^ So infant children are not bound by an allotment or sale in partition made before they were born.^" The doctrine is well settled that posthumous children inherit in the same man- ner as if they had been born in the lifetime of the ancestor and had survived him, and their interest cannot be divided by parti- tion when they were not parties to the proceedings/^ And when the guardian and ward are tenants in common, the guardian cannot have the estate partitioned, unless the ward is actually represented in court by a guardian ad litem}^ When voluntary partition is made, and not by decree of court, and some of the parties are infants, these infants after reaching ma- jority, may affirm the partition by holding exclusive possession of their share and exercising ownership thereof,^" § 38. Shopping — Purchase of goods. — It has been said that an infant's contracts when shopping cannot be avoided; that mere purchases at stores in the way of shopping, where the art- icles are received and the price paid, are irrevocable ; that if an infant goes iipon the street of a city shopping, he cannot after- wards retrace his steps, and receive back the money, even though he tenders the goods in return,^ But this statement is not sus- tained by the courts or text-writers. It is the iTuiversal rule that all executory contracts which are voidable on the ground of infancy may be avoided during infancy by the infant as well as afterwards as when the minor promises to pay. So too all con- tracts respecting property which are executed by delivery of some article on payment of money, may be rescinded by the minor before and after the time of his coming of age. To this general rule are these three exceptions: 1, Contracts for neces- 9. Pearson v. Carlton, 18 S. Car. 11. Gillespie v. Xabors, 59 Ala. 47; Gillespie v. Nabors, 59 Ala. 441, 441, 31 Am. Rep. 20. 31 Am. Rep. 20; Massie v. Hiatt, 12. Roodhouse v. Roodhouse, 132 82 Ky. .314; Detrick v. Myatt, 111. 362, 24 N. E. 55. 19 111. 146. 68 Am. Dec. 584; Scott 13. Whittemore v. Cope. 11 Utah, V. Porter, 2 Lea (Tenn.) 224. 344, 40 P. 256. 10. Pearson v. Carlton, 18 S. Car. 1. Bishop on Cont. 921. 47. 57 §§ 38, 39 FREEDOM OF CONTRACT. Ch. 3 saries; 2, contracts, not unequal, to effect what the infant is com- pellable in chancery to do, as making partition, releasing a mort- gage, and the like ; 3, contracts nnder which the infant has so enjoyed or availed himself of the consideration, that the parties cannot be restored to their original situation.^ Hence, it is held by some courts where the infant does not enjoy the benefit of the purchases, he can recover the purchase- money on restoring the thing purchased, but if he has enjoyed the benefit of the purchase and had the use of it, the money can- not be recovered.^ § 39, Contract for necessaries. — An infant's contract fon necessaries is valid. But what are necessaries, is not easily answered. The social standing of the infant and his environment have something to do with the kind of necessaries suitable to. him. Necessaries generally refer to supplies which are personal, either for the body, as food, clothing, lodging, or those necessaries for the proper cultivation of the mind, as suitable instruction, and the purchase of text-books.* The English doctrine is applicable in some respect to the American, though not wholly, on account of caste in the English society. It is held in England that an infant may bind himsel:^ to pay for necessary meat, drink, apparel, necessary medicine, and good teaching, whereby he may profit himself afterwards.^ So regimentals furnished to an infant who was a member of a volunteer corps are necessaries.^ That is necessary which is 2. Reeve's Dom. Rel. pp. 227, Freeman v. Bridger, 4 Jones L. (N. 254; Chitty on Cont. p. 222; Leake Car.) 1, 67 Am. Dee. 258; McCarty on Cont. 553; 2 Kent's Com. 240. v. Carter, 49 111. 53, 95 Am. Dec. 3. Corpe v. Overton, 10 Bing. 572 ; West v. Greggs. 1 Grant (Pa. j , 252; Riley v. MaUory, 33 Conn. 53; Hassard v. Rowe, 11 Barb. (N. 201; Medbury v. Watrous, 7 Hill Y.) 22; Putnam v. Ritchie, 6 Paige (N. Y.) 110; overruling McCoy v. (N. Y.) 390. Hoffman, 8 Cow. (N. Y.) 178, 184, 5. Co. Litt. 172a. 18 Am. Dec. 432 and note. 6. Coates v. Wilson, 5 Esp. 152. 4. Tupper v. Cadwell, 12 Met. (Mass.) 559, 46 Am. Dec. 704; 58 Ch. 3 INFANTS. §§ 39,40 bo)ia fide purchased for use and not for ornament, and which consorts with the condition and rank in life in which the party moves."^ § 40. Things necessary — Definition. — Things nesessary are those without which an individual cannot reasonably exist, such as food, raiment, lodging, and medicine ; so the proper cultiva- tion of the mind is a necessary, such as a common school educa- tion, and instruction in art or trade, or intellectual, moral ou religious information. The assistance and attendance of serv- ants may be necessary. The infant's clothes may be fine or coarse, according to his social standing; and his education may vary according to the position he is to fill ; the medicine will depend on his illness; and a servant in livery may be allowed to a rich infant, if such attendance is commonly appropriate in his social condition. But articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. But contract for charitable assistance to others cannot be allowed to be binding, because they do not relate to the in- fant's own personal advantage.^ Necessaries for an infant's wife are necessaries for him.^ ^Necessaries for a livery servant of an officer in the army are necessaries.^ And an infant widow is bound by her contract for the furnishing of the funeral of her husband, who has left no property.^ The meaning of the term " necessaries " cannot be defined by a general rule applicable to all cases. The question is a mixed one of law and fact, to be determined in each case from the pecu- liar facts and circumstances of such case." 7. Peters v. Fleming, 6 Mees. & 3. Hand v. Slaney, 8 Term. R. Wei. 42. 578. 1. Chappie V. Cooper, 13 Mees. & 4. Chappie v. Cooper, 13 IMees. & Wei. 252. See, also, Ryder v. W. 252. Wombwell, L. R. 3 Exch. 95; Price 5. Englebert v. Troxell, 40 Xeb. V. Sanders, (50 Ind. 310. 195, 58 N. W. 852, 42 Am. St. Rep. 2. Turner v. Frisby, 1 Strange 05; Cobbey v. Buchanan, 48 Neb. 168. 391, G7 X. W. 176. 59 41 FREEDOM OF CONTEACT. Ch. 3 § 41. Things not necessary. — As the rule stands necessaries which an infant may be compelled to pay for, if he has agreed to, are supplies, which are personal, either for the body, as food, clothing or lodging or those necessaries for the proper cultivation of the mind, as suitable instruction and the purchase of text- books. Under this rule a dwelling house is not necessary and an infant may avoid a bond and mortgage given for the erection of it,"^ A bicycle is not a necessity f nor an unnecessary supply of clothing;^ nor professional education;* nor things for mere ornament;^ nor tobacco, prima facie f nor is a horse,^ except when an infant is directed to use one by his physician,^ or in order to take a trip on business and not for pleasure.^ The quality and quantity of the things furnished must be taken into consideration, because if the infant has a sufficient supply they will be unnecessary, and if they are not suitable they are equally unnecessary. -^^ Necessaries do not " include horses, saddles, bridles, liquors, pistols, powder, whips, and fiddles." ^^ A pair of solitaires and a goblet are not necessaries ;^^ nor kid gloves. 1. Allen V. Lardner, 78 Hun (N. Y.), 603, 29 N. Y. S. 213. 2. Pyne v. Wood, 145 Mass. 558, 14 N. E. 775. See, also, Merriam V. Cunningham, 11 Cush. (Mass.) 40; Leonard v. Stott, 108 Mass. 46. 3. Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542. 4. Turner v. Gaither, 83 N. Car. 357, 35 Am. Rep. 574. 5. McKenna v. Merry, 61 111. 179. 6. Bryant v. Richardson, 12 Jur. (N. S.) 300 L. R. 3 Exch. 93n. 7. Wharton v. Mackenzie, 5 Ad. & El. 606; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Howard v. Simpkins, 70 6a. 322; Miller v. Smith, 26 Minn. 248, 37 Am. Rep. 407. 8. Hart v. Prater, 1 Jurist, 623; Harrison v. Fane, 1 Man. & G. 556. 9. Breed v. Judd, 1 Gray (Mass.) 455. See, also, McKenna v. Merry, 61 111. 177. 10. Nicholson v. Spencer, 11 Ga. 610; Nicholson v. Wilborn, 13 Ga. 467; Perrin v. Wilson, 10 Mo. 451; Davis V. Caldwell, 12 Cush. (Mass.) 512; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Horstman v. Connors, 56 Mo. App. 115. 11. Price V. Sanders, 60 Ind. 310. See, also, Harrison v. Fane, 1 Man. & G. 556 ; Glover v. Ott, 1 McCord (S. Car.) 572. 12. Ryder v. Wombell, L. R. 4 Exch. 32. '60 Ch. 3 INFANTS. §§ 41,42,43 cologne, cravats, and fiddle strings,^^ nor buggy ;^^ nor stock on a farm.^^ § 42. Repairs on real estate. — " Necessaries," within the technical meaning of the word, embraces such things as are necessary for the support or comfort of the minor or for his personal use, taking into account his condition and circum- stances in life.-^^ So repairs on real estate are clearly not within this definition, and, hence, an infant is not liable for such repairs either on his own contract or on the contract of his guardian or parent, even though the repairs are necessary to prevent immediate and serious injury to the property.-^' § 43. Things necessary. — Whatever is reasonably needed for the infant's support is necessary, as food and lodging;^ a nurse in sickness f attorney's fees in a necessary suit f dentist's services ;^ common school education f board of infant while at- tending school,® and an infant who has purchased an unneces- sary article of personal property, may rescind the contract and recover the money paid.^ A college education, under certain 13. Lefils V. Sugg, 15 Ark. 137. 1. Barnes v, Barnes, 50 Conn. 14. Howard v. Simpkins, 70 Ga. 572. 322; Rice v. Boyer, 108 Ind. 472, 9 2. Werner's Appeal, 91 Pa. St. N". E. 420, 58 Am. Rep. 53. 222. 15. Decell v. Lewenthal, 57 3. Crafts v. Carr (R. I.), 60 L. Miss. 331, 34 Am. Rep. 449; Com- R. A. 128; Englebert v. Troxell, 40 pare Mahoney v. Evans, 51 Pa. St. Neb. 951, 58 N. W. 852, 42 Am. St. 80. Rep. 665; Askey v. Williams, 74 16. Price v. Sanders, GO Iml. 310, Tex. 294; Epperson v. Nugent, 57 314; Cobbey v. Buchanan, 48 Neb. Miss. 45, 34 Am. Rep. 434; Barker 391, 67 N. W. 176; Englebert v. v. Hibbard, 54 N. H. 539, 20 Am. Troxell, 40 Neb. 195, 58 N. W. 852, Rep. 160; Compare Phelps v. Wor- 42 Am. St. Rep. 665. cester, 11 N. H. 51. 17. Tupper v. Cadwell, 12 Met. 4. Strong v. Foote, 42 Conn. 203. (Mass.) 559, 46 Am. Dec. 704; 5. Midleburg College v. Chand- Phillips V. Lloyd, 18 R. I. 99, 25 ler, 16 Vt. 686. A. 906. See, also, West v. Gregg, 6. Kilgore v. Rich, 83 Me. 305, 1 Grant (Pa.) 53; Wallis v. Bard- 22 A. 176, 23 Am. St. Rep. 780. well, 126 Mass. 366. 7. Shurtleff v. Millard, 12 R. I. 61 §§ 43,44 FREEDOM OF CONTRACT. Ch. 3 circumstances, may be necessary, as when an infant wishes to become a professor.^ But generally a professional education is not necessary.^ But in determining what is necessary the infant's station in life must be considered.^" § 44. In business. — The law does not throw any protection around an infant in business not applicable when out of busi- ness, and does not encourage persons to engage in business dur- ing non-age. The policy of the law is to keep infants from en- gaging in business until they have reached full age, and so art- icles purchased for business purposes, whether that of farming or commerce, are not deemed necessaries. And this is so though the infant enters business in order to support himself.^ So a horse purchased by an infant who is engaged in farming is not a necessary.^ And a bicycle bought to ride to and from business is not a necessary.^ 272, 34 Am. Rep. 640; Robinson v. Weeks, 56 Me. 102, 104; Sparman V. Keim, 83 N. Y. 245; Cooper v. Allport, 10 Daly (N. Y.) 352; Car- penter V. Carpenter, 45 Ind. 142; Ayers v. Burns, 87 Ind. 245, 44 Am. Rep. 759; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Wharton on Cont. 47. Compare. Parson .on Cont. 322, which states the rule incorrectly, with no authority to sustain the statement. 8. Pickering v. Gunning, W. Jones, 182; Middlebury College v. Chandler, 16 Vt. 686. 9. Bouchell v. Clary, 3 Brev. (S. Car.) 194; Turner v. Gaither, 83 N. Car. 357. 10. McKenna v. Merry, 61 111. 177; Squier v. Hydliff, 9 Micfi. 274 Jordan v. Coffield, 70 N. Car. 110 Breed V. Judd, 1 Gray (Mass.) 455 Wilhelm v. Hardman, 13 Md. 144 Chappie V. Cooper, 13 Mees. & Wei. 252. 1. Lowe V. Griffith, 1 Scott, 458; Latt V. Booth, 3 Car. & Kir. 292; Mason v. Wright, 13 Met. (Mass.) 306; House v. Alexander, 105 Ind, 109, 4 N. E. 891, 55 Am. Rep. 189; Merriam v. Cunningham, 11 Cush. (Mass.) 40; Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; Paul v. Smith, 41 Mo. App. 275; State v. Howard, 88 N. Car. 680; Dilk v. Keighley, 2 Esp. 480; Wood v. Losey, 50 Mich. 475 ; Decell v. Lew- enthal, 57 Miss. 331, 34 Am. Rep. 449; Grace v. Hale, 2 Humph. (Tenn.) 28; Whittingham v. Hill, Cro. Jac. 494; Price v. Sanders, 60 Ind. 310. 2. House V. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189. 3. Pyne v. Wood, 145 Mass. 558, 14 N. E. 775. See, also, Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. 62 Cll. o INFANTS. §§ 45, 46 § 45. When an infant lives at home with his father. — An infant wlion residing at home and nnder the care of his father and supported by him, is not liable even for necessaries. If he Avere, the father would be deprived of his right to determine what the character of that support should be ;^ he is not liable for the necessaries furnished him, merely because his father is poor and unable to pay for them." When necessary professional services are rendered to a minor residing in the house with his father, the legal inference is that the father is the person liable therefor. The poverty of the father is not sufficient to render a minor liable for necessaries furnished the infant. To make the father liable for the minor's necessaries, there must be a refusal of the father to furnish them.^ Where an infant has been de- serted by the father, or driven away from home, either by com- mand or by cruel treatment, then the infant carries with him the credit and authority of the father for necessaries. The ob- ligation of the father to support the child is and always has been recognized, in some way and in some degree, in all civil- ized countries. § 46. Cardinal tenets. — The true rule is that those things, and those only, are properly to be deemed necessaries which per- tain to the becoming and suitable maintenance, support, cloth- ing, health, education, and appearance of the infant according to his condition and rank in life, the employment or pursuit in which he is engaged, and the circumstances under which he may be placed as to profession or position. Under this doctrine the property of an infant is not subject to a mechanic's lien for material purchased by him during his 1. Angel V, McLellan, 16 Mass. 331, 34 Am. Rep. 449; Elrod v. 28, 8 Am. xJec. 118; Wailing v. Toll, Myers, 2 Head (Tenn.) 33; Perrin 9 Johns. (N. Y.) 141; Bainbridge v. Wilson, 10 Mo. 451. V. Pickering, 2 W. Bl. 1325; Trainer 2. Hoyt v. Casey, 114 Mass. 397, V. Trumbull, 141 Mass. 530, 6 N. E. 19 Am. Rep. 371. 761; Decell v. Lewenthal, 57 Miss. 3. Hoyt v. Casey, 114 Mass. 397, 399, 19 Am. Rep. 371. 63 §§ 46, 4Y FREEDOM OF CONTRACT. Ch. 3 infancy/ though the repairs on the house were necessary to prevent immediate and serious injury to it.^ So a contract for insurance on his property against loss or damage by fire is not a contract for necessaries which will bind an infant.^ So if a party, at the request of the guardian, pays off a mortgage on the infant's land, he cannot recover from the infant, as such payment was not for necessaries ;* nor need a minor pay a bond and mortgage given to secure the payment for the erection of a house on his land.^ § 47. Support of family. — By the common law a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a husband is bonnd by the same law to support and provide for his wife.® But a minor, who voluntarily abandons his father's house, with- out any fault of the latter, carries with him no credit on his father's account even for necessaries.'^ The father is entitled by law to the services and earnings of his minor children. This right is founded upon the obligation which the law imposes upon him to nurture, support and edu- cate them during infancy and early youth, and it continues until their maturity, when the law determines that they are capable of providing for themselves.* 1. Bloomer v. Nolan, 36 Neb. 51, Y.) 603; Wornock v. Loar, 11 S. W. 53 N. W. 1039, 38 Am. St. E,ep. 438, 11 Ky. L. R. 6. 690. 6. Reynolds v. Sweetser, 15 Gray 2. Phillips V. Lloyd, 18 R. I. 99, (Mass.) 80; Hall v. Weir, 1 Allen 25 A. 909; Tupper v. Cadwell, 12 (Mass.) 261; Camerlin v. Palmer Met. (Mass.) 559, 46 Am. Dec. 704; Co., 10 Allen (Mass.) 539. Wallis V. Bardwell, 126 Mass. 366. 7. Weeks v. Merrow, 40 Me. 151; 3. New Hampshire F. Ins. Co. v. Angel v. McLellan, 16 Mass. 27; Noyes, 32 N. H. 345. White v. Henry, 24 Me. 533; Gilley 4. Bicknell v. Bieknell, 111 Mass. v. Gilley, 79 Me. 292, 1 Am. St. 265. See, also, Phelps v. Worces- Rep. 307; Price v. Sanders, 60 Ind. ter, 11 N. H. 51; McCarty v. Car- 315; Chapman v. Hughes, 61 Miss. ter, 49 HI. 53, 95 Am. Dec. 572; 339. Putnam v. Ritchie, 6 Paige (N. Y.) 8. Furman v. Van Sise, 56 N. Y. 390; Magee v. Welsh, 18 Cal. 155. 435, 439, 444, 446, 15 Am. Rep. 441; 5. Allen v. Lordner, 78 Hun (N. Van Valkenburgh v. Watson, 13 64 Ch. 3 INFANTS. §§ 47,48,49 In Vermont and New Hampshire it is held that a parent is under no legal obligation, independent of statutory provision, to maintain his minor child, and that in the absence of any con- tract on the part of the father, he cannot be held except under the pauper laws of those States which provide such laws.*^ But this is against the great weight of authority and is not supported by the rules of society or the doctrine of publicists. § 48. Payment of minor's debts by another. — If an infant procures another to pay a bill for necessaries for him, that pay- ment is regarded as furnishing of necessaries, in which a suit may be maintained against the infant for the reasonable value, to him on the amount so paid,^ as money paid for an infant for necessaries is recoverable from him.^ And where a person lends m,oney to an infant to pay a debt incurred for necessaries, and the debt is so actually paid, he will stand in equity in the place of the original creditor, and the minor will be liable to him.^ The money loaned must be applied to the payment of the debt for necessaries in order to make the infant liable.* § 49. Value of the articles sold. — An infant may bind him- self to pay for necessaries he obtains, as much as they are rea- sonably worth, but not what he may foolishly have agreed to pay for them.^ If he has made an express promise to pay, or has Johns. (N. Y.) 480, 7 Am. Dec. Genereux v. Sibley, 18 R. I. 43, 25 395; Garland v. Dover, 19 Me. 441; A. 345. Benson v. Remington, 2 Mass. 113; 2. Swift v. Bennett, 10 Gush. Dawes v. Howard, 4 Mass. 98; (Mass.) 436; Randall v. Sweet, 1 Nightingale V. Withington, 15 Mahs. Denio (N. Y.) 4G0; Robinson v. 274, 18 Am. Dee. 101; State v- Weeks, 56 Me. 102 ; Conn v. Coburn, Smith, 6 Me. 462, 464, 20 Am. Dec. 7 N. H. 368, 26 Am. Dec. 746. 324 and note; Dennis v. Clark, 2 3. Harris v. Lee, 1 P. Wm. 482; Cush. (Mass.) 352, 353. Darby v. Boocher, 1 Salk, 279; 9. Gordon v. Potter, 17 Vt. 34S; Clark v. Leslie, 5 Esp. 28; Price v. Kelley v. Davis, 49 N. H. 187, 6 Sanders, 60 Ind. 310; Beeler v. Am. Rep. 499. Young, 1 Bibb (Ky.) 521. 1. Kilgore v. Rich, 83 Me. 305, 4. Randall v. Sweet, 1 Denio (iST. 22 A. 176, 23 Am. St. Rep. 780; Y.) 460. 5. Locke V. Smith, 41 X. H. 346. §§ 49, 50 FREEDOM OF CONTRACT. Ch. 3 given a note in payment for necessaries, the real value will be inquired into, and he will be held only for that amount.*' An infant who is already well provided for in respect to board, clothing, and other articles suitable to his condition, cannot be held responsible if any one supplies other board, clothing, and the like, although such person did not know that the infant was already supplied." The question whether the infant made an express promise to pay is not important. He may be held on a promise implied by law, from the necessity of his situation,^ § 50. Mixed question of law and fact. — What are neces- saries is a mixed question of law and fact. The better rule is that whether the articles are of those classes for which an in- fant shall be bound to pay, is a matter of law to be determined by the court ; if they fall under those general descriptions, then, whether they were actually necessary and suitable to the con- dition and estate of the infant, and of reasonable prices, must, regularly, be left to the jury as a matter of faet.^ It must also be noted that the articles furnished, to come within the class of necessaries, must not only be of the kind which are suitable to the infant's situation in life, but must be actually needed by him, by reason of his failure to have the requisite supplies. If 6. Earle V. Reed, 10 Met. (Mass.) 8. (Gregory v. Lee, 64 Conn. 407, 387; Barnes v. Barnes, 50 Conn. 30 A. 53, 25 L. R. A. 618; Hyman 572; Guthrie v. Morris, 22 Ark. v. Cain, 3 Jones (N. Car.), Ill; 411; Bradley v. Pratt, 23 Vt. 378; Eichardson v. Strong, 13 Ired. (N. Askey v. Williams, 74 Tex. 294, 11 Car.) 106, 55 Am. Dec. 430; Ep- S. W. 1101, 5 L. R. A. 576 and note; person v. Nugent, 57 Miss. 45, 47, Compare Morton v. Stewart, 5 111. 34 Am. Rep. 434; Gay v. Ballou, 4 App. 533: Ayers v. Burns, 87 Ind. Wend. (N. Y.) 403, 21 Am. Dec. 245, 44 Am. Rep. 759; Gregory 158; Buckinhamshire v. Drury, 2 V. Lee, 64 Conn. 407, 30 A. 53, 25 Eden, 60, 72; Clarke v. Leslie, 5 L. R. A. 618. Esp. 28. 7. Angel v. MeClellan, 16 Mass. 9. Cobbey v. Buchanan, 48 Neb. 28, 8 Am. Dee. 118; Swift v. Ben- 391, 67 N. W. 176; Englebert v. nett, 10 Cush. (Mass.) 436; Barnes Troxell, 40 Neb. 195, 58 N. W. 852, V. Toye, 13 Q. B. Div. 410; Trainer 42 Am. St. Rep. 665; Beeler v. V. Trumbull, 141 Mass. 527, 530, 6 Young, 1 Bibb. (Ky.) 519; Decell N. E. 761. V. Lewenthal, 57 Miss. 331. 66 Ch. 3 INFANTS. §§ 50, 51 the infant is already supplied he cannot be held for other sup- plies. ^^ It is incumbent on the party furnishing supplies to satisfy himself by due inquiry that the articles furnished the infant are actually suitable in quantity and in quality.^^ The jury should decide whether the articles are suitable to the estate and condition of the infant.^^ AETICLE 11. Ratification of Voidable Contract. Section 51. Necessity of Ratification. 52. How Ratified. 53. What is a Ratification. 54. Ratification Upon Condition. 55. Time to Ratify. 5G. Silence as a Ratilieation. § 51. Necessity of ratification. — A difference exists between an executed and an executory contract. In the former case the contract is binding until it is avoided. In the latter it is with- out binding force until it is confirmed. If an infant is sued on his executory contract before or after becoming of age, if he has not affirmed it since his majority, the infancy is a perfect de- fense.^^ But after ratification the contract is binding ah ijiitio.^'^ Thereafter the contract subsists between the parties and is valid 10. Deeell v. Lewenthal, 57 Miss. Edgerly v. Shaw, 25 N. H. 514, 57 331, 34 Am. Rep. 449; Davis v. Am. Dec. 349; Petrow v. Wiseman, Caldwell, 12 Cush. (Mass.) 513; 40 Ind. 148; Hale v. Gerrish, 8 N, Nicholson v. Spencer, 11 Ga. 607. H. 374; Savage v. Lichlyter, 59 11. Hands v. Slaney, 8 Term R. Ark. 1, 26 S. W. 12; Carrell v. Pot- 578; Peters v. Fleming, 6 Mees. & ter, 23 Mich. 379; Bush v. Linth- Wel. 42. ieum, 59 Md. 344. 12. McKenna v. Merrj', 61 111. 14. Ward v. Anderson, 111 N. Car. 177; Jordan v. Coffield, 70 Ga. 110. 115, 15 S. E. 333; Kincaid v. Kin- 13. Neal v. Berry, 86 Me. 193, 29 caid, 85 Hun (N. Y.), 141, 32 N. A. 987; Tobey v. Wood, 123 Mass. Y. S. 476; Hall v. Jones, 21 Md. 88, 25 Am. Rep. 27 and note; 439. 67 §§ 51, 52 FREEDOM OF CONTRACT. Ch. 3 and cannot then be avoided by the party who has reached the age of twenty-one years. -^^ § 52. How ratified. — The cases are not in accord as to what constitutes a ratification of a voidable contract. Of course the contract imposes no liability on him until ratified after full age. Some authorities hold that such a ratification must have all the elements of a new contract except a new consideration. The debt is regarded as standing on the same footing as a debt that has been destroyed by a discharge in bankruptcy, and not as one barred by the statute of limitations.^ But the better rule is that the contracts of infants are only suspended during minority, and may be ratified upon the same principle and for the same reasons as a debt barred by the statute of limitations may be revived. Hence, under this rule, a new promise, clear and precise, equivalent to a new contract, is not essential ; but any words or acts by the infant, after be- coming of age, that clearly recognize the existence of the con- tract as a binding obligation, will constitute a ratification.^ So an express promise to pay is not the only method of ratification ; but any declaration or act which satisfies the court that the lia- bility or contract duty is still binding and intended to be com- plied with, if voluntarily done, or entered into, completely neu- tralizes the defense of infancy ; and it is not necessary to a binding ratification that the party sought to be charged knew, at the time the promise was made, or act done, that he had the right to avoid the contract. All men are presumed to know the law, and no one will be heard to plead ignorance of it.^ 15. Hastings v. Dollarliide,24Cal. 2. Henry v. Root, 33 N. Y. 526; 195; Houlton v. Manteuflfel, 51 American Mort. Co. v. Wright, 101 Minn. 185, 53 N. W. 541; Curry v. Ala. 658, 14 So. 399; In re Hodson's Plow Co., 55 111. App. 82. Settlement (1894), 2 Ch. 421. 1. Tibbets v. Gerrish, 25 N. H. 3. American Mort. Co. v. Wright, 41, 57 Am. Dec. 307; Metson v. 101 Aia. 658, 14 So. 399; Morse v. Roath, 12 Conn. 550; Edmunds v. Wheeler, 4 Allen (Mass.) 570; Bes- Mister, 58 Miss. 765; Turner v. tor v. Hickey (N. J.), 41 A. 555; Gaither, 83 N. Car. 357, 35 Am. Compare Hatch v. Hatch, 60 Vt. Rep. 574. 160, 13 A. 791; Kendrick v. Niesz, 68 Ch. 3 INFANTS. §§ 52, 53 The method of ratification is regulated by statute in some jurisdictions, which must be followed; and, however ratified, the ratification once made cannot be repudiated.* It has been held bj some courts, against the great weight of authority, that the promise of the adult to bind himself bj a contract made in infancy must not only be voluntary and ex- plicit, but must be made with knowledge that he is not legally liable unless the promise is made. The claim for the necessity of such knowledge first appeared in a dictum of a nisi prius court.^ This unsound doctrine was exposed and overthro^vn by a Massachusetts decision,^ and strange to say, the same court affirmed the doctrine of the erroneous dictum, in a brief and hasty opinion.'' The promise affects only the liability, and has no effect unless there is an existing contract. When that is established through the acts of the infant, the liability must be proved, and is limited by the promise of the adult.^ It is immaterial whether the promise is treated as a waiver, or ratification, or a new con- tract, and it is not necessary that the adult knows that he is not legally liable. The action must be brought on the original con- tract. The validity of the adult's promise depends on his ability to affirm his infant contract, and the fact that he does not know that he is not legally liable has no effect; he is morally liable, and his promise makes him legally liable for the original con- tract. § 53- What is a ratification. — Where an infant executes a purchase-money mortgage to secure the purchase-money for land conveyed to him by deed, he cannot, after he comes of age, affirm the deed and at the same time disaffirm the mortgage ;^ because 17 Colo. 506, 30 P. 245;Dolph v. 6. Morse v. Wheeler, 4 Allen Hand, 156 Pa. St. 91; 27 A. 114, (Mass.) 570. 36 Am. St. Rep. 25; Edwards v. 7. Owen v. Long, 112 Mass. 403. Carter, Appeal Cases (1893), 360. S. Edgerley v. Snaw, 25 N. H. 4. Curry v. Plow Co., 55 111. App. 514, 57 Am. Dec. 349. 82. 1. Kendrick v. Baker, 159 Pa. St. 5. Harmer v. Killing, 5 Esp. 102. 146, 27 A. 114. See, also, Amer, 69 §§ 53, 54: FREEDOM OF CONTRACT. Ch. 3 the deed and mortgage is one transaction, and the one cannot be ratified or avoided without producing the same effect on the other.^ So a deed of trust is ratified bj acceptance, by the party at majority, of part of the proceeds.^ A prior mortgage may be ratified by the party after becoming of age, by a recital in a subsequent mortgage that the latter is given subject to the former/ Keeping a house erected on an infant's land, after his coming to maturity, is not a ratification for materials furnished to erect the house.^ An offer by an infant after coming of age to aflSrm a conveyance by him, if the grantee will pay balance of purchase-money which is refused, is no ratification f and if he agrees to ratify upon a condition, the condition must arise be- fore he will be bound.' Eeceiving part of the purchase-money of his land, after becoming of age, is a ratification of the sale f taking up an old deed and giving a new one in affirmance of it, avoids the old deed ah initio.^ § 54. Ratification upon condition. — A contract may be rati- fied or qualified upon condition. ^^ So in an action on such a contract, such a conditional ratification will not avoid the de- fense of infancy unless there is proof of the happening of the conditions annexed thereto.^^ As an adult may wholly avoid the contract made during infancy, he may avoid it in part or may undertake a conditional performance of it.^^ Thus, a note given Free L. Co. v. Dykes, 111 Ala. 178, 6. Craig v. Van Bebber, 100 Mo. 18 So. 292, 56 Am. St. Rep. 38. 584, 13 S. W. 906, 18 Am. St. Rep. 2. Necker v. Koehn, 21 Neb. 559, 569 and note. 59 Am. Rep. 849; csKinner v. Max- 7. Peacock v. Binder, 57 N. J. well, 66 N. Car. 45. L. 374, 31 A. 215. 3. Darraugh v. Blackford, 84 Va. 8. Smith v. Gray, 116 N. Car. 509, 5 S. E. 542; Treadway v. 311, 21 S. E. 196. . Veasey, 97 Ga. 329, 22 S. E. 915. 9. Cox v. McGowan, 116 N. Car. 4. Wardv. Anderson, 111 N. Car. 131, 21 S. E. 108. 115, 15 S. E. 933. 10. Peacock v. Binder, 57 N. J. L. 5. Bloomer v. Nolan, 36 Neb. 51, 374, 31 A. 215. 53 N. W. 1039, 38 Am. St. Rep. 11. Peacock v. Binder, 57 N. J. L. 690. See, also, AHen v. Lardner, 78 374, 31 A. 215. Hun (N. Y.), 603, 29 N. Y. S. 213. 12. Thompson v. Lay, 4 Pick. (Mass.) 47; Proctor v. Sears, 4 YO Cb. 3 INFANTS. §§ 54, 55, 56 in infancy may be ratified upon condition by tbe adult upon condition of his financial ability to pay it or some part of i{}^ § 55. Time to ratify. — It is provided by some States that a ratification shall be made within a specified time by the party coming of age. But where the statute does not control, a reason- able time should be allowed to ratify or avoid, and if not avoided, the contract should be declared valid. Such neglect to ratify, it is generally held, may be regarded as equivalent to an act of afiirmance, and as amounting in fact and in law as a rati- fication.^* What is a reasonable time will depend upon circum stances of each particular case, and may be, either for the court or for the jury to determine. -^^ § 56. Silence as a ratification. — Some courts hold that no passive acquiescence, though long continued, will ratify a contract.^ A ratification may be inferred by acts of the infant and circumstances, after the infant has attained majority, which are inconsistent with an intention to disaffirm ; as receiving rent on a lease, receiving a part of the purchase-money, or conveying a part of the land received in consideration of a decd.^ The Allen (Mass.) 95; Eversen v. Car^ Goslin, 20 Neb. 347; Thompson v. penter, 17 Wend. (N. Y.) 419. Strickland, 52 Miss. 574. 13. Peacock v. Binder, 57 N. J. L. 1. Davis v. Dudley, 70 Me. 236, 374, 31 A. 215. 35 Am. Rep. 318; Wallace v. Lath- 14. Dolph V. Hand, 156 Pa. St. am, 52 Miss. 291; Eureka v. Ed- 91, 27 A. 114, 36 Am. St. Rep. 25; wards, 71 Ala. 248, 46 Am. Rep. Wallace v. Lewis, 4 Harr. (Del.) 314; Hill v. Nelms, 86 Ala. 442, 5 75; Zoebisch v. Rauch, 133 Pa. St. So. 796; Cresinger v. Welch, 15 532, 19 A. 415; Goodnow v. Empire Ohio, 193; Drake v. Ramsey, 5 Lumber Co., 31 Minn. 468, 47 Am. Ohio, 251; Ferguson v. Bell, 17 Mo. Rep. 798; Scott v. Buchanan, 11 347; Bostwick v. Atkins, 3 N. Y. Humph. (Tenn.) 468; Houlton v. 53; Irvine v. Irvine, 9 Wall. (U. Manteuffel, 51 Minn. 185, 53 N. W. S.) 617; Huth v. Carondelet, etc., 541; Terrell v. Wentworth, 32 Fla. Co., 56 Mo. 202, 209. 255, 13 So. 429, 37 Am. St. Rep. 2. Thomas v. Pullis, 56 Mo. 219; 94. Sims v. Everhardt, 102 U. S. 312; 15. Bingham v. Barley. 55 Tex. Gillespie v. Bailey, 12 W. Va. 70, 281, 40 Am. Rep. 801; O'Brien v. 29 Am. Rep. 445; Lacy v. Pixler, 71 §§ 56, 57 FREEDOM OF CONTRACT. Ch. 3 better rule is, especially where the rights of third parties have in- tervened, an unreasonable delay to avoid the contract on coming of age, should be considered an affirmation of the contract.^ AETICLE III. Disaffirmance of Voidable Contracts. Section 57. Avoidance. 58. May Disaffirm Contracts Pertaining to Personalty Before Ma- jority. 59. What is a Reasonable Time to Disaffirm. 60. In Case of Partnership Contracts. 61. Rights of Third Persons. 62. Contracts for Service. 63. Contracts Beneficial to Infants. 64. Return of Consideration. 65. How Affirmed or Disaffirmed. 66. Who May Avoid. § 57. Avoidance. — All contracts of an infant, except those for necessaries and those binding on him by law, are voidable by him at his election, made within a reasonable time after be- coming of age.^ Deeds made by a minor are not void, but only voidable. Their validity does not depend upon a ratification after the minor attains majority, but to avoid them he must by some act, clear and unmistakable in its character, disaffirm them.^ And so where an infant, after attaining majority, ex- pressly revokes and disaffirms a deed made by him during minority, it may be disregarded, and the rights of the parties 120 Mo. 383, 25 S. W. 206; Dono- 1. Gregory v. Lee, 64 Conn. 407, van v. Ward, 100 Mich. 601, 59 N. 30 A. 53; Englebert v. Troxell, 40 W. 254; Tyler v. Gallop, 68 Mich. Neb. 195, 58 N. W. 852, 42 Am. St. 187, 35 N. W. 902. Rep. 665. 3. Langdon v. Clayson, 75 Mich. 2. Tunison v. Chamblin, 88 111. 20-x, 42 N. W. 805; Lacy v. Pixler, 378; Irvine v. Irvine, 9 Wall. (U. 120 Mo. 383, 25 S. W. 206; Dolph S.)617; Dixon v. Merritt, 21 Minn. V. Hand, 156 Pa. St. 91, 27 A. 114, 196. 36 Am. St. Rep. 25. T2 Cll. 3 INFANTS. § 57 will be determined the same as if the deed had never been made.^ The right to disaffirm a contract of personal liability is ab- solute, and does not depend upon any other consideration than the obligations of that contract/ and relates back to the time of contract ;'' such disaffirmance is final and the contract cannot be affirmed thereafter.^ And where an infant buys of another infant, and avoids the contract, the other may avoid the implied contract to return the purchase-money, so that there can be no recovery on the contract. Where, at the time one infant avoids a contract of purchase from another infant and the latter has spent the purchase- money, he, also, having avoided his contract, is not liable for conversion.^ If an infant gets property by fraud, a different question then presents itself.^ Thus, where an infant procures the intoxication of a man and then tortiously receives possession of the man's cow, the man on coming to his senses may avoid the contract and bring trover against the infant where he has sold the cow and spent the money, upon the ground that the cow had been tortiously taken from him under a fraudulent contract.* Formerly it was held that an infant, after the sale of his land, might enter and take the rents and profits until his majority, when he could affirm or disaffirm his sale.^" But that cannot be the law. In the first place he would not be allowed to enter the premises in possession of his grantee, and therefore could not 3. Mette v. Feltgen, 148 111. 357, ton v. Barry, 175 Mass. 513, 56 N. 36 N. E. 81. E. 574, 49 L. K. A. 560, 78 Am. St. 4. Leacox v. Griffith, 76 Iowa, Rep. 510, and cases cited; Carr v. 89, 40 N. W. 109. Clough, 26 N. H. 280, 59 Am. Dec. 5. French v. McAndrew, 61 Miss. 345. 187; Rice v. Boyer, 108 Ind. 472, 9 8. Walker v. Davis, 1 Gray N. E. 420, 58 Am. Rep.. 53. (Mass.) 506. 6. McCarty v. Woodstock Iron 9. Thurston v. Blanchard, 23 Co., 92 Ala. 463, 8 So. 417; Ihley Pick. (Mass.) 18, 33 Am. Dec. 700. V. Padgett, 27 S. Car. 300, 3 S. E. 10. Cummings v. Powell, 8 Tex. 468. 80; Harrod v. Myers, 21 Ark. 592, 7. Drude v. Curtis, 183 Mass. 76 Am. Dec. 409. 317, 67 N. E. 317. See, also, Slay- Y3 §§ 57, 58 FREEDOM OF CONTRACT. Ch. 3 take the rents and profits. He mnst wait until he is of age.^^ The deed of an infant is by no means inoperative, and transmits title with all of its incidents.^^ The privilege of infancy is not always personal to the infant ; and contracts, grants or deeds by a matter in writing, and which take effect by the delivery of his hands, are voidable not only by himself during his life time, but also by his heirs, or those who have his estate, after his decease ; and his heirs may exercise the same right of disaffirmance within the same time that the infant himself might if living. ^^ The right to disaffirm the sale on coming of age, is not lost by the sale of the land by the infant's grantee to an innocent pur- chaser.^* An infant may be the subject of a petition in bankruptcy, if the debts from which discharge is sought, cannot be disaffirmed by him on coming of age.^° But other cases hold that an infant cannot be adjudged a bankrupt in either voluntary or involun- tary proceedings ;^^ but in these cases the debts from w^hich re- lease was sought could be disaffirmed, and it was intimated that a petition for discharge would be granted if the liability had been for necessaries. In England the question whether debts for necessaries will support a petition in bankruptcy is an open § 58. May disaffirm contracts pertaining to personalty be- fore majority. — While there is not entire harmony in the de- cisions upon the question w^hether a minor can avoid all his 11. Shipley v. Bunn, 125 Mo. 14. Searcy v. Hunter, 81 Tex. 445, 28 S. W. 754. 644, 17 S. W. 372, 26 Am. St. Rep. 12. Irvine v. Irvine, 9 Wall. (U. 837. S.) 617; Worcester v. Eaton, 13 15. In re Penzansky, 8 Am. B. Mass. 371. R. 99. 13. Land and Loan Co. v. Bon- 16. In re Eidenmiller, 110 Fed. ner, 75 111. 315; Breckenridge v. Rep. 594; In re Dugend, 100 Fed. Ormsby, 1 J. J. Marsh. (Ky.) 248; Rep. 274. Austin V. Seminary, 8 Met. 17. In re Saltykoff, 1 Q. B. 415. (Mass.) 203; Compare Jackson v. Burchin, 14 Johns. (N. Y.) 137. 74 Ch. 3 INFANTS. §§ 58, 59 executory contracts, before lie attains majority, he may avoid those relating to personal property in his minority.^ Executed contracts relating to land cannot be avoided until the infant comes of age. He may take possession of the land sold by him during infancy and enjoy the profits, and then upon attaining his majority may disaffirm the sale.^ But this is not the rule in all States. In Missouri a deed of a minor passes his estate in the land conveyed, subject only to be defeated by a dis- affirmance by him. During infaaicy he cannot disaffirm his deed, nor can he enter upon the land sold by him and enjoy its profit.^ § 59. What is a reasonable time to disaffirm. — Many of the States have answered this question by statutory provisions. But when not so answered, it is generally held that the time must be reasonable in respect to the special circumstances of each case.^ And if the voidable contract is not rescinded within a reasonable time after attaining majority, by the party who has come of age, when third parties' rights intervene, he will then be barred from avoiding it.^ But there are a few courts that hold that the infant on coming of age has a period equal to that 1. Bool V. Mix, 17 Wend. (N. Mass. 508, 93 Am. Dec. 117 and Y.) 119, 31 Am. Dec. 285; Stafford note. V. Roof, 9 Cow. (N. Y.) 626 Chapin v. Shafer, 49 N. Y. 407 Sparman v. Keim, 83 N. Y. 245 3. Shipley v. Biinn, 125 Mo. 445, 28 S. W. 754; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, Beardsley v. Hotchkiss, 96 N. Y. 18 Am. St. Rep. 569 and note; 201; Petrie v. Williams, 68 Hun Harris v. Ross, 86 Mo. 89, 56 Am. (N. Y.), 589, 23 N. Y. S. 237; State Rep. 411; Peterson v. Laik, 24 Mo. V. Plaisted, 43 N. H. 413; Adams 541, 69 Am. Dec. 441. V. Beall, 67 Md. 53, 8 A. 664, 1 Am. 4. Amey v. Cockey, 73 Md. 297, St. Rep. 379; Towle v. Dresser, 73 20 A. 1071. Me. 252; Rice v. Boyer, 108 Ind. 5. Ward v. Laverty, 19 Neb. 429, 472, 9 N. E. 420, 58 Am. Rep. 53; 27 N. W. 393; Thormachlen v. Riley v. Mallory, 33 Conn. 207. Kaeppel, 86 Wis. 378, 57 N. W. 2. Baker v. Kennett, 54 Mo. 88; 298; Dolph v. Hand, 156 Pa. St. W^elch V. Bunce, 83 Ind. 382; Shirk 91, 27 A. 174, 36 Am. St. Rep. 25; V. Shultz, 113 Ind. 571, 15 N. E. Goodnow v. Empire Lum. Co.. 31 121; Stafford v. Roof, 9 Cow. (N. Minn. 468, 18 N. 283, 47 Am. Rep. Y.) 626; Chandler v. Simmons, 97 798. 75 §§ 59, 60 FBEEDOM OF CONTRACT. Ch. 3 of the statute of limitations, in which to avoid his contract, and an acquiescence for a shorter period will not affirm it.^ The better rule is that what is a reasonable time depends upon the circumstances of each particular case, and may be either for the court or for the jury to determine.'^ If the infant upon at- taining his majority desires to repudiate his contract he must do so within a reasonable time; and he must be treated as knowing the contents of a deed whether he knew them or not, and if his repudiation is not made Avithin a reasonable time, he is bound by the deed.^ § 6o. In case of partnership contracts. — Where an infant enters into a partnership and continues until he attains ma- jority, and then continues in the partnership, he will be liable for the debts of the firm. But he will not be liable personally for debts not affirmed, when they were made in his infancy as a member of the partnership.^ Where money is paid by a minor in consideration of being admitted as a partner, and does be- come and remain a partner for a given time, he ought not to be allowed to recover back the money thus paid unless he was in- duced to enter into the partnership by fraudulent representa- tions of the other partners.^ An infant having entered into a partnership cannot repudiate his contract so as to escape the consequences of partnership which do not involve personal liability for claims against the firm or costs incident to the legal settlement of its affairs. Such partner- ship must be dissolved as any other, and partnership assets must be assignable to partnership creditors.^ And it is held that a min- 6. Prouty v. Wiley, 28 Mich. 8. Ewards v. Carter, Appeal 164; Drake v. Ramsey, 5 Ohio, 251; Cases (1893), 360. Lacy V. Pixler, 120 Mo. 383, 25 S. 1. Bush v. Linthicum, 59 Md. W. 206; Richardson v. Pate, 93 345; Tobey v. Wood, 123 Mass. 88, Ind. 432. 25 Am. Rep. 27 and note. 7. Goodnow v. Empire Lum. Co., 2. Adams v. Beall, 67 Md. 53. 8 31 Minn. 468, 18 N. W. 283, 47 Am. A. 664, 1 Am. St. Rep. 379; Ex Rep. 798 ; O'Dell v. Rogers, 44 Wis. parte Taylor, 8 DeG. Mac. & Gor. 136; Bingham v. Bailey, 55 Tex. 254. 281, 40 Am. Rep. 801. 3. Armitage v. Widoe, 30 Mich. 76 Cli. 3 INFANTS. 60,61 or may avoid a personal liability by disaffirming a contract made by the firm of which he was a member without disaffirming the contract of partnership.* But an infant coming of age, or be- fore, may disaffirm the partnership agreement and also the debts of the firm so far as his personal liability is concerned.^ As to the creditors of the firm, his only immunity is, he cannot be held personally liable for the firm debts. ^ He may thus throw the liability for the whole debts on his partners, and make such partners solely responsible, but the assets of the firm must be devoted to the satisfaction of the contracts by which they have been procured. Having placed the whole liability on the other partners, and having extricated himself by avoiding his con- tract, from all liability personally, it would be unjust to allow him to share in the assets of the firm as against the partnership creditors.' § 6i. Rights of third persons — Third persons are also bound by the avoidance of an infant's contract. So a bona fide purchaser from the vendee of an infant does not take title against the right of the minor at majority to disaffirm.^ When a void- able contract of an infant is disaffirmed by him it is made void ah initio by relation and the parties remitted to the same situ- ation as if the contract had not been made. If the contract is one of sale by the infant he becomes revested with his title to the property and may demand and recover it, not only of his vendee but of any other person who may have it in possession. The r24; Kitchen v. Lee, 11 Paige (N. Y.) 107, 42 Am. Dec. 101; Moley v. Brine, 120 Mass. 324; Furlong v. Bartlett, 21 Pick. (Mass.) 401. See, also. Shirk v. Shultz, 113 Ind. 571, 19 N. E. 12. 4. Mehlhop v. Rae, 90 Iowa, 30, 57 N. W. 650; Compare Salinas v. Bennett, 33 S. Car. 285, 11 S. E. 968; Miller v. Sims, 2 Hill (S. Car.) 479. 5. Mason v. Wright, 13 Met. (Mass.) 306; Folds v. Allardt, 35 Minn. 488, 29 N. W. 201; Todd v. Clapp, 118 Mass. 495. 6. Yates v. Lyon, 61 N. Y. 344; Pelletier v. Couture, 148 Mass. 269, 19 N. E. 400, 1 L. R. A. 863 and note. 7. Pelletier v. Couture, 148 Mass. 269, 19 N. E. 400, 1 L. R. A. 863 and note. 8. Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837. YY §§ 61, 62 FREEDOM OF CONTKACT, Ch. 3 riglit of an infant to avoid his contract is an absolute and para- mount rightj superior to all equities of other persons, and may therefore be exercised against purchasers from his vendee.'^ He who deals with an infant deals at his peril and subject to those rights of the infant to disaffirm and avoid the contract. This is the case even though he deal in ignorance of the infancy and on the fraudulent representation that he is of full age.^" § 62. Contracts for service. — An infant can avoid his con- tract for service and recover a quantum meruit as if no contract had been made. So where an infant has performed labor on a special contract, which he afterwards abandons, he may recover for his services as if no such contract had been made. This is the true rule of law, and the parties are left to their legal rights and remedies just as if no contract had ever been made.^ The express contract to work a certain time does not control.^ However, where an infant seeks to avoid his contract and re- cover what his services are reasonably worth, the employer may set off against the value of the infant's services, the reasonable value of what the infant has received on account of such ser- vices.^ Thus, when a minor repudiates his contract to work for two years, after working five months, and being paid by the month, he can recover no more than his equitable dues. What 9. Jenkins v. Jenkins, 12 Iowa, Burnes, 84 Iowa, 446, 50 N. W. 41. 195; Leacox v. Grriffith, 76 Iowa, 2. Whitmarsh v. Hall, 3 Denio 89, 40 N. W. 109; Myers v. Sanders, (N. Y.), 375; Robinson v. Weeks, 7 Dana (Ky.) 506, 521; Hill v. An- 56 Me. 102; Doreeher v. Continental derson, 5 Smedes & M. (Miss.) 216; Mills, 58 Me. 217, 4 Am. Rep. 286; Downing v. Stone, 47 Mo. App. 144 ; Ray v. Haines, 52 111. 485 ; Price v. Miles V. Longerman, 24 Ind. 385. Furnam, 27 Vt. 268, 65 Am. Rep. 10. Stack V. Cavanaugh, 67 N. H. 194. 149, 30 A. 350; Conroe v. Birdsall, 3. Breed v. Judd, 1 Gray 1 Johns. Cas. 127, 1 Am. Dec. 105; (Mass.) 455; Gaffney v. Hayden, Winkle v. Ketcham, 3 Caine's Cas. 110 Mass. 137, 14 Am. Rep. 580; 323; Mustard v. Wohlford, 15 Grat. Hoxie v. Lincoln, 25 Vt. 206; Squier (Va.) 340. V. HydliflF, 9 Mich. 274; Spicer v. 1. Thompson v. Marshall, 50 Mo. Earl, 41 Mich. 191, S2 Am. Rep. App. 145; Vent v. Osgood, 19 Pick. 152; Hall v. Butterfield, 5D N. H. (Mass.) 572; Vehne v. Pinkham, 354, 47 Am. Rep. 209. 60 Me. 142. See, also, Harrison v. 78 Ch. 3 ii^FANTS. §§ 62, 63 lie received is deducted from the value of the work done.* The employer may set up a counter-claim for board and other neces- saries furnished even to the extinction of the infant's claim f but the employer cannot set up any damages for breach of the contract.^ If the articles furnished are not necessaries, then the infant may repudiate the contract and recover for his services, and the employer cannot set off the amount thus paid the in- fant^ § 63, Contracts beneficial to infants. — Where the personal contract of an infant is fair and reasonable, and free from any fraud, overreaching, or undue influence by the adult, and has been partly or wholly executed on both sides, so that the infant has enjoyed the benefit of it, but has parted with what he has received, or the benefits received are of such a nature that he cannot restore them, he cannot recover back what he has paid ; this is the rule held by the English and many American de- cisions.^ In Holmes v. Blagg,^ it was erroneously held that the infant could never recover back money voluntarily paid. This was obiter of the chief justice. It has been said that Corpe v. Overton,^ has overruled this case, but such is not the fact. Corpe V. Overton held that the infant might recover back what he had voluntarily paid, but on the ground that the contract in that case remained wholly executory on the part of the other party, and hence the infant had never enjoyed its benefits. And this 4. Hagerty v. Nashua Lock Co., 1. Holmes v. Blagg, 8 Taunt. 62 N. H. 576; Ray v. Haines, 52 508; Valentine v. Canali, 24 Q. B. 111. 485; Spicer v. Earl, 41 Mich. Div. 166; Riley v. Mallor, 33 Conn. 191; Gaffney v. Hayden, 110 Mass. 206; Adams v. Beall, 67 Md. 53; 8 137. A. 664, 1 Am. St. Rep. 379; Breed 5. Hoxie V. Lincoln, 25 Vt. 206; v. Judd, 1 Gray (Mass.) 455; John- Roundy v. Thatcher, 49 .N. H. 526; son v. Ins. Co., 56 Minn. 365, 57 N. Meredith v. Crawford, 34 Ind. 399. W. 934, 59 N. W. 992, 26 L. R. A. 6. Doreeher v. Continental Mills, 187, 45 Am. St. Rep. 473 and note; 58 Me. 217, 4 Am. Rep. 286; Whit- Compare. Chicago, etc., Asso. v. marsh v. Hall, 3 Den. (N. Y.) Hunt, 127 111. 278, 20 N. E. 55. 375. 2. 8 Taunt. 508. 7. Morse v. Ely, 154 Mass. 458, 3. 10 Bing. 252. 28 N. E. 577, 26 Am. St. Rep. 263. Y9 § 63 FKEEDOM OF CONTEACT. Ch. 3 doctrine of the text has been accepted by able writers.^ This doctrine does not apply to real property contracts. But, if the contract involved the element of actual fraud or bad faith, the infant may recover all he paid or parted with ; but if reason- able and fair, except that what the infant paid was in excess of the value of what he received, he may recover the excess,^ and the contract must be one which is deemed beneficial to the in- fant by law. The majority of the American decisions have modified the rule thus given, and others have repudiated it in toto. They hold that although the contract was in all respects fair and rea- sonable, and the infant had enjoyed the benefits of it, yet if the infant had spent the money received, or if the benefits of it were of such a nature that they could not be restored, still he might recover back what he had paid. The courts seem to want to pro- tect the infant from the improvidence incident to his youth and inexperience,® But the late decision of the American courts are not uniform, and no definite rule can be stated. Every one who assumes to contract with an infant should be held to the utmost good faith and fair dealing. The disparity between the infant and the adult is such as to raise a presumption against the fair- ness of the contract, and to cast upon the adult party the burden of proving that it was a fair and reasonable one, and free from any fraud, undue influence, or overreaching.^ So an infant will be bound by a stipulation in his fire insurance policy, which pro- vides that no suit shall be brought for the recovery of any loss, 4. See Chitty on Cont., p. 222; 6. Bloomer v. Nolan, 36 Neb. 51, Leake on Cont., p. 553; 2 Kent's 53 N. W. 1039, 38 Am. St. Rep. 690; Com. 240; Reeve's Dom. Rel. clis. Reynolds v. McCurry, 100 111. 356, 2 and 3 ; Parsons states the law too 39 Am. Dec. 39 ; Hawes v. Railroad broad, by omitting the qualification Co., 64 Iowa, 315, 20 N. W. 717; " and enjoys the benefit of it." Englebert v. Troxell, 40 Neb. 195, Parsons on Cont., p. 322. The Illi- 58 N. W. 852, 42 Am. St. Rep. 665. nois decision accords with Parsons' 7. Johnson v. Ins. Co., 56 Minn, statement, Chicago, etc. Asso. v. 3C5, 57 N. W. 934, 59 N. W. 992, 26 Hunt, 127 111. 278, 20 N. E. 55. L. R. A. 187, 45 Am. St. Rep. 473 5. Johnson v. Ins. Co., 56 Minn. and note; Charles v. Hastedt, 51 375, 57 N. W. 934, 59 N. W. 992, 26 N. J. Eq. 171, 26 A. 564. L. R. A. 187, 45 Am. St. Rep. 473 and note. 80 Ch. 3 INFANTS. §§ 63, 64 unless commenced within twelve montlis after the destruction by fire of his building. Such a stipulation is entirely fair and equitable and will hold the minor.^ § 64. Return of consideration. — The authorities agree that if the infant had in specie what he received under the contract, he must restore it, as condition of recovering what he parted with. The disagreement in the authorities is in cases where the infant cannot restore the benefits he has received; where he has expended them, or they are of such a character that they cannot be restored. The weight of authority is that when the infant's contracts are not for necessaries, he may avoid them at his election, and it is not necessary in order to do so to return the consideration received, to put the other party in statu quo, whether he has been benefited or not;^ that if the infant has wasted or squandered the consideration or property during infancy, he can rej)udiate the contract without making a tender,^ But if he has the con- sideration in possession the other party may recover it.^ 8. Mead. v. Phoenix Ins. Co.-"Brantly v. Wolf, 60 Miss. 420; (Kan.), 64 L. R. A. 79. Englebert v. Troxell, 40 Neb. 195, 1. Fox V. Drewry, 62 Ark. 316, 58 N. W. 842, 42 Am. St. Rep. 665; 35 S. W. 533; Chandler v. Sim- Bloomer v. Nolan, 36 Neb. 51, 53 mons, 97 Mass, 508, 93 Am. Dec. N. W. 103, 38 Am. St. Rep. 690; 117 and note; Morse v. Ely, 154 Hawes v. Railroad Co., 64 Iowa, Mass. 459, 28 N. E. 577, 26 Am. St. 315, 20 N. W. 71/ ; Carpenter v. Rep. 263; Boody v. MeKenney, 23 Carpenter, 45 Ind. 142; Beddinger Me. 517; Price v. Furman, 27 Vt. v. Wheaton, 27 Grat. (Va.) 857; 268, 65 Am. Dec. 194; Dube v. Dawson v. Holmes, 30 Minn. 107, Beauding, 150 Mass. 448, 23 N. E. 14 N. W. 462; Gillespie v. Bailey, 222, 15 Am. St. Rep. 228; Snell v. 12 W. Va. 7, 29 Am. Rep. 445; Harris, 51 Ark. 294, 11 S. W. 104. Lacy v. Pixler, 120 Mo. 383, 25 S. 2. Green v. Green, 69 N. Y. 553, W. 206; Shirk v. Shultz, 113 Ind. 25 Am. Rep. 233: Chandler v. Sim- 571, 15 N. E. 12; Lemmon v. Bee- mons, 97 Mass. 508, 93 Am. Dec. man, 45 Ohio St. 505, 15 N. E. 476; 117 and note; Reynolds v. McCurry, Young v. Railroad Co., 42 W. Va. 100 111. 346; Brandon v. Brown, 112, 24 S. E. 615; Brawner v. 106 III. 519; Crary v. Van Bebber, Franklin, 4 Gill. (Md.) 463; Gib- 100 Mo. 584, 13 S. W. 106, 18 Am. son v. Soper, 6 Gray (Mass.) 282, St. Rep. 569 and note; Harvey v. 66 Am. Dec. 414. Briggs, 68 Miss. 60, 8 So. 274; 3. Badger v. Phinney, 15 Mass. 81 § 64 FREEDOM OF CONTEACT, Ch. 3 In Texas it is indispensable to the disaffirmance by the infant on coming of age, that the consideration money for the property should be returned ; that such is the law of Spain and applied to Texas when it belonged to Mexico.* The general rule is that the restoration of the consideration, even when he has it, is not a condition precedent to his right to avoid the contract. After disaffirmance, the infant is regarded as holding the consideration, when he has it, in trust for the other party, who may recover it in any appropriate proceeding.^ And when the money is borrowed on a mortgage upon disaffirm- ance of the mortgage, a decree of sale may be entered upon fore- closure and the proceeds applied as follows : 1. Payment to the mortgagee, with interest, the sums paid by the mortgagee in discharge of the prior liens and the taxes upon the property. 2. Payment to the mortgagor or infant an amount equal to the value of the premises mortgaged at the in- stitution of the suit to foreclose, less such prior liens and taxes, without interest on that amount, and without taking into con- sideration the value of the improvements placed on the lands. 3. Payment to the mortgagee such of the proceeds of sale as may remain, not exceeding the balance due on the loan, with interest. If the property does not bring enough to pay the debt due the mortgagee, under the conditions stated, he will be without rem- edy for the deficiency.^ 359, 8 Am. Dec. 105; MacGreal v. Moreland, 10 Pet. (U. S.) 58; Mac- Taylor, 107 U. S. 688, 17 S. Ct. 961; Greal v. Taylor, 167 U. S. 688, 17 Mustard v. Wohlford, 15 Grat. 8. Ct. 961. (Va.) 329, 76 Am. Rep. 209. 6. MacGreal v. Taylor, 167 U. S. 4. Cummings v. Powell, 8 Tex. 688, 17 S. Ct. 961. See, also, Lynd 93; Kilgore v. Jordan, 17 Tex. 35; v. McGregor, 13 Allen (Mass.) 182, Stuart V. Baker, 17 Tex. 421; Bing- 90 Am. Dec. 188; Delllnger v. Foltz, ham V. Barley, 55 Tex. 281, 40 Am. 93 Va. 729, 25 S. E. 998; Darraugh Rep. 801. V. Blackford, 84 Va. 509, 5 S. E. 5. Association v. Herman, 33 542; Wilson v. Branch, 77 Va. 65, Md. 128; Cressinger v. Welch, 15 46 Am. Rep. 709 ; Mustard v. Wohl- Ohio, 156; Badger v. Phinney, ir> ford, 15 Grat. (Va.) 329, 76 Am Mass. 359, 45 Am. Dec. 565 ; Chand- Dec. 209 ; Bedinger v. Wharton, 27 ler V. Simmons, 97 Mass. 508, 93 Grat. (Va.) 857. Am. Dec. 117 and note; Tucker v. 82 Cll. 3 INFANTS. § 65 § 65. How affirmed or disaffirmed. — The general rule is that such contract may be affirmed by unequivocally recognizing its continuing existence and binding force. So it may be avoided by some distinct and positive act, leaving no room for doubt as to the intention. It may be effected by notice of dis- affirmance by suit, plea, or entry upon the land, or other un- equivocal act or dissent, or of confirmation as the case may be. So a contract of purchase of land may be disaffirmed by the infant after attaining his majority by acts manifesting distinct and unequivocally an election and intention to disaffirm, by an act of distinct and positive dissent whatever may be its form or expression.^ A tender is only material and essential as a con- dition to the right of either party to sue and recover in equity.^ It is at the election of the infant, after attaining majority, in cases of real contracts, to affirm or disaffirm the contract. Something must be done which expresses the purpose of the grantor to abide by the conveyance; mere acquiescence or pas- siveness will not have the effect, unless the vendee, with the knowledge of the grantor, is making expenditures on the prop- erty as he would not make, unless absolute owner.^ A mortgage made during infancy may be affirmed by a con- veyance after majority to a third person subject to the mort- gage. But such a deed which does not refer to the mortgage is rather a disaffirmance.* Entry will avoid the deed; but entry is not necessary in most of the States to avoid the deed.^ A voidable deed may be confirmed by a recital in a subsequent deed, with a design to ratify.^ A clause in a will directing the payment of all just debts does not impose on the executor lia- bility for the testator's note made during infancy.^ 1. Drake v. Ramsey, 5 Ohio, 251. Boston Bank v. Chamberlin, 15 2. Tunison v. Chamblin, 88 111. Mass. 220. 378; Singer Mach. Co. v. Lamb, 81 5. See. Pingrey's Real Prop., Mo. 22; McCarty v. Woodstock 1285. Iron Co., 92 Ala. 463, 8 So. 417. 6. Phillips v. Green, 5 Mon. 3. Wheaton. v. .East, 5 Yerg. (Ky.) 344. (Tenn.) 41, 62, 26 Am. Dec. 251; 7. Smith v. Mayo, 9 Mass. 62, 6 Allen V. Poole, 54 Miss. 323. Am. Dec. 28. See, also, Upshaw v. 4. Allen v. Poole, 54 Miss. 323; Gibson, 53 Miss. 341; Compare Mer- 83 §§ 65, 66 FREEDOM OF CONTEACT. Ch. 3 A new promise, positive and precise, is not now essential; but a ratification of what was done during minority, is sufficient to make the contract obligatory. All that is necessary is that the infant, after attaining his majority, shall expressly agree to ratify his contract by words, oral or in writing, or by acts which, import a recognition and a confirmation of his promise.^ So if an infant, after attaining majority, retains the property purchased by him during minority, for his own use, or sells or otherwise disposes of it, such detention, use or disposition, which can be conscientiously done only on the assumption that the contract of sale was a valid one, and by it the property be- came his own, is evidence of an intention to afiirm the contract, from which a ratification may be inferred, when he purchases land and goes into possession and continues in possession after his majority, for he thereby affirms the purchase and ratifies the contract of sale.^ A suit to enforce a contract is an affirmance of it.^° If he brings suit for the purchase-money, after becoming of age, this is a disaffirmance of his contract/^ Executing a warranty deed to a third party is a disaffirmance of his deed." § 66. Who may avoid. — Infancy is a personal privilege, and can only be set up by the party himself and not by the other party to avoid contracts and set aside titles made by him,^ chants' Fire Ins. Co. v. Grant, 2 So. 155; Buchanan v. Hubbard, 119 Edw. (N. Y.) 544. Ind. 187, 21 N. E. 538; Callia v. 8. Whitney v. Dutch, 14 Mass. Day, 38 Wis. 643. 460, 7 Am. Dec. 229 and note; Hart- 10. Ferguson v. Bell, 17 Mo. ley V. Wharton, 11 Adol. & El. 934; 347; Morrill v. Aden, 19 Vt. 505; Harris v. Wall, 1 Exch. 122; Good- Compare Kendrick v. Niesz, 17 sell, V. Myers, 3 Wend. (N. Y.) Colo. 506, 30 P. 245. 479; Delano v. Blake, 11 Wend. 11. Stack v. Cavanaugh, 67 N. (N. Y.) 85, 26 Am. Dec. 617. H. 149, 30 A. 350. 9. Henry v. Root, 33 N. Y. 526; 12. Scott v. Brown, 106 Ala^ Boyden v. Boyden, 9 Met. (Mass.) 604, 17 So. 731. 519; Hubbard v. Cummings, 1 Me. 1. Alsworth v. Cordtz, 31 Miss. 11; Boody v. McKenney, 23 Me. 32 ; Hartness v. Thompson, 5 Johns. 517; Bobbins v. Eaton, 10 N. H. (N. Y.) 100; Baldwin v. Rosier, 48 561; Ellis v. Alford, 64 Miss. 8, 1 Fed. Rep. 810. 84 Ch. 3 INFANTS. 66 and his personal representatives.^ An infant's contract cannot be avoided hj other parties in collateral proceedings.^ And as the privilege is for the benefit of the infant, it passes to his heirs or personal representatives.^ Privies in blood may take advantage of this privilege, but it does not pass to privies of estate merely with the infant.^ A lease executed by an infant cannot be avoided by the lessee by setting up the disability of the lessor.® An individual creditor cannot attach property conveyed by a debtor while a minor, the conveyance of which such debtor might have disafiirmed, and thus avail himself of the infant's privilege.^ Voidable acts by an infant, or matters of record 2. Patterson v. Liippincott, 47 N. J. L. 457, 1 A. 516, 54 Am. Rep. 17S; Towle V. Dresser, 73 Me, 252; Hastings v. Dollarhide, 24 Cal. 195; Davies v. Turton, 13 Wis. 185; Put- nam V. Hill, 32 Vt. 85; Monaghan V. Ins. Co., 53 Mich. 238, 18 N. 797 ; Parsons v. Hill, 8 Mo. 135; Person V. Chase, 37 Vt. 650; Smith v. Mayo, 9 Mass. 62, 6 Am. Dec. 28; Breckenridge v. Ormsby, 1 J. J. Marsh. (Ky.) 236, 248, 19 Am. Dec. 71. 3. Winchester v. Thayer, 129 Mass. 129; Doane v. Covel, 56 Me. 627; Holmes v. Rice, 45 Mich. 142, 7 N. 712; Sparman v. Keim, 83 N. Y. 245; Chapin v. Shafer, 49 N. Y. 407; Walsh v. Powers, 43 N. Y. 23, 3 Am. Rep. 654; Henry v. Root, 33 N. Y. 526, 536, 443 ; Emerson v. Carpenter, 17 Wend. (N. Y.) 419; Taft V. Sergeant, 18 Barb. (N. Y.) 320; Berdsley v. Ho^chkiss, 96 N. Y. 201; Harris v. Ross, 112 Ind. 314, 13 N. E. 873; Hooper v. Payne, 94 Ala. 223, 10 So. 431; Dentler v. O'Brien, 56 Ark. 49,19 S. W. Ill; Keane v. Boycott, 2 H. Bl. 511. 4. Dinsmore v. Webber, 59 Me. 103; Persons v. Chase, 37 Vt. 650; Wilson V. Porter, 13 La. Ann. 407; Nolte V. Libbert, 34 Ind. 163; Par- sons V. Hill, 8 Mo. 135 ; Bozeman v. Browning, 31 Ark. 364; Veal v. Fortson, 57 Tex. 482; Harris v. Ross, 86 Mo. 89, 60 Am. Rep. 411; Sharp V. Robertson, 76 Ala. 343; Harvey v. Briggs, 68 Miss. 60, 8 So. .:;74, 10 L. R. A. 62; Searcy v. Hun- ter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837; Illinois L. & Loan Co. v. Bonner, 75 111. 315. 5. Harris v. Ross, 112 Ind. 314, 13 N. E. 873; Shrock v. Cowl, 83 Ind. 243; Gillenwaters v. Campbell, 142 Ind. 529, 41 N. E. 1041; Price V. Jennings, 62 Ind. Ill; Singer Mach. Co. V. Lamb, 81 Mo. 221; Compare Beeler v. Bullett, 3 A. K. Mars. (Ky.) 280, 13 Am. Dec. 161; Jackson v. Burehim, 14 Johns. (N. Y.) 124; Walton v. Gaines, 94 Tenn. 420, 29 S. W. 458. 6. Field v. Herriek, 101 111. 110. 7. Kingman v. Perkins, 105 Mass. Ill; Kendall v. Lawrence, 22 Pick. (Mass.) 540; McCarty v. Murray, 3 Gray (Mass.) 578. 85 § 06 FREEDOM OF CONTRACT. Ch. 3 done or sufFered by him, can be avoided by none but himself or his privies in blood, and not by privies in estate ; and this right of avoidance is not assignable.^ And hence an assignee in insol- vency cannot avoid a mjortgage on real estate given bj an in- fant, and not ratified or disaffirmed by him after attaining his majority.^ The fact that the infant may rescind without returning the consideration when he has squandered it, and has received no benefit from the contract, indicates the right is strictly a per- sonal privilege, and that, as the rule permitting him thus to avoid his contract is established solely for his protection, so he alone also can have the benefit of it, and this privilege will not pass to his assignee in insolvency. But an absolute gift of articles of chattels made by an infant can be revoked or avoided by him or by his administrator,^" because the administrator is a personal representative of the deceased infant. But a person of full age contracting with an infant is bound absolutely although the infant has a right to avoid the contract. ^^ A holder of an infant's note must demand payment in order to hold the endorser. -"^ 8. Austin V. Charlestown Semi- nary, 8 Met. (Mass.) 196, 203, 41 Am. Dec. 497; Wettingliam's Case, 8 Co. 42b, 43a. 9. Mansfield v. Gordon, 144 Mass. 168, 10 N. E. 773. 10. Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630 ; Hussey v. Jewett, 9 Mass. 100; Jefford v. Ringgold, 6 Ala. 544; Parsons v. Hill, 8 Mo. 135. 11. Holt V. Clarencieux, Strange, 937; Field v. Herrick, 101 111. 110; Johnson v. Rockwell, 12 Ind. 76; Cannon v. Olsburg, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 709; Mon- aghan v. Ins. Co., 53 MicH. 238, 18 N. W. 797; Bruce v. Warwick, 6 Taunt. 118; Thompson v. Hamilton, 12 Pick. (Mass.) 425, 23 Am. Dec. 619. 12. Wyman v. Adams, 12 Cush. (Mass.) 210. 86 Ch. 3 INFANTS. § 67 ARTICLE IV. Estoppel of Infant by His Deceit. Section 67. Misrepresentation as to Age. 68. Tort Growing Out of Contract Relations. 69. Actions Ex Delicto 70. In Equity. 71. Actions to Avoid Contracts. § 67. Misrepresentations as to age. — It is the general rule at common law that simple misrepresentations by the infant, whereby the impression is conveyed that he is of age will not estop him from avoiding his contract.^ But if a tort arises from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract by a change of the form of ac- tion. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable. So an infant is liable for deceit in falsely rep- resenting himself to be of age, and thereby inducing a party 1. Cobbey v. Buchanan, 48 Neb. Ky. 500, IS S. W. 102, 36 Am. St. 391, 67 N. W. 176; Alt v. Graff, 65 Rep. 606; Nash v. Jewett, 61 Vt. Minn. 141, 68 N. W. 9; VVieland v. 501, 18 A. 97, 4 L. R. A. 561 and Kobick, 110 III. 16, 51 Am. Rep. note; 15 Am. St. Rep. 931; Mer- 676; Stack v. Cavanaugh, 67 N. H. riam v. Cunningham, 11 Cush. 149, 30 A. 350; Lockman v. Wood, (Mass.) 40; Gilson v. Spear, 38 25 Cal. 147; Conrad v. Lane, 26 Vt. 311, 88 Am. Dec. 659; Brown v. Minn. 386, 4 N. 695; Studwell v. McCune. 5 Sand. (N. Y.) 224, 228; fenapter, 54 N. Y. 249; Sims v. Curtin v. Patten, 11 Serg. & R. Everhardt, 102 U. S. 300; Whit- (Pa.) 305; Burdett v. Williams, 30 comb V. Joslyn, 51 Vt. 79, 31 Am. Fed. Rep. 607; Buney v. Russell, Rep. 678; Barnes v. Toye, 13 Q. B. 10 N. H. 184, 34 Am. Dec. 146; Mc- Div. 410; Johnson v. Lines, 6 Kaney v. Cooper, 81 Ga. 679, 8 S. Watts & S. (Pa.) 80, 40 Am. Dec. E. 312; Eaton v. Hin, 50 N. H. 235, 542; Monumental Asso. v. Herman, 9 Am. Rep. 189; Schnell v. Chicago, 33 Md. 151 ; Sewell v. Sewell, 92 38 111. 383, 87 Am. Dec. 3C4. 87 §§ 67, 68 FREEDOM OF CONTRACT. Ch. 3 to sell him goods on credit, and afterwards avoiding- his promise to pay by pleading infancy.^ So an infant who represents him- self to be of age as an inducement to one to purchase land, will be estopped by such fraudulent representation from having a court of equity cancel his deed.^ That is, the representation made by the infant must be fraudulent and be believed and relied on and acted upon by the other party ; then the infant is estopped from avoiding his contract.* § 68. Tort growing out of contract relations. — So the ma- jority of the decisions holds that if the wrong grows out of con- tract relations, and the real injury consists in the non-perform- ance of the contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform it, or omission of duty under it as a tort.'' So, as held by some courts, an infant is not liable for the value of the property obtained by means of misrepresentations.^ The doctrine that an infant is not estopped by the misrep- resentation that he is of age, when such misrepresentations are not fraudulent per se, is based upon the principle that one under the disability of infancy has no power to remove the disability by such representation, when he does not commit a fraud.^ 2. Fitts V. Hall, 9 N. H. 441; 67 N. W. Rep. 176; Pemberton Prescott V. Norris, 32 N. H. 103. Build. L. Asso. v. Adams, 53 N. 3. Ryan v. Growney, I2S Mo. 474, J. Eq. 258, 31 A. 280. The civil 28 S. W. 189; Schmitheimer v. law makes the minor responsible Eiseman, 7 Bush. (Ky. ) 298; Pat- for misrepresentations as to liis terson v. Lawrence, 90 111. 174, 32 age. Kilgore v. Jordan, 17 Tex. Am. Rep. 22; Adams v. Fite, 3 341; Carpenter v. Pridgen, 40 Tex. Baxt. (Tenn.) 69; Carpenter v. 32. Carpenter, 25 N. J. Eq. 194; Fergu- 5. Cooley on Torts, 106, 107; son V. Bobo, 54 Miss. 121; Hayes Addison on Cont. 1314. 511; Overton v. Banister, 3 Har. 6. Howlett v. Haswell, 4 Camp. 511; Overton v. Banister, 3 Hose, 118; Studwell v. Shapter, 54 N. Y. 503; Campbell v. Ridgeley, 13 Vict. 249; Vasse v. Smith, 6 Cranch (U. Law R. (Austral.) 701. S.), 226; Green v. Greenbank, 2 4. Baker v. Stone, 136 Mass. 405; Marsh. 485, 4 Eng. Com. L. 375. Cobbey v. Buchanan, 48 Neb. 391, 7. Carpenter v. Carpenter, 45 Ch. 3 INFANTS. § 68 So an infant is not liable for injury to propert}' in his posses- sion under contract of sale, if it is caused solely by his ignorance or want of skill.^ I^or is an infant liable for negligence in the performance of a contract for threshing grain, as a consequence of which there was a fire causing much loss.^ In England, misrepresentations as to his age or other matters, by which he obtains a contract, are insufficient to make an infant liable, for the reason that this w^ould be really an enforce- ment of the contract, and that the deception is a part of the con- tract. Massachusetts and Maryland have adopted the English rule. But the great weight of authority in the United States is contrary, and the infant is liable for such contract, and is es- topped to set up his infancy. In Iowa, Kansas, Utah, and Washington, the infant is estopped to disaffirm his contracts where on account of misrepresentations as to his majority, or from his having engaged in business as an adult, and the other party had good reasons to believe him capable of contracting. As to estoppel of an infant there are two classes of cases: 1. Where, in an action on a contract induced by the fraudulent misrepresentations that he was of age, and he sets up infancy as a defence. 2. Where he has given a deed of property, or exe- cuted a release for money due him, and then seeks to recover the property, or compel a second payment, upon the ground that he has elected to disaffirm his deed or contract of sale, or release, upon reaching his majority. Under the first class the weight of authority is, he is not estopped to avoid his contract, because es toppel would have the efi'ect of validating the contract, against the policy of the law. As to the second class, the weight of authority in the United States is that he is estopped. An infant's misrepresentations as to the property which he Ind. 142 ; Sims v. Everhardt, 102 8. Stack v. Cavanaugli, 67 N. H. U. S. 300; Whitcomb v. Joslyn, 51 149, 30 A. 350. Vt. 79, 31 Am. Rep. 678; Wieland 9. Loweiy v. Gate, 108 Tenn. 54, V. Koblick, 100 111. 16; Conrad v. 64 S. W. 1068, 57 L. R. A. 673 and Lane, 26 Minn. 389, 4 N. 695, 37 note reviewing the American and Am. Rep. 412 and note. English cases, 91 Am. St. Rep. 744. 89 §§ 68, 69 FREEDOM OF CONTRACT. Ch. 3 sells are regarded as part of the contract, for which he cannot be held liable. For injuries which an infant does to property in his hands as bailee, he is held not to be responsible, if the damages are occasioned simply by negligence, but if he damages the property by intentional wrong, he is held in most of the States liable, notwithstanding any stipulation to the contrary. For refusal to deliver goods which he has in his possession, he is liable. In contracts other than bailments the distinction be- tween mere negligence and deliberate wrongs is applied. § 69. Actions ex delicto. — So if the infant fraudulently and falsely represents that he is of full age, he is liable, by the weight of authority, in an action ex delicto for the injury re- sulting from his tort. This result does not involve a violation of the principle that an infant is not liable where the conse- quences would be an indirect enforcement of the contract, for the recovery is not upon the contract, as that is treated as of no effect ; nor is he made to pay the contract price of the goods pur- chased by him, as he is only held to answer for the actual loss caused by fraud ; he is guilty of a fraud by false pretenses, for which he is to answer under the criminal laws.^ This doctrine concedes the power of the infant to avoid his contract, but af- firms that he must answer for his positive fraud. ^ Under the civil law, 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,^ and this is the law, by statute, in lowa,^ Kansas,^ Utah and Washington. Infants are liable for frauds and torts to the same extent as adults, and where actions ex delicto are brought to make them 1. Neflf V. Landis, liO Pa. St. 3. Kilgore v. Jordan, 17 Tex. 204, 1 A. 177, 56 Am. Rep. 260. 341. 2. Rice V. Boyer, 108 Ind. 472, 4. Iowa Code, 2239; Childs v. 9 N. E. 420, 58 Am. Rep. 53; Wal- Dobbins, 55 Iowa, 2D5, 7 N. 496; lace V. Morss, 5 Hill (N. Y.),391; Jaques v. Sax, 39 Iowa, 367; Manning v. Johnson, 26 Ala. 446, Prouty v. Edgar, 6 Iowa, 353. 62 Am. Dec. 732 and note; Badger 5. Comp. L. ch. 67, sec. 3; Dil- V. Phinney, 15 Mass. 359, 8 Am. Ion v. Burnham, 43 Kans. 77, 22 P. Dec. 105. 1016. 90 Cll. 3 INFANTS. § 69 answerable therefor, they cannot escape the conseqviences of their acts, by reason of the fact that the tort or fraud was con- nected with a contract, unless it constituted the consideration of it. Whenever it does constitute the basis of the contract, as in an action for a breach of a fraudulent warranty, it cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action.^ But where goods are obtained by a minor upon the false affirmation that he was of age, the fraud vitiates the contract, and no title will rest in the infant, and he may be treated as having unlawfully con- verted them, and may be sued in trover or replevin.^ In some of the cases it is held that by a positive and willful tort in case of bailment, the bailment is determined and the remedy must be by action of trespass or trover, and that case will not lie f because the action on the case necessarily supposes the defendant or infant to have a right to the possession of the property, under the contract of hiring or other bailment, at the time the injury was committed, and by declaring in case the adult affirms the existence of the contract, and the plea of in- fancy will be a good defense to such action.^ This doctrine is assailable. If a wrong has been done to the property bailed of such nature that an action on the case would ordinarily lie, and at the same time an infant would be liable for it in any form of action, no reason exists for holding that case would not lie against the infant. In bringing an action on the case setting out such a positive and willful tort as is wholly inconsistent with the contract of bailment, and amounts to a disaffirmance of it, it may fairly be inferred that the plaintiff elects to consider 6. In re King, 3 DeG. & J. 63; 492; Oliver v. McClellan, 21 Ala. Ferguson v. Bobo, 54 Miss. 121; 675. Eice V. Boyer, 108 Ind. 472, 9 N. E. 7. Badger v. Phinney, 15 Mass. 420, 58 Am. Rep. 53. See, also, 359, 8 Am. Dec. 105; Story on Humphrey v. Douglass, 10 Vt. 71, Cont. 107, 111. 33 Am. Dec. 177 and note ; Lewis v. 8. Campbell v. Stakes, 2 Wend. Littlefield, 15 Me. 233; Wallace v. (N. Y.) 137, 19 Am. Dec. 561. Morss, 5 Hill (N. Y.), 391; Walker 9. Jennings v. Rundall, 8 Term V. Davis, 1 Gray (Mass.) 506; R. 335; Green v. Greenbank, 2 Hower v. Thwing, 3 Pick. (Mass.) Marsh. 485, 4 Eng. C. Law, 375. 91 § 69 PKEEDOM OF CONTRACT. Ch. 3 the bailment at an end, and this applies to an action on the case for a tort which disaffirms the contract, the same as to trespass or trover ; the latter is indeed but a subdivision of actions upon the case. Therefore, case should lie against an infant for a positive and willful tort of such a nature that, upon general principle of pleading, case is a proper remedy. ^° If and infant receives goods on a contract, and disposes of the property without right, he is liable in trover.^^ An infant bailee of a horse is not liable for treating him negligently or riding him immoderately, but is liable if he goes to a different place, or beats the animal to death ;^^ or if he has hired a horse, and willfuly and intentionally injures the animal, trespass will lie against him, or if he does any willful or posi- tive act which amounts to a disaffirmance of the contract; but if he neglects to use him with ordinary care, or to return him at the time agreed upon, he is not liable.^^ In a civil suit for seduction under a promise of marriage, the infant seducer cannot set up his infancy as a defense, for the seduction is a tort irrespective of the 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. This does not apply to execu- tory contracts which an infant refuses to perform, for, in such case, the action would be on the promise, and the only recovery that could be had would be for the breach of contract; but it will apply where an infant, on the faith of his false and fraudu- lent representations, obtains property from another and then repudiates his contract. Any other rule would generally suffer an infant of discretion, guilty of fraud, to escape loss, although 10. Eaton v. Hill, 50 N. H. 235, 12. 2 Greenl. on Ev. 368. 9 Am. Rep. 189. 13. Campbell v. Stakes, 2 Wend. 11. Vasse V. Smith, 6 Cranch (N. Y.) 137, 19 Am. Dec. 561; (U. S.) 231; Campbell v. Stakes, Towne v. Wiley, 23 Vt. 359, 56 Am. 2 Wend. (N. Y.) 137, 19 Am. Dec. Dec. 85. 561; Mills v. Graham, 1 Bos. & P. 14. Becker v. Mason, 93 Mich. N. R. 140. 336, 33 N. W. 361. 92 oil. 3 INFANTS. §§ 69, YO his fraud had enabled him to secure and make way with the property of one who had trusted in good faith to his representa- tions, and had exercised due care and dilegence.^^ § 70. In equity. — In, law it is conclusively presumed that a person within the age of twenty-one years is unfitted for busi- ness, and that every contract into which he enters is to his dis- advantage, and that he is incapable of fraudulent acts which will estop him from interposing the shield of infancy against the enforcement,^ but he is certainly liable in an action ex delicto for the injury resulting from his tort,^ provided the in' fant has arrived at such years of discretion that fraud may fairly be imputed to him.^ In equity this rigid rule of non-estoppel has its exceptions. Equity regards the circumstances surrounding the transaction, the appearance of the minor, his intelligence, the character of his representations, the advantage he has gained by the fraudu- lent representations, and the disadvantage to which the person deceived has been put by them, in determining whether the in- fant should be permitted to invoke successfully the plea of in- fancy.* Therefore, whenever an infant, who has arrived at the years of discretion, by direct participation, or by silence when he was called upon to speak, has entrapped a party, ignorance of his title or of his minority, into purchasing his property of another, he will be estopped in a court of equity from setting up such title. ^ In the code States, a court cannot deny substantial justice 15. Badger v. Phinney, 15 Mass. (Pa.) 305; Jennings v. Rundell, 8 359, 8 Am. Dee. 105; Mustard v. Term R. 335. Wohlford, 15 Gratt. (Va.) 329, 76 2. Rice v. Boyer, 108 Ind. 472, Am. Dec. 209; Vasse v. Smith, 6 9 N. E. 420, 58 Am. Rep. 53; 2 Cranch (U. S.), 226.' Kent's Com. 241; Vasse v. Smith, 1. Johnson v. Pie, 1 Lev. 169; 6 Cranch (U. b.), 226. Price V. Hewett, 8 Exch. 146 ; 3. Watts v. CresweH, 9 Vin. Abr. Liverpool, etc. Asso. v. Fairhurst, 415, 3 Eq. Cas. Abr. 515. 8 Exch. 422; Gilson v. Spear, 38 4. Hayes v. Parker, 41 N. J. Eq. Vt. 311, 88 Am. Dec. 659; Homer 630, 631, 7 A. 5ll. V. Thwing, 3 Pick. (Mass.) 492; 5. Ferguson v. Bobo, 54 Miss. Curtin v. Patten, 11 Serg. & R. 121; Curry v. Plow Co., 55 HL 93 §§ TO, 71 FREEDOM OF CONTKACT. Ch. 3 because the complaint states a cause of action in a peculiar form, for the court is bound to render such a judgment as yields justice to those who invoke its aid, irrespective of mere forms, in all cases where the substantial facts are stated, and are such as entitle the party to the general relief sought. It will not- inquire whether the proceeding which asks its aid is at law or in equity, but it will render justice to those who ask it in the method prescribed by the Code of Civil Procedure. § 71. Actions to avoid contracts. — In law, if the infant attaining majority, avoids his contracts, he must restore the consideration, or so much of it as he has, on demand. If the contract is executed, then in asserting his claim he must become the actor, and so going into court for equity he must do equity as a condition on which relief will be decreed him. This is the difference between asking and resisting relief, and he must tender the consideration or so much as he has.^ If the suit be at law, the tender of the consideration need not be made as a condition precedent of recovering property he had disposed of. If the suit be in equity that he brings, and if the money or con- sideration be in esse, and in his possession, or in him from whom the right to sue is derived, the bill, to be sufficient, must tender, or offer to produce or pay as the case may be. But if the quandam infant has, during minority, squandered or used the consideration, then no tender need be made.^ App. 82 ; 2 Pom. Eq. 945 ; Ex parte v. Cavanaugh, 67 N. H. 149, 30 A. Unity, etc., Asso., 3 DeG. & J. 63; 350; Johnson v. Ins. Co., 56 Minn. Charles v. Hastedt, 51 N. J. Eq. 365, 57 N. W. 930, 59 N. W. 992, 171, 26 A. 564; Bradshaw v. Van 26 L. R. A. 187, 45 Am. St. Rep. Winkle, 133 Ind. 134, 32 N. E. 877; 473 and note. Lacy V. Pixler, 120 Mo. 383, 25 S. 1. Smith v. Evans, 5 Humph. W. 206; Evans v. Morgan, 69 Miss. (Tenn.) 70; Bartholomew v. Fin- 328, 12 So. 270; Thormachlen v. nemore, 17 Barb. (K Y.) 428; Kaeppel, 86 Wis. 378, 56 N. W. Hillyer v. Bennett, 3 Edw. (N. Y.) 1089; Pemberton Build. & L. Asso. 222; Mustard v. Wohlford, 15 v. Adams, 53 N. J. Eq. 258, 31 A. Gratt. (Va.) 329, 76 Am. Dec. 209; 280; United States, etc., Invest- Bedinger v. Whorton, 27 Gratt. ment Co. v. Harris, 142 Ind. 226, (Va.) 857. 40 N. E. 1072, 41 N. E. 451; Stack 2. Eureka Co. v. Edwards, 71 94 Ch. 3 INFANTS. §§ 71, 72 Hence, where an infant has executed a deed to lands sold hj him, and received and consumed the purchase-money during his infancy, a bill averring this fact, filed by one claiming the land under a deed executed by the infant, after he had attained majority, to have the first deed canceled as a cloud upon his title, need not tender back the purchase-money received by the infant.^ And the fact that the last purchaser had notice of the first deed given by the infant is immaterial, because the dis- affirmance of the first deed destroyed all claims, both legal and equitable, and left him no pretense or any equity to assert against the later purchaser ;* the second grantee in such case stands in the shoes of his gTantor and can set up the right of the latter to avoid his deed after coming of age.^ ARTICLE V. GuAEDiAN^s Eight to Conteact foe. His Ward. Section 72. Guardian's Right to Contract for His Ward. 73. Guardian's Capacity to Contract for Ward. 74. Guardian's Title to the Ward's Property. 75. Personal Liability of the Guardian. § 72. Guardian's right to contract for his ward. — A guar- dian has no authority whatever to bind either the person or the estate of his ward by contract. For any reasonable expenditure made by a guardian, out of his own means, for the benefit of Ala. 248, 76 Am. Rep. 314; Good- Mustard v. Wohlford, 15 Gratt. man v. Winter, 64 Ala. 410, 38 Am. (Va.) 329, 76 Am. Dec. 209; Bart- Rep. 13; Badger v. Phinney, 15 lett v. Drake, 100 Mass. 174, il Mass. 359, 8 Am. Dec. 105; Price Am. Rep. 101. V. Furman, 27 Vt. 268, 65 Am. Dec. 3. Eureka Co. v. Edwards, 71 194; Green v. Green, 69 N. Y. 553, Ala. 248. 25 Am. Rep. 233; Phillips v. Green, 4. Eureka Co. v. Edwards, 71 5 T. B. Mon. (Ky.) 344; Roberts Ala. 248, 46 Am. Rep. 314. V. Wiggin, 1 N. H. 73, 8 Am. Dec. 5. Mustard v. Wohlford, 15 38; Walsh v. Young, 110 Mass. Gratt. (Va.) 329, 76 Am. Dec. 209. 396; Dill v. Bowen, 54 Ind. 204; 95 §§ T2, 73 FREEDOM OF CONTRACT. Ch. 3 his ward, he is entitled to be reimbursed out of the ward's estate, but this is the limit of the ward's liability, in law or equity. The gnardian has no authority or capacity to impose contract obligations on his ward. What he does for his ward must be done under the court of competent jurisdiction.*^ Hence, a guardian has no power to bind either the person or the estate of his ward by contract,^ even when made in his capacity as guardian.^ At common law a guardian was regarded as a trustee, clothed with such powers and rights as were necessary for the discharge of the trust imposed upon him, and he was held accountable for the faithful discharge of his duties. At the present time a guardian's duties are prescribed by statute, which, must be con- sulted in each State to know his duties and rights. He is under the probate court which approves or disapproves his transactions in dealing with the ward; and with this court he makes his final settlement and is discharged when his accounts are satis- factory. § 73. Guardian's capacity to contract for ward -The guar- dian cannot bind the person or the estate of his ward by a con- tract made by himself. Such contracts bind him personally, and a recovery for breach of it must be had in an action against him.^ But a guardian may be authorized, by a court of com- petent jurisdiction, to make a contract for his ward, but, in such case, he does not exercise a power belonging to his office, but an extraordinary power granted to him for a special purpose.^ 6. White V. Joyce, 158 U. S. 128, Ala. 493; Dalton v. Jones, 51 Miss. 15 S. Ct. 788; Sehouler on Doni. 585; Cheney v. Roodhouse, 135 III. Eel. 342-344. Compare Barnum v. 265, 25 N. E. 1019; Kingsbury v. Frost, 17 Gratt. (Va.) 398. Powers, 131 111. 188, 22 N. E. 479. 7. Reading v. Wilson, 38 N. J. 1. Hicks v. Chapman, 10 Allen Eq. 446. (Mass.), 463; Bicknell v. Bicknell, 8. Phelps V. Worcester, 11 N. H. Ill Mass. 265; Wallis v. Bard- 51; Tenney v. Evans, 14 N. H. 343, well, 126 Mass. 366. 40 Am. Dec. 194; McGavock v. 2. Reading v. Wilson, 38 N. J. Whitford, 45 Miss. 452; St. Jos- Eq. 446. eph'a Academy v. Augustine, 55 96 Cll. 3 INFANTS. §§ Id, 14:, 16 Without the authority of court, a contract by a guardian for the support and care of his ward binds the guardian personally, and not the ward.^ And so admissions of a guardian ad litem are not binding upon the infant if not supported by proof, and a decree based, thereon will not conclude him.* § 74. Guardian's title to the ward's property. — The title of the property remains in the ward. The guardian has only a naked power, not coupled with an interest. The debts of th© "ward remain his debts, and can be recovered by suit against him^ not by suit against the guardian;^ but such suit may be de- fended by the guardian in behalf of the ward. It is the guardian's duty to see that his ward is maintained and educated in a manner suitable to his means, and if, in the performance of this duty, it becomes necessary for him to enter into contracts, such contracts impose no duty on the ward and do not bind his estate, but bind the guardian personally and alone. For any reasonable expenditure made by a guardian, out of his own means, for the benefit of the ward, the court will allow him reimbursement out of the ward's estate, but this is the limit of the ward's liability, in equity or at law.^ § 75. Personal liability of the guardian. — A guardian can- not, by his own contract, bind the person or estate of his ward ; but if he promises on a sufficient consideration to pay the debt of his ward, he is personally bound by it, although he expressly promises as guardian. And a guardian who has discharged a debt of his ward, may lawfully indemnify himself out of the ward's estate ; or if he be discharged from his guar- dianship, he may have an action against the ward, for money 3. Rollins V. Marsh, 128 Mass. 344; Rollins v. Marsh, 128 Mass. 116. 116; Reading v. Wilson, 38 N. J. 4. White V. Joyce, 158 U. S. 128, Eq. 446; Compare Barnum v. 15 S. Ct. 788. Frost, 17 Gratt. (Va.) 398; Jacobia 1. Brown v. Chase, 4 Mass. 436; v. Terry, 92 Mich. 275, 52 N. W. Simons v. Almy, 100 Mass. 239. 629. 2. Sehouler on Dom. Rel. 342- 97 § T5 FREEDOM OF CONTRACT. Ch. 3 paid for his use.^ But he cannot maintain an action against his ward for money advanced or services rendered as guardian of the ward until he has settled his guardianship vi^ith the court,^ for an infant is liable to his guardian solely on a decree of the proper court on the adjustment of his guardian account.^ It is competent for a v^ard when he becomes of age to ratify and affirm a sale made by the guardian where it is invalid for a want of compliance with some statute requisite, or to avoid it within a reasonable time.^ 1. Sperry v. Fanning, 80 111. 3. Phelps v. Worcester, 11 N. H. .371. 51. 3. Smith V. PHlbriek, 2 N. H. 4. Tracy v. Roberts, 88 Me. 310, 395. 34 A. 68, 51 Am. St. Rep. 394. 98 CHAPTER IV. Contract Required to be in Writing — Statute of Frauds. ARTICLE I. The Statute — Sections Four and Seventeen. Section 76. When Enacted. 77. Section Four. 78. Section Seventeen. § 76. When enacted. — In 16Y6, an act was passed, entitled, "An Act for Prevention of Frauds and Perjuries." ^ It had for its object the "prevention of fraudulent practices, which are commonly endeavored to be upheld by perjury and subordina- tion of perjury." The author, it is thought, was Lord Notting- ham, though it has been ascribed to Lord Hale. The statutes of most of the States follow this enactment. Two sections affect the form of simple contracts — the fourth and the seventeenth. The State statutes are not exactly alike in all particulars, and, therefore, must be consulted to see the correct meaning. " The Statute of Frauds," as it is commonly called, has made a great change in the form of contracts. Before its enactment nearly every contract could be orally made, with the same effect as by writing. The requirement of writing to hold a party upon a represen- tation as to the character, credit and the like, of a third person, was enacted since the original English statute.^ 1. 29 Car. 2, c. 3. It took effect Vict., c. 59, sec. 2; 44 and 45 Vict., after the 24th day of June, 1677. c. 59, sec. 3. As to the modification of this stat- 2. 9 Geo. IV, c. 14, sec. o, com- ute in England, see 7 Will. 4, and monly called Lord Tentorden's Act. 1 Vict., c. 26, sec. 2; 42 and 43 99 §§ 77, 78 FREEDOM OF CONTEACT. Cll. 4 § 77. Section four. — The fourtli section is as follows : "ISTo action sliall be brought whereby to charge any executor or ad- ministrator, upon any special promise, to answer damages out of his own estate; or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or mis- carriage of another person; or to charge any person upon any agreement made upon consideration of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed 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 writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." § 78. Section seventeen. — Section seventeen is as follows ; " No contract for the sale of any goods, wares, and merchan- dise, for the price of ten pounds sterling or upwards, shall be allowed to be good ; except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract or their ag^ents thereunto lawfully authorized." 100 Ch. 4 STATUTE OF FRAUDS. § 79 AETICLE 11. CoNTKACTs Not Within Section Four. Section 79. Contracts Created by Law. 80. Executed Contracts. 81. Modification of Written Contracts Required by the Statute. 82. Executed on One Side. § 79. Contracts created by law. — Where the law raises a promise, it is not within the statute.'^ x\nd so where land is con- veyed by deed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain as- sumpsit for the non-performance of the duties reserved; and the promise, being created by law, is not within the statute,^ which applies only to contracts made in fact. So a suit can be brought on an implied contract to refund money which, in con- sequence of the vendor's misrepresentation in the sale of land, the grantee paid him in excess of the contract price.^ The statute of frauds applies only to common law agreements where the consideration is the subject of mutual agreements be- tween the parties, and not to instruments created under and derived from other obligations from special statutes, without the acceptance or assent of the parties for whose ultimate benefit they were given.* So where a statute requires an undertaking to be entered into by securities in order to give a right of appeal, an instrument containing the requisite stipulation is valid, al- though it does not express the consideration, and is not under seal.^ 1. Jackson v. Benson, 11 Johns. 11 A. 167. See, also, Sage v. Wilcox, (N. Y.) 91, 6 Am. Dec. 355; Jack- G Conn. 84. son V. Seelye, 16 Johns. ^N. Y.) 4. Thompson v. Blanchard, 3 N. 197, 8 Am. Dec. 306; Hills v. EI- Y. 335. liott, 12 Mass. 26, 7 Am. Dec. 26. 5. Doolittle v. Dinny, 31 N. 2. Goodwin v. Gilbert, 9 Mass. Y. 350. See, also, Smith v. Brad- 510. ley, 1 Root (Conn.), 150. 3. Arnold v. Garsf, 16 R. I. i, 101 §§ 80, 81 FREEDOM OF CONTRACT. Cll. 4: § 8o. Executed contracts. — A parol contract may be void- able by the statute of frauds ; but when such a contract has been fully executed and performed, it is no longer within the statute as between the parties who have already received its benefits.^ So when the terms of an instrument, required to be in writing under the statute of frauds, are afterwards modified by parol, and as so modified have been fully carried out, the obligation is discharged.^ The statute provides that " no action shall be brought where- by to charge " another on a parol contract ; so when it has been executed there is no occasion for an action, and the contract is valid.^ The statute applies to executory contracts therein indicated. If the contract is an original and personal contract, the statute does not apply. Thus, an oral executory contract of insurance, when not controlled by statute, is valid, as it is an original con- tract, and the statute of frauds has no application.* For such contract is not made to answer for the debt, default, or miscar- riage of another, but is an original contract between the in- surance company, represented generally by an agent, and the party to be insured.^ § 8i. Modification of written contracts required by the statute. — While written contracts, which would have been law- 1. McClellan v. Sanford, 26 Wis. 418, 29 P. 697; SEowalter v. Mc- 595; Niland v. Murphy, 73 Wis. Donell, 83 Tex. 158, 18 S. W. 491; 326, 41 N. W. 335; Pereaux v. btone v. Dennison, 13 Pick. (Mass.) Simon, 79 Wis. 392; Hagelin v. 1, 23 Am. Dec. 654. Wacks, 61 Mimi. 214, 63 N. W. 2. Doherty v. Doe, 18 Colo. 456, 624; Gardner v. Gardner, 106 Midi. 33 P. 65. 18, 63 N. W. 988 ; Wilson v. Fuller, 3. Bolton v. Tomlin, 5 Ad. & E. 58 Minn. 349, 59 N. W. 988; Ball v. 856; Slatter v. Meek, 35 Ala. 528; Stover, 82 Hun (N. Y.), 460, 31 Newman v. Nellis, 97 N. Y. 285. N. Y. S. 781; Largerfelt v. Me- 4. Croft v. Ins. Co., 40 W. Va. Kie, 100 Ala. 430, 14 So. 281; 508, 21 S. E. 854, 52 Am. St. Rep. Swanzey v. Moore, 22 111. 63, 74 902; Ins. Co. v. Colt, 20 Wall. (U. Am. Dec. 134; King v. Bushnell, S.) 560. 121 111. 656, 13 N. E. 245; Webster 5. Nat. Fire Ins. Co. v. Rowe V. Le Compte, 74 Md. 249, 22 A. (Ky.), 49 S. W. Rep. 422, 20 Ky. 232; Harris v. Harper, 48 Kan. L. R. 1473. 102 Ch. 4 STATUTE OF FRAUDS. §§ 81, 82 ful if unwritten, may be modified by parol subsequently in many cases, yet this cannot be done where the law requires the agreement to be in writing.^ So parol evidence cannot be re- ceived to show a subsequent verbal agreement to change any of the terms, as no part of the contract can rest in parol.^ In cases within the statute of frauds, an action cannot be maintained upon the contract not in writing; but in a controversy between parties to a written contract, an executed parol agreement to waive a particular provision in the contract may be sho^vn;' this is the general rule, though there are exceptions. If by part performance the contract is taken out of the stat- ute, and is then valid, a subsequent verbal modification of it, with respect to the manner of performance, is not within the statute.'* In such case there is no change in the terms of the original contract, but only the substitution, with respect to a single item of one mode of performance for another.^ § 82, Executed on one side. — It is the prevailing doctrine that the statute of frauds does not extend to actions for payment upon contracts which have been wholly executed within one year by one of the parties thereto.*^ This is the English rule and has been followed in Alabama, Arkansas, Georgia, Illinois, Indiana, Maine, Maryland, Missouri, Ohio, Ehode Island, South Carolina, and Wisconsin.^ The earliest and latest de- 1. Goss V. Nugent, 5 Barn. & 419; Cummings v. Arnold, 3 Met. Cr. 58; Stowell v. Robinson, 3 (Mass.) 486, 37 Am. Dec. 155; Bing. (N. C.) 928; Stead v. Daw- Packer v. Steward, 34 Vt. 127. ber, 10 Ad. & El. 57; Marshall v. 5. Goss v. Nugent, 2 Nev. &, Lynn, 6 Mees. & Wels. 109; Blood Man. 28. V. Goodrich, 9 Wend. (N. Y.) 68, 6. Donellan v. Read, 3 Bam. & 24 Am. Dec. 121 and note. Ad. 889; South v. Strawbridge, 2 2. Abell V. Munson, 18 Mich. C. B. 808; Cherry v. Heming, 4 306, 100 Am. Dec. 165. and note. Exch. 631; Si-ith v. Neale, '2 C. B., See, also, Rucker v. Harrington, 52 N. S. 67; Miles v. Aiford Estate Mo. App. 481. Co., 54 L. J. Eq. 1035, 1040. 3. Lee v. Hawks, 68 Miss. 669, 7. Rake v. Pope, 7 Ala. 161 9 So. 828, 13 L. R. A. 633 and note. Pledger v. Garrison, 42 Ark. 246 4. Blanchard v. Trim, 38 N. Y. Johnson v. Watson, 1 Ga. 348 225 ; Organ v. Stewart, 60 N. Y. Curtis v. Sage, 35 HI. 22 ; Haigh v. 103 § 82 FREEDOM OF CONTRACT. Ch. 4 cisions in ISTew Hampshire follow the English rule.^ But the contrary doctrine is held in Massachusetts, New York, and Vermont,^ The first doctrine holds that the statute does not extend to contracts which are wholly executed on one side, or which may be executed by one side within a year, but only to contracts which, as a whole, are not to be executed within a year; be- cause the words " not to be performed," mean not to be per- formed on either side within a year. And, inasmuch as the contract is not executory except as to the matter of payment, or recovery back of the consideration, as to which a clear right of action exists, such cases are not within the mischief which the statute is designed to prevent, and, therefore, not to be construed as within the operation of the statute. This is the weight of authority.'^" The minority of courts hold that performance by one party is not performance of the agreement, and that, in any view, the part of the contract sued upon comes within the statute, for w^hich the part performed is only the consideration.^^ Blythe, 20 Ind. 24; Holbrook v. Armstrong, 10 Me. 31; Ellicott v. Turner, 4 Md. 476; Suggett v. Cason, 26 Mo. 221; Randall v. Tur- ner, 17 Ohio St. 262; Durfee v. O'Brien, 16 R. I. 213, 14 A. 857; Compton V. Martin, 5 Rich. (S. Car.) 14; McClellan v. Sanford, 26 Wis. 596. 8. Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Emery v. Smith, 46 K H. 151; Perkins v. Clay, 54 N. H. 518. 9. Marcy v. Marcy, 9 Allen (Mass.), 8; Lockwood v. Barnes, 3 Hill (N. Y.), 128, 38 Am. Dec- 620 and note ; Broadwell v. Getman. 2 Denio (N. Y.), 87; Kellogg v. Clark, 23 Hun (N. Y.), 393; Pierce V. Paine, 28 Vt. 34. 10. Durfee v. O'Brien, 16 R. I. 213, 14 A. 857. 11. Pierce v. Paine, 28 Vt. 34. 104 Ch. 4 STATUTE OF FRAUDS. § 83 ARTICLE III. Sufficiency of Memorandum. Section 83. What is a Valid Memorandum. 84. Delivery of Note or Memorandum. 85. Letters, Telegrams, and Other Papers. 86. Evidence of Contract. 87. Sale by Auctioneer or Broker — Sufficiency of Memorandum. 88. Description of Parties. 89. Evidence to Identify Parties. 90. Parol Evidence to Identify Agent or Principal. 91. Terms of the Memorandum. 92. Description of Subject-Matter. 93. Consideration. 94. For Value Eeceived. 95. Seal — Consideration. 96. Guaranty — Consideration. 97. Signature. 98. ]\Iutuality of Agreement. 99. Signature by Agent. § 83. What is a valid memorandum. — A contract itself, and the memorandum which is necessary to its validity under the statute of frauds, are in their nature, distinct. The statute presupposes a contract by parol.^ The memorandum may be made at one time and the note or memorandum of it at a sub- sequent time. The contract may be proved by parol, and the memorandum may be supplied by documents and letters writ- ten at various times, if they all appear to have relation to it, and if coupled together, they contain by statement or reference all the essential parts of the bargain, signed by the party to be charged or his agent.^ When the memorandum of a sale of land contains the es- sential terms of the contract, the price to be paid and the date of the payment, all expressed with such certainty as that they may 1. Marsh v. Hyde, 3 Gray maeher, 9 Allen (Mass.), 412; (Mass.), 333. Townsend v. Kennedy, 6 S. Dak. 2. Williams v. Bacon, 2 Gray 47, 60 N. W. 164. (Mass.), 387; Lerned v. Wanne- 105 § 83 FREEDOM OF CONTRACT, Cll. 4 be understood from the writing itself, which was signed by the purchaser, it is sufficient.^ A stipulation not self-explanatory may be explained by other testimony, written or oral.* The memorandum must contain in substance the complete agreement in terms sufficiently lucid to be understood,^ and an oral acceptance of a written contract is sufficient, which may be proved by parol evidence.^ And such evidence may be ad- mitted as is admissible in interpreting ordinary contracts.' A vote of an authorized committee of a city, electing their clerk city engineer for a year from a subsequent date, duly re- corded and signed by him as clerk, is a sufficient memorandum.^ And a vote of a town council signed by its clerk, the town council having been made previously the agent of the town by vote in town meeting, is sufficient.' Entries by the party on his own or his agent's books are suffi- cient ;^° and also entries in the records of a corporation;^^ and recitals in a will to answer for the debts of a son.^^ In general, the memorandum must state the whole contract with reasonable certainty so that the names of the parties thereto and the substance thereof may be made to appear from the writing itself, without recourse to parol evidence.^^ 3. Reynolds v. Kirk, 105 Ala. 9. Marden v. Champlin, 17 R. I. 446, 17 So. 95. 423, 22 A. 938; Compare Wilhelm 4. Willis V. Hammond, 41 S. Car. v. Fagan, 90 Mich. 6, 50 N. W. 153, 19 ». E. 310. 1072. 5. Reid v. Kenworthy, 25 Kans. 10. Clason v. Bailey, 14 Johns. 701; Newbery v. Wall, 65 K Y. (N. Y.) 484; Coddington v. God- 484; Whalen v. Sullivan, 102 Mass. dard, 16 Gray (Mass.), 436; John- 204; Smith v. Jones, 66 Ga. 338, son v. Dodgson, 2 Mees. & Wels. 42 Am. Rep. 72. 653. 6. Lee v. Cherry, 85 Tenn. 707, 11. Tufts v. Plymouth, etc., Co., 4 S. W. 835, 4 Am. St. Rep. 800. 14 Allen (Mass.), 407. 7. Beckwith v. Talbot, 95 U. S. 12. In re Hoyle, 41 Weekly Rep. 289; White v. Core, 20 W. Va. 272. 81. 8. Chase v. Lowell, 7 Gray 13. Cheever v. Sehall, 87 Hun (Mass.), 33. See, also, Grimes v. (N. Y.), 32, 33 N. Y. S. 751; Mentz Hamilton County, 37 Iowa, 290; v. Newmiller, 122 N. Y. 491, 25 N. Johnson v. Church, 11 Allen E. 1044, 11 L. R. A. 97 and note, (Mass.), 123. 19 Am. St. Rep. 514. 106 Cb. 4 STATUTE OF FRAUDS. §§ 84, 85 § 84. Delivery of note or memorandum. — The statute itself is entirely silent on the question of delivery of the note or memorandum of the bargain, and its literal requirements are fulfilled by the existence of the note or memorandum of the bar- gain, signed by the party to be charged thereby. The statute deals exclusively with the existence and not Avith the custody of the paper ;^ that is, when the memorandum is evidence of an existing contract previously made by the parties, so delivery of it, in the sense in which that word is used in respect to deeds, is necessary, for the writing is not the substantive act or thing itself, as is a deed, but only the means by which the substantive act — the making of the contract — is shown to have been done ;^ the acceptance being unconditional, it is not material that it is never delivered to the party making the written offer or to any one for him.^ A deed must be delivered when used as a memorandum of an agreement to sell in fact,* or in escrow.^ Where an agreement is to be delivered before it becomes bind- ing, it does not take effect until such delivery, and is not, there- fore, a sufficient memorandum under the statute.^ § 85. Letters, telegrams and other papers. — In determining whether there is a written proof of a contract, all the papers must be considered. Where no one paper alone, which is form- 1. Drury v. Young, 58 Md. 546, 85 Ala. 286, 4 So. 748; Compare 42 Am. Rep. 343 and note. Ducett v. Wolf, 81 Midi. 311, 45 2. Townsend v. Hargraves, 118 N. W. 829. Mass. 325. 6. Parker v. ParKer, 1 Gray 3. Alford V. Wilson, 95 Ky. 506, (Mass.), 409; Cagger v. Lansing, 26 S. W. 539. 43 N. Y. 550; Campbell v. Thomas, 4. Swain v. Burnett, 89 Cal. 42 Wis. 437, 24 Am. Rep. 427; 564, 20 P. 1093; Wier y. Batdorf, Popp v. Swanke, 68 Wis. 364, 31 24 Neb. 83, 38 N. W. 22; Day v. N. W. 916; Weir v. Batdorf, 24 Lacasse, 85 Me. 242, 27 A. 124; Neb. 83, 38 N. W. 22; Conner v. Callanan v. Chapin, 158 Mass. 113, Baldwin, 16 Minn. 172; Johnson v. 32 N. E. 941. Brook, 31 Miss. 17, 66 Am. Dec. 5. Cannon v. Handfey, 72 Cal. 547 ; Callanan v. Chapin, 158 Mass. 133, 13 P. 315; Johnston v. Jones, 113, 32 N. E. 194. 107 § 85 FREEDOM OF CONTEACT. Cll. 4 ally signed, purports t^ express the terms of tlie contract, all the letters that have passed between the parties must be con- sidered in order to see what the contract actually was as shown by the writings.^ And if the letters of offer and acceptance contain all the terms agreed on between the parties, the com- plete contract thus arrived at cannot be affected by subsequent negotiations.^ A telegram is a sufficient memorandum to charge the sender.^ It is the general rule that two or more papers which have been executed as parts of one transaction may be read and con- strued together, in order to ascertain the scope and effect of the transaction, and whether it is within the statute of frauds.* !Nor are all the papers required to be signed by the party sought to be charged, provided those not thus signed are referred to in those which are signed. But the connection between such docu- ments must appear from the signed memoranda, and cannot be established by parol evidence.^ The courts have gone very far in construing referential words so as to connect several documents and collect the terms of the contract out of them. A correspondence through letters or tele- grams, or both, if they show clearly what the contract was, is sufficient under the statute. A meromandum of agreement is sufficient, and it may be found in one or more papers, some or 1. Hussey v. Hoine-Payne, 4 App. 483; McElroy v. Buck, 35 App. Cas. 311; Bristoe, etc., Co. v. Mich. 434. Maggs, 44 Ch. Div. 616; Bellamy 4. Townsend v. Kennedy, 6 S. V. Debenham, 45 Ch. Div. 481; V'il- Dak. 47, 60 N. W. 164; i.ee v. Ma- liams V. Smith, 161 Mass. 248, 37 honey, 9 Iowa, 348; Myers v. Mun- N. E. 455. son, 65 Iowa, 425, 21 N. W. 759; 2. Singleton v. Hill, 91 Wis. 51, Beckwith v. Talbot, 95 U. S. 289; 64 N. W. 588, 51 Am. St. Rep. 868; Alson v. Sharpless, 53 Minn. 91, 55 Bellamy v. Debenham, 45 Ch. Div. N. W. 125; Salmon Falls Manuf. 481; Pitcher v. Lowe, 95 Ga. 423, Co. v. Goddard, 14 How. (U. S.) 22 S. E. 678 ; Calverley v. Worth, 446, 456 ; American Oak Leather Co. 59 111. App. 553. v. Porter, 94 Iowa, 117, 62 N. W. 3. Trevor v. Wood, 36 N. Y. 307, 658. 93 Am. Dec. 511 and note ; Little 5. Boydell v. Drummond, 11 V. Dougherty, 11 Colo. 103, 17 P. East, 142; Coles v. Trecothic, 9 292; Whaley v. Hinchman, 22 Mo. Ves. 250; Eidgeway v. Wharton, 6 108 Cll. 4: STATUTE OF FRAUDS. §§ 85, 86 all of which may be telegrams f but such documents must show clearly what the contract is, and are so connected with each other that they may fairly be said to constitute one paper re- lating to the contract.' Filing a bill in chancery by a party who has not signed tho contract, takes the case out of the statute of frauds.^ The signature of the telegram-form amounts to and operates as a signature of the contract contained in the contract, and is valid under the statute of frauds.® And it is believed that the use of the sender's telegraphic sobriquet, in lieu of his own or his firm's name, would make no difference, and would be valid under the statute of frauds. The question is, whether a telo- gram is or is not a sufiicient memorandum within the statute; the courts universally say it is. § 86. Evidence of contract. — It is the general rule that the evidence necessary to take a contract out of the statute of frauds must be furnished by the writings, parol evidence not being admissible to supply evidence found in them.^° The memo- randum required by the statute must show, either on its face or by reference to some other writing, the contract between the H. L. Cas. 237; Blair v. Snodgrass, States, 136 U. S. 68, 10 S. Ct. 913; 1 Sneed (Tenn.), 1; Fowler Eleva- Beckwith v. Talbot, 95 U. IS. 289, tor Co. V. Cottrell, 38 Neb. 512, 57 29z; Ridgeway v. Wharton, 6 H. N. W. 19; Boardman v. Spooner, L. Cas. 238; Coles v. Treeotluc, 9 13 Allen (Mass.), 353, 90 Am. Dec. Ves. 234, 250; Cave v. Hastings, 196; Carter v. Shorter, 57 Ala. 7 Q. B. D. 125, 128; Long v. Millar, 256; Brown v. Whipple, 58 N. H. 4 C. P. D. 450. 229; North v. Mendel, 73 Ga. 400; 8. Peevey v. Haughton, 72 Miss. 54 Am. Rep. 879; Ridgeway v. 918, 17 So. 378, 18 So. 357, 48 Am. Ingram, 50 Ind. 145, 19 Am. Rep. St. Rep. 592. 706; Johnson v. Buck, 3'5 N. J. L. 9. Godwin v. Francis, 22 L. T. 338, 10 Am. Rep. 243; Thayer v. Rep. 338, L. R. 5 C. P. 295; Mc- Luce, 22 Ohio St. 62; Tice v. Free- Blain v. Cross, 25 L. T. Rep. 804. man, 30 Minn. 389, 15 N. 674. 10. Watt v. Cranberry Co., 63 6. Breckenridge v. Crocker, 78 Iowa, 730, 18 N. 898; Vaughn v. Cal. 534. 21 P. 179; Ryan V. United Smith. 58 Iowa, 558, 12 N. 604; States, 136 U. S. 68, 10 S. Ct. 913. Compare Salmon Falls Manuf. Co. 7. Elbert v. Gas Co., 97 Cal. v. Goddard, 14 How. (U. S.) 446. 244, 32 P. 9; Ryan v. United 456. 109 §§ 86, 87 FREEDOM OF CONTRACT. Ch. 4 parties, so that it can be understood without having recourse to parol proof ;^^ and it must contain the essential elements of the contract, including the consideration,^^ except in some States the consideration need not be expressed." The relation to each other of the documents relied on to satisfy the requirements of the statute must appear on their face and cannot be established by parol evidence.^* § 87. Sale by auctioneer or broker — Sufficiency of memo- randum. — An auctioneer is to be ordinarily treated as agent of both seller and purchaser of either real or personal property sold by him, and a memorandum of the sale signed by him is a sufficient written memorial of the contract to bind both parties.^ But the memorandum of a sale of land must show who the vendor is.^ The auctioneer's authority to sign cannot be dele- gated to others f though he may authorize another to make the outcry and the swinging of the hammer.* The signing of the memrandum by the auctioneer must be at the time of the sale, and cannot be made at a future time.^ These rules apply to a broker.® If the vendor is the auctioneer, the rules applicable to an 11. Parkhurst v. Van Cortland, Y. 491, 25 N. E. 1044, 11 L. R. A. 1 Johns. Cli. (N. y.) 273; Williams 97 and note, 19 Am. St. Rep. 514, V. Morris, 95 U. S. 444; Hale v. Sullivan v. Overton, 56 Conn. Hale, 90 Va. 728, 19 S. E. 739. 102, 14 A. 300. 12. Grafton v. Cummings, 99 U. 3. Stone v. State, 12 Mo. 400; S. 100. Commonwealth v. Hamden, 19 13. Hale v. Hale, 90 Va. 728, 19 Pick. (Mass.) 482. S. E. 739. 4. Commonwealth v. Hamden, 19 14. Fowler Elevator Co. v. Cot- Pick. (Mass.) 482. trell, 38 Neb. 512, 57 N. W. 19. 5. Gill v. Bicknell, 2 Cush. 1. Moore v. Taylor, 81 Md. 644, (Mass.) 355; Horion v. McCarty, 32 A. 320, 33 A. 886; Bent v. Cobb, 53 Me. 394; Bawber v. Savage, 52 9 Gray (Mass.), 397, 69 Am. Dec. Wis. 110, 8 N. 609, 38 Am. Rep. 295; McBrazer v. Cohn, 92 Ky. 479, 723; Jelks v. Barrett, 52 Miss. 515; 18 S. W. 123; Gill V. Hewitt, Gwathney v. Cason, 74 N. Car. 5, 7 Bush. (Ky.) 10, Sims v. Landray 21 Am. Rep. 484. U894)-, 2 Ch. 318. 6. Rucker v. Cammeyer, 1 Esp. 2. Mentz v. Newmiller, 122 N". 105. 110 Ch. 4 STATUTE OF FRAUDS. §§ 87, 88 auctioneer do not apply/ And so where the auctioneer departs before making a sale, and the vendor sells to a bidder, the clerk of the sale is not the agent of the purchaser, so that he can bind him by a memorandum.* Del credere is where the agent or factor, in consideration of an increase of commission, absolutely engages to pay to his prin- cipal the price of the goods which he sells for his consignor.' Such a contract is original contract, and absolute agreement that the price for which the goods were sold, or the debt created by the sale of the goods, shall be paid to the principal when the credit given on the sale shall have expired.^" The principal transfers a right in his own name to collect the debts and hold the money, accounting only for the net proceeds ; but this does not come under the statute of frauds." Some English cases^^ and a few American cases hold that the factor's liability is as a surety merely, and his contract of guaranty comes within the statute. But the great weight of American authority is to the effect that one who sells under such a com- mission is liable absolutely and originally to the principal, or consigTior, and, hence, the contract does not come within the statute of frauds.^^ § 88. Description of parties. — It is essential to the validity of an agreement or memorandum thereof, that it shall contain the names of both parties to the agreement. It is not necessary, 7. Bent v. Cobb, 9 Gray (Mass.), man, 6 Mo. App. 384; Wickham v. 397, 69 Am. Dec. 295. Wickham, 2 Kay & J. 478; Grover 8. Wyekoflf V. Mickle (N. J.),20 v. Dubois, 1 T. R. 112; Bize v. At. Rep. 214. Dickanson, 1 T. R. 285. 9. Xat. Cordage Co. v. Sims, 44 11. Sherwood v. Stone, 14 N. Y, Keb. 148, 62 N. W. 514. 267. 10. Bradley v. Richardson, 23 12. Morris v. Cleasby, 4 Maul. Vt. 720; Swan v. Nesmith, 7 Pick. &, Sel. 566; Peele v. Northcote, 7 (Mass.) 220, 19 Am. Dec. 282; Bui- Taunt. 478. lowav.Orga, 57 N. J. Eq. 428, 41 A. 13. Balderston v. Rubber Co., 18 494; Courturier v. Hastie, 8 Exch. R. I. 338, 27 A. 507, 49 Am. St. 40; Wolff V. Kappel. 5 Hill (N. Y.), Rep. 772; Lewis v. Brehm, 33 Md. 458; Osborne v. Baker, 34 Minn. 112. 307, 25 N. W. 606; Seeman v. In- Ill §§ 88, 89 FREEDOM OF CONTRACT. Cll. 4: however, that both parties shall sign it; all that is required is that it shall be signed by the party to be charged.^ So a memo- randum in the sale of real estate which does not contain the name of the purchaser or any description of him whatever is insufficient within the statute.^ So a memorandum of the sale of goods, which does not designate the seller and the buyer, is insufficient.^ The parties must be described with reasonable certainty.'* The ratio decidendi is that the language of the stat- ute cannot be satisfied unless the existence of a bargain or con- tract appears, evidenced in writing, and a bargain or contract cannot so appear unless the parties to it are specified therein nominally or by a description or reference.^ § 89. Evidence to identify parties. — It is essential that the memorandum shall show the parties. It is true that they need not be named. It is sufficient if they are described, and in that case, parol evidence is admissible to apply the description and identify the persons meant.^ In the absence of description, parol evidence is not admissible to describe the parties intended.^ 1. Williams v. Lake, 2 El. & El. Cummings, 99 U. S. 100; Lincoln 349; Sherbourne v. Shaw, 1 N. H. v. Preserving Co., 132 Mass. 129; 157, 8 Am. Dec. 47 ; Nichols v. Vandenburgh v. Spooner, L. R. 1 Johnson, 10 Conn. 192; Osborn v. Exch. 316; Fessenden v. Mussey, 11 Phelps, 19 Conn. 63, 48 Am. Dec. Cush. (Mass.) 127; Coddingham v. 133; Bailey v. Ogden, 3 Johns. (N. Goddard, 16 Gray (Mass.), 436, Y.) 399, 3 Am. Dec. 509. 444; McConnell v. Brillhart, 17 111. 2. Carriek v. Mincke, 1 Mo. App. 354, 65 Am. Dec. 661 and note; Mc- Eep. 67; Lewis v. Wood, 153 Mass. Elroy v. Seery, 61 Md. 389, 48 Am. 321, 26 N. E. 862, 11 L. R. A. 143. Rep. 110; Coombs v. Wilkes 3. Frank V. Eltringham, 65 Miss. (1893), 3 Ch. 77; Sherburne v. 281, 3 So. 665; Bailey v. Ogden, 3 Shaw, 1 N. H. 157, 8 Am. Dec. 47; Johns. (N. Y.) 399, 3 Am. Dee. Watt v. Cranberry Co., 63 Iowa, 509; Compare Thornton v. Kelly, 730, 18 N. 898. 11 R. I. 498. 5. Williams v. Byrnes, 1 Moore, 4. Champion v. Plummer, 1 Bos. P. C, N. S. 154, 195. & Pul. (N. C.) 25'2; Williams v. 6. Jones v. Dow, 142 Mass. 130, Byrnes, 1 Moore, P. C, N. S. 140, 7 N. E. 839; Catling v. King, 154; McGovern v. Hern, 153 Mass. 5 Ch. D. 660; Rossiter v. Miller, 3 308, 26 N. E, 861, 10 L. R. A. 875, App. Cas. 1124, 1141, 5 Ch. D. 648. 25 Am. St. Rep. 632; Grafton v. 7. Sale v. Lambert, 18 Eq. 1; 112 Ch. 4 STATUTE OF FRAUDS. §§ 89, 90 And the mere reference to a person selling as vendor is no de- scription.^ A signature is valid and binding, though made v^^ith the in- itials of the party only, as parol evidence is admissible to ex- plain and apply tliem.^ And parol evidence is competent to show who the principal is, when a factor has used a fictitious name in selling goods. ^"^ The parties must either be named or described in the memorandum in order to bind them ; if not named but described, then parol evidence may be admitted to identify them. § 90. Parol evidence to identify agent or principal. — • It is no objection to the sufficiency of a memorandum that the seller therein named is but an agent or the real owner; and on proof of the agency the latter may sue or be sued on the contract mad© by his agent.^^ So it is a sufficient compliance T\dth the statute that the contract to convey land be signed by one who is proved or admitted to have been authorized to execute it by the party to be charged therewith, although the ageut signed his own name instead of that of his principal, and the authority of the agent may be shown by parol. -^^ But such agent cannot show by parol that he is not the principal to the contract." A subscrip- Jones V. Dow, 142 Mass. 130, 140; 11. Gowen v. Klous, 101 Mass. Violett V. Powell, 10 B. Mon. (Ky.) 449. 347, 52 Am. Dec. 548; Thornton v. 12. Hargrave v. Adcock, 111 N. Kelly, 11 R. I. 498; Lerned v. Car. 166, 16 S. E. 16; Hippes v. Johns, 9 Allen (Mass.), 419. Griffin, 89 III. 134, 31 Am. Dec. 71; 8. Catling v. King, 5 Ch. D. 660, Mantz v. Maguire, 52 Mo. App. 665. 136; Williams v. Bacon, 2 Gray 9. Phillimore v. Barry ,1 Camp. (Mass.), 387; Sanborn v. Flagler, 513; Salmon Falls Manuf. Co. v. 9 Allen (Mass.), 477; Trueman v. Goddard, 14 How. (U. S.) 446; Loder, 11 Adol. & El. 589. See, Sanborn v. Flagler, . 9 Allen also, Wilson v. Hunter, 7 Taunt. (Mass.), 474; Palmer v. Stephens, 275; Cox v. Painter, 6 Ad. & El. 1 Denio (N. Y.), 471. 491. Compare Repetti v. Maisak, 6 10. Bibb V. Allen, 149 U. S. 481, Mackey (D. C), 3'66; Ciampet v. 13 S. Ct. 950; Compare Newcomb Bells, 39 Minn. 272, 39 N. W. 495. V. Clark, 1 Denio (N. Y.), 226; 13. Higgins v. Senior, 8 Mees. & Minard v. Mead, 7 Wend. (N. Y.) Wels. 834; Waring v. Mason, 18 68. Wend. (N. Y.) 425. 113 §§ 90, 91 FREEDOM OF CONTRACT. Cll. ,4 tion bj an agent of the party to be charged is sufficient under the statute, though the name or existence of a principal does not ap- pear upon the instrument.^"* On the same principle a partner may, by his individual signature, bind the firm if the contract is within the scope of the business of the firm, which may be shown by extrinsic evidence.^^ §91. Terms of the memorandum. — In order to satisfy the statute of frauds, the memorandum must contain the substantial terms of the agreement, expressed with such certainty that they may be understood without resort to parol evidence.^ ISTo particular form is required so long as it states the terms with reasonable certainty.^ Under the statute of frauds, if the subject-matter of the contract is within the statute, and the con- tract or memorandum is defective in some one or more of the essentials required by the statute, parol evidence cannot be re- ceived to supply the defects, for this would do the very thing prohibited by the statute.^ And if the memorandum refers to additional terms agreed on between the contracting parties, its terms not being evidenced by writing but left in parol, it is in- sufficient.* And so if the time for delivery of goods be fixed in 14. Dykers V. Townsend, 24 N. Y. !S. 100; Ringer v. Hoitzclaw, 112 57. Mo. 519, 20 S. W. 800. 15. Soaraes v. Spencer, 1 Dowl. & 2. Atwood v. Cobb, 16 Pick. R. 32; Higgins v. Senior, 8 Mees. (Mass.) 230, 26 Am. Dec. 657 and & Wels. 834; Williams v. Bacon, 2 note; Gordon v. Avery, 102 N. Car. Gray (Mass.), 387, 393. 532, 9 S. E. 486; Peck v. Vande- 1. Messmore v. Cunnington, 78 mark, 99 N. Y. 29, 1 N. E. 41. Mich. 623, 44 N. W. 145; Smith v. 3. Musselman v. Stover, 31 Pa Shell, 82 Mo. 215, 52 Am. Eep. St. 265; Gloss v. Hurlbert, 10! 365; North v. Mendel, 73 Ga. 400, Mass. 24, 3 Am. Rep. 418; Mould 54 Am. Rep. 879; Fry v. Piatt, 32 ing v. Prussing, 70 111. 151; Osbori^ Kan. 62, 3 P. 781; Williams v. Rob- v. Phelps, 19 Conn. 63, 48 Am. Dec. inson, 73 Me. 186, 40 Am. Rep. 133; Ringer v. Hoitzclaw, 112 Mo. 352; Lee v. Hills, 66 Ind. 474; 519, 20 S. W. 800, overruling O'Neil Banks v. Manuf. Co., 20 Fed. Rep. v. Cram, 67 Mo. 250, and Lash v. 667; Williams v. Morris, 95 U. S. Parlin, 78 Mo. 391. 444; Grafton v. Cummings, 99 U. 4. Lester v. Hefdt, 86 Ga. 226, 12 S. E. 214, 10 L. R. A. 108. 114 Ch. 4 STATUTE OF FRAUDS. §§ 91, 92 the verbal agroement of sale, such time must be incorporated in the memoranclnra.^ So the agreement for the sale of land, not specifying the purchase price, nor the time or times of pay- ment, is not sufficient.® When not made unnecessary by the statute, the price must be stated in the memorandum of sale,' unless an adequate price has been paid,^ or such is not required by statute.^ Parol evidence is not admissible to prove any substantial requirement of the memorandum.^" But the agreement required by the statute may sufficiently appear in a receipt signed by the defendant." § 92. Description of subject-matter. — The description of the subject-matter must be such as to be easily understood, so as to identify the property.^ A description of the sale of real es- tate is sufficient which gives the owner's name, the street and number of the lot ; the omission of the name of the city or town in which the lot is located, is not material f but if the owner's name had not been given, the memorandum would have been insufficient.^ Yv^here the description of the land is defective, but is suffi- ciently full for easy identification, the memorandum is suffi- cient.^ 5. Kreith v. Myer, 61 Md. 558. 183; Weil v. Willard, 55 Mo. App. 6. Webster v. Brown, 67 Mich. 370; Boyd v. Paul, 125 Mo. 9, 28 328, 34 N. W. 676; Gault v. Storm- y. W. 171. out, 51 Mich. 636, 17 N. 214; Mc- 11. Lewis v. Eeichey, 27 N. J. Elroy V. Buck, 35 Mich. 434. See, Eq. 240; Jones v. Tye, 93 Ky. 390, also, Elliott V. Barrett, 144 Mass. 20 S. W. 388. 256, 10 N. E. 820. 1. Beekman v. Fletcher, 48 Mich. 7. Phelps V. Stillings, 60 N. H. 555, 12 N. 37; Whelan v. Sullivan, 505; Phillips v. Adams, 70 Ala. 102 Mass. 204; Ellis v. Railroad 373; Ide v. Stanton, 15 Vt.' 68. Co., 7 Colo. App. 350, 43 P. 457. 8. Sayward v. Gardner, 5 Wash. 2. Price v. McKay, 53 K. J. Eq. 247, 31 P. 761, 33 P. 389. 588, 32 A. 130. 9. Hale v. Hale, 90 Va. 728, 19 3. Ross v. Allen, 45 Kans. 231, S. E. 739. 25 P. 570, 10 L. R. A. 835. 10. Oppenheim v. Waterbury, 4. Ellis v. Deadman, 4 Bibb 86 Hun (N. Y.), 122, 33 X. Y. S. (Ky.), 467; Hanly v. Blackford, 115 §§ 92, 93 FREiEDOM OF CONTKACT. Ch. 4 If the subject-matter cannot be identified by the terms of the memorandum, it is insuflScient.^ Where two tracks of land answer the description, the memorandum is insujfficient as parol testimony cannot be admitted to identify the land.® But when the memorandum identifies and furnishes the means of finding the land, it is suiRcientJ An agreement in writing for the conveyance of land, which does not, either in itself or by reference to any other writing, contain the means of identification of the boundaries, is within the statute, and is therefore insufficient.^ § 93. Consideration. — ^The statute of frauds in the various States are not alike as to whether the consideration must be expressed in the memorandum. Many of the statutes set forth that the consideration of a promise, contract or agreement need not set forth or be expressed in the vsrriting signed by the party to be charged therewith.^ This is the law in Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, Nebraska, New Jersey, Virginia, and West Virginia. 1 Dana (Ky.), 1, 25 Am, Dec. 114; S. W. 388; Doherty v. Hill, 144 Anderson v. Perkins, 94 Ky. 207, 21 Mass. 465, 11 N. E. 581. S. W. 1035; Mellon v. Dawson, 123 7. Eggleston v. Wagnor, 46 Mich. Pa. St. 298, 16 A. 431; Cassitt v. 610, 10 N. 37; Hobison v. Horn- Hobbs, 56 111. 231; Dougherty v. baker, 3 N. J. Eq. 60; White v. Chestnutt, 86 Tenn. 1, 5 S. W. 444; Hermann, 51 111. 243, 99 Am. Dec. Oliver v. Hunting, 44 Ch. D. 205; 543; Lento v. Clarke, 22 Fla. 515, Humber v. Brisbane, 25 S. Car. 1 So. 149; Phillips v. Swank, 120 506; Breckenridge v. Crocker, 78 Pa. St. 76, 13 A. 712, 6 Am. St. Cal. 529, 21 P. 179; Quinn v. Rep. 691; Frances v. Barry, 69 Champagne, 38 Minn. 322, 37 N. Jlich. 311, 37 N. W. 353. W. 451. 8. Atwood v. Cobb, 16 Pick. 5. Weil V. Willard, 55 Mo. App. (Mass.) 227, 26 Am. Dec. 657 and 376; Doherty v. Hill, 144 Mass. note; Morton v. Dean, 13 Met. 465, 11 N. E. 581; Taylor v. Allen, (Mass.) 385; Hurley v. Brown, 98 40 Minn. 433, 42 N". W. 292 ; Lowe Mass. 545 ; Whelan v. Sullivan, 102 V. Harris, 112 N. Car. 472, 17 S. E. Mass. 204; White v. Breen, 106 539, 22 L. R. A. 379 and note; Ala. 759, 19 So. 59; Lingeman v, Brockway v. Frost, 40 Minn. 155, Shirk, 15 Ind. App. 432, 43 N. E. 41 N. W. 411; Repetti v. Maisak, 6 33. Mackey (D. C), 366. 9- Haye« v. Jackson, 159 Mass. 6. Jones V. Tye, 93 Ky. 390, 20 451, 34 N. E. 683; Compare Grace 116 Ch, 4 STATUTE OF FBAUDS. §§ 93, 94 It has been held in England that the promise is not binding under the statute unless the consideration which forms part of the agreement be also stated in writing/" But the old English doctrine" has been changed by statute/^ because it was found in practice that it led to many unjust and merely technical defences to actions upon guaranties. In some of the States it has been held unnecessary to state the considera- tion, even when there is no provision that it need not be inserted in the memorandum, although the consideration was executory." § 94. For value received. — It has been repeatedly held that the words " for value received " sufficiently comply with the statute which requires the consideration to be expressed.^ Hence, the words " for value received " are a sufficient statement of the consideration in a written guaranty of the payment of a bond and mortgage to constitute a valid contract under the statute.' The former rule in New York, that contracts of guaranty are void under the statute unless their consideration ^vas expressed upon the face of the instrument itself,^ has been modified, and V. Denison, 114 Mass, 16. See, also, 1. Day v. Elmore, 4 Wis. 214; Siemens v. Siemens, 65 Minn. 194, Watson v. McLarin, 19 Wend. (N. 60 Am. St. Rep. 430 and note; Y.) 557; Miller v. Cook, 23 N. Y. Straight v. Wright, 60 Minn. 515, 495; Osborne v. Baker, 34 Minn. 63 N. W. 103. 307, 25 N. W. 606, 57 Am. Rep. 55; 10. Wain V. Walters, 5 East, 10; Brooks v. Morgan, 1 Har. (Del.) Deutsch V. Bond, 46 Md. 164; Buck- 123; Whitney v. Stearns, 16 Me. ley V. Beardsiey, 5 N. J. L. 572, 8 394; Johnson v. Wadsworth, 24 Am. Dec. 620; Taylor v. Pratt, 3 Oreg. 494, 34 P. 13; Smith v. Wis. 674; Ellison v. Jackson Water Xorthrup, 80 Hun (N. Y.), G5, 29 Co., 12 Cal. 542; Thompson v. Blan- X. Y. S. 851; Drake v. Seaman, 97 chard, 3 N. Y. 335; Hargraves v. X. Y. 230; Emerson v. Aultman, Cooke, 15 Ga. 321. 60 Md. 125. 11. Wain V. Walters, 5 East, 10. 2. Smith v. Xorthrup, 80 Hun 12. 19 and 20 Vict. c. 97, sec. 3; (X. Y.), 65, 29 X. Y. S. 851. In re Eyre, 13 Reports, 670. 3. Union Bank v. Coster, 3 N. ?3. Camp V. Moreman, 84 Ky. Y. 211. 53 Am. Dec. 280 and note; 635, 2 S. W. 179; Violett V. Patton, Xewcomb v. Clark, 1 Denio (N. 5 Cranch (U. S.), 142; Ellis v. Y.), 226. Bray, 79 Mo. 227; Thornburg v. Masten, 88 X. Car. 293. 117 §§ 94:, U5, 9G FKEEDOM OF CONTRACT. Ch. 4 where the nature of the consideration is fairly inferable from the contract, it will satisfy the requirements of the statute.* And this is the law in other States. It is sufficient if, from the writing it appears with reasonable clearness what the considera- tion is.^ § 95. Seal — Consideration. — A seal is a sufficient expres- sion of the consideration, when the statute of frauds requires an agreement or memorandum for sale of lands to express a con- sideration.^ An instrument under seal is held not void under the statute, although no consideration is in terms stated therein, upon the ground that the seal imports consideration.'^ A cove- nant under seal is not within the statute requiring agreements to be in writing expressing the consideration.^ § 96. Guaranty — Consideration. — In many of the States, as Alabama, Minnesota, ISTevada, and Oregon, a consideration expressed is necessary. That is, the consideration must appear with reasonable clearness.^ So a guaranty of a note, under such doctrine, written by a third person on the note before delivery, need not express a consideration, since the guaranty requires no other consideration than that which the note or its face implies to have passed between the original parties, but it is otherwise if the guaranty is written after the note has been delivered and taken effect as a contract.^ Where the nature of the consideration for the guarantor's undertaking is fairly inferable from the written provision of 4. Smith V. Northrup, 80 Hun Howland, 24 Wend. (N. Y.) 45; (N. Y.), 65, 29 N. Y. S. 581; Gates Barnum v. Childs, 3 Super. Ct. (N. V. McKee, 13 N. Y. 232, 64 Am.T Y.) 58. Dec. 545; Church v. Brown, 21 N._ 7. McKenzie v. Farrell, 4 Bosw. Y. 315; Douglass v. Howland, 24:p: (N. Y.) 207. Wend. (N. Y.) 35. B^Z 8. Smith v. Northrup, 80 Hun 5. Straight v. Wight, 60 Minn.^(N. Y.), 65, 29 N. Y. S. 851. 515, 63 N. W. 105; Hayes v. Jack-|^; 1. Straight v. Wight, 60 Minn, son, 159 Mass. 451, 34 N. E. 683. |^515, 63 N. W. 105. 6. Johnston v. Wadsworth, 24 ^j 2. Moses v. Lawrence Co. Bank, Oreg. 494, 34 P. 13; Douglass v.tZ 149 U. S. 298, 13 S. Ct. 900. 118 Ch. 4 STATUTE OF FRAUDS. § OG ffuarantv, it is sufficient iiuder the statute.' When the contract is merely one of guaranty, it is manifestly within the terms of the statute, and the contract must be in writing. And there must be a principal debtor, and the promise must be made to the creditor to whom the principal debtor has already or is there- after to become liable. The guarantor must agree to pay if the debtor does not, and the promise must be in writing.'* However, in some jurisdictions, it is held to be a presumption of law, that if any contract, beneficial to the guarantor, is the object sought to be obtained by his promise, he must be understood to intend an original undertaking which is not within the statute.^ So the promise to pay the debt of an infant, made upon a suffi- cient consideration, is a promise to pay the debt of another and must be in writing to be enforceable ; the doctrine that there was no debt because the principal debtor was a minor, cannot prevail.'' However, some courts hold that in case of a guaranty of a person's contract who is incapacitated to contract, the guar- antor is not liable. Because, so soon as the incompetent princi- pal sets up his inability to make the contract, the debt cannot be collected either from him or of his guarantor; that the party guarantied something that did not exist and hence he is not liable.'^ But under this rule the guarantor would become liable on an original undertaking, and he is therefore liable as on any other debt he may contract f and the rule applied to the guar- anty of an ultra vires contract. It is void and cannot be en- 3. Smith V. Noiihrup, 80 Hun Ala. 452; Chapline v. Atkinson, 45 (N. Y.), 65, 29 JS. Y. S. 851. See, Ark. 67, 55 Am. Rep. 531; Lerch v. also, Ryde v. Curtis, 8 Dowl. & R. Gallup, 67 Cal. 595, 8 P. 322. 62; Kennaway V. Trelevan, 5 Mees. 6. Dexter v. Blanchard, 11 Met. &Wel. 493; Newbury v. Armstrong, (Mass.) 365; Davis v. Statts, 43 6 Bing. 201; Button v. Padgett, 26 Ind. 103, 13 Am. Rep. 382. Md. 228. 7. King v. Summit, 73 Ind. 312, 4. Elder v. Warfierd,'7 H. & J. 38 Am. Rep. 145; Smith v. Hyde, (Md.) 391; Birkmyr v. Darnell, 19 Vt. 54. Salk. 27; Spear v. Bank, 156 111. 8. Harris v. Huntbacfi, 1 Burr, 555, 41 N. E. 164. 373. 5. Westmoreland v. Porter, 75 119 §§ 96, 97 FREEDOM OF CONTRACT. Ch. 4 forced against the corporation, but the original promise of the guarantor can be enforced against hiin.^ The general rule is that fin oral promise by one person to in- demnify another for becoming a guarantor for a third person is not within the statute, and need not be in writing, for the as- sumption of the responsibility is a sufficient consideration for the promise.^** But there is another line of cases that hold that an indemnity contract is within the statute and must be in writing, because whenever there is a liability in existence, a performance of which by the debtor will put an end to liability upon special promise, the special promise amounts to a promise to pay the debt of another and must be regarded as collateral to it, and therefore it comes under the statute." § 97- Signature. — The contract must be signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.^ To be clearly in the handwriting of the party to be charged is not sufficient.^ And the unsigned memo- randum of an auctioneer unconnected by annexation or refer- ence with any writing duly authenticated by the signature of the party sought to be charged or his duly authorized agent, is not a part of the memorandum required by the statute.^ While the writing must be signed, it is not always necessary 9. Drake v. Flewellen, 33 Ala. 1. Brown v. Wliipple, 58 N. H. 106. 229; Thiebaud v. Furniture Co., 10. Jones V. Bacon, 145 N. Y. 143 Ind. 340, 42 N. E. 741; San- 446, 40 N. E. 216; Rose v. Wallen- born v. Sanborn, 7 Gray (Mass.), berg, 31 Oreg. 260, 44 P. 382; Guild 142; Washington Ice Co. v. Web- V. Conrad (1894), 2 Q. B. 885; ster, 62 Me. 341, 16 Am. Rep. 462; Wildes V. Dudlow, 19 Eq. 198; Guthrie v. Anderson, 47 Kan. 383, Pingrey on Suretyship and Guar. 28 P. 164; McElroy v. Seery, 61 382; Resseter v. vVaterman, 151 Md. 389, 48 Am. Rep. llO. 111. 109, 37 N. E. 875. 2. Champlin v. Parish, 11 Paige 11. May V. Williams, 61 Miss. (N. Y.), 405; Selby v. Selby, 3 125, 48 Am. Rep. 80; Bissig v. Brit- Merv. 2. ton, 59 Mo. 204, 21 Am. Rep. 379; 3. Rafferty v. Lougee, 63 N. H. Farrell v. Maxwell, 28 Ohio St. 383, 54 ; O'Donnell v. Lieaman, 43 Me. 22 Am. Rep. 393; i\ugent v. Wolfe, 158, 69 Am. Dee. 54; Horton v. Mc- 111 Pa. St. 471, 4 A. 15. Carty, 53 Me. 394; Brown v. Whip- 120 Ch. 4 STATUTE OF FRAUDS. 97,98 that the party's name shall appear at the end of the contract, unless he must subscribe it.^ § 98. Mutuality of agreement. — Whether the agreement must be signed by both parties, in order to bind them, is a dis- puted question. The cases are incapable of being reconciled. A large and respectable class holds 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 that it is no objection to maintaining such suit and recovering upon the contract that the other party did not sign and was not bound by the terms.^ Another and equally prominent class of cases holds that unless the party bringing the action is bound by the contract neither is bound because of the want of mutuality.^ pie, 58 N. H. 229; Gardels v. Kloke, 36 Neb. 493, 54 N. W. 834; Moore v. Chenault, 29 S. W. 140, 16 Ky. L. Rep. 531; Durham, etc.. Im- provement Co. V. GfutLrie, 116 N. Car. 381, 21 S. E. 952; Howell v. Shewell, 96 Ga. 454, 23 S. E. 310, 51 Am. St. Rep. 148. 4. New England, etc., Co. v. Worsted Co., 165 Mass. 328. 43 X. E. 112, 52 Am. St. Rep. 516; Tour- ret V. Cripps, 4B L. J. Ch. N. S. 567. 1. Smith's Appeal, 69 Pa. St. 480; Tripp v. Bishop, 56 Pa. St. 428; Perkins v. Hadsell, 50 111. 217; Old Colony Railroad Co. v. Evans. 6 Gray (Mass.), 31, 66 Am. Dec. 394; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 353; Love v. Welch, 97 N. Car. 200, 2 S. E. 24; DuTliam, etc., Improvement Co. v. Guthrie, 116 N. Car. 381, 21 S. E. 952; Jones v. Davis, 48 N. J. Eq., 493, 21 A. 1035; Cavanaugh v. Cas- selman, 88 Cal. 543, 26 P. 515; Hodges V. Kowiug, 58 Conn. 12, 18 A. 979, 7 ju. R. A. 87; Justice v. Lange, 42 N. Y. 493; Morin v. Martz, 13 Minn. 191; Dliver v. Ins. Co., 82 Ala. 417, 2 So. 445; Gart- rell V. Stafford, 12 Neb. 545, 11 N. 732, 11 Am. Rep. 167; Reuss v. Picksley, L. R. 1 Exch. 342; Cun- ningham V. Williams, 43 Mo. App. 629; Anderson v. Harold, 10 Ohio, 399; Douglass v. Spears, 2 Nott. & McC. (S. Car.) 207, 10 Am. Dec. 588; Shirley v. Shirley, 7 Blacki. (Ind.) 452; Smith v. Neale, 2 C. B., N. S. 67; Clason v. Bailey, 14 Jonhs. (N. Y.) 488; Parton v. Crofts, 16 C. B., N. S. 11; Farwell V. Lowther, 18 111. 252; Cheney v. Cook, 7 Wis. 413; Vassault v. Ed- wards, 43 Cal. 458. 2. Lees v. Whiteomb, 3 Craig & P. 289 ; Sykes v. Dixon. 9 Ad. & El. 693; Krohn v. Bautz, 6g Ind. 277; Stiles V. Mcaellan, 6 Colo. 89 ; Wil- kinson v. Ileavenrieh. 58 Mich. 574, 26 N. W. 139. 55 Am. Rep. 708; 121 §§ 98, 99 FKJEEDOM OF CONTRACT. Ch. 4 It is a general principle in the law of contracts, but not with- out exceptions, that an agreement entered into between parties competent to contract, in order to be binding, must be mutual ; and this is especially 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 con- sideration for the promise of the other, the agreement is void for want of mutuality.^ The weight of authority is that the statute of frauds is satis- fied by the signature to the contract of the party sought to be charged only, whether the suit to enforce it be at law or in equity, and whether it relates to the sale of real or personal estate.* § 99- Signature by agent. — The party to be charged may au- thorize a signing of the memorandum by his agent.^ But if the agent goes beyond his authority, his signing is invalid.*^ In the absence of a statutory provision to the contrary, the authority of an agent to sign the memorandum may be verbal.^ In some States, contracts relating to land require that the agent's au- Corbett v. Gaslight Co., 6 Greg. 405, 25 Am. Rep. 541 and note; Thomas V. Trustees, 3 A. K. Marsh. (Ky.) 298, 13 Am. Dec. 1G5. 3. Hopkins v. Logan, 5 Mees. & Wei. 241; Dorsey v. Packwood, 12 How. (U. S.) 126; Ewins v. Gor- don, 49 N. H. 444; Hoddesdon Gas Co. V. Haselwood, 6 C. B., N. S. 239; Souch v. Strawbridge, 2 C. B. 808; Callis v. Bothamly, 7 Wkly. 87; Sykes v. Dixon, 9 Ad. & EI. 693; Lester v. Jewett, 12 Barb. (N. Y.) 502; Utica, etc., R. R. Co. v. Brinckerhoff, 21 Wend. (N. Y.) 139, 34 Am. Dec. 220. 4. Clason v. Bailey, 14 Johns. (N, Y.) 184; McCrea v. Purmont, 10 Wend. (N. Y.) 450, 30 Am. Dee. 103 and note; Richardson v. Greeu, 23 N. J. Eq. D3t); Old Colony R. R. Co. V. Evans, (i Gray ( Hass. ) , 33, G6 Am. Dee. 394; Sutherland v. Briggs, 1 Hare, 34; Hodges v. Row- ing, 58 Conn. 12, 18 A. 979. 5. Heffron v. Arnsly, 61 Mich. 505, 28 J^. W. 072. 6. Henderson v. Beard, 51 Ark. 483, 11 S. W. 706. 7. Roehl V. Haumesser, 114 Ind. 311, 15 N. E. 345; Kennedy v. Eblen, 31 W. Va. 540, 8 S. E. 398; Watson V. Sherman, 88 111. 263; Moore v. Taylor, 81 Md. 644, 32 A. 320, 33 A. 886. 122 Cll. 4 STATUTE OF FKAUDS. §§ 99, 100 thority must be in writing.^ The agent must be some third party who has no interest in the subject-matter.^ When an agent has the power to make a contract for the sale of landj but no power to make a deed, and makes a deed, the in- strument is void as a deed, the deed is good in equity as a con- tract to convey, and if a party enters upon the land under such an instrument, he is, in equity entitled to retain possession/" AKTICLE IV. Remedies on the Conteact. Section 100. No Action to Be Brought. 101. Void and Voidable. 102. Performance in Part — At Law. 103. Part Performance — In Equity. 104. What is Part Performance. 105. Possession of Land and Improvements. 106. Parol Gift of Real Estate. 107. Specific Performance of Agreement. 108. Personal Services and Conveyance of Personal Property. 109. Recovery of Money Paid. 110. Services Rendered or Benefits Received. 111. Use and Occupation. 112. Defense. 113. Who May Take Advantage of the Statute of Frauds. 114. Waiver of Statute in Action for Breach of Contract. 115. Conflict of Laws. 116. Conflict of Laws — Statute of F'-auds. § 100. No action to be brought. — The statute provides that " no action shall be brought whereby to charge " another on an unwritten contract.^ 8. Lasher v. Gardner, 124 111. 10. Groflf v. Ramsey, 19 Minn. 44; 441, 16 N. E. 919; Kozel v. Dear- Thomas v. Joslin, 30 Minn. 388, 15 love, 144 111. 23, 32 N. E. 542, 36 N. 675; Baum v. Dubois, 43 Pa. St. Am. St. Rep. 416; Pratt V. Butcher, 260; Morrow v. Higgins, 29 Ala. 112 Cal. 634; 44 P. 1060; Hall v. 448; Ledbetter v. Walker, 31 Ala. Wallace, 88 Cal. 434, 26 P. 360; 175; Worrall v. Munn, 5 N. Y. Gerhart v. Peck, 42 Mo. App. 644; 229, 5o Am. Dec. 330 and note; Williams v. Mershon, 57 N. J. L. Long v. Hartwell, 34 N. J. L. 116; 242, 30 A. 619. Lobdfll v. Mason, 71 Miss. 937, 15 9. Bent v. Cobb, 9 Gray (Mass.), So. 44. 397, 69 Am. Dec. 295. 1. Montgomery v. Edwards, 4fi 123 §§ 100, 101 FREEDOM OF CONTRACT. Cll. 4 The statute of frauds affects the remedy only, and, as gener- ally held, not the validity of the contract.^ Hence, when the contract has been executed, and if it would have been good be- fore the statute of frauds, it cannot be said to be void.^ And when one has done a thing which he need not have done because his promise was oral, he may have his action against the other for the consideration orally promised, the statute not for- bidding.^ §101. Void and voidable. — In Alabama, California, Michi- gan, Nevada, 'New York, Oregon, Virginia, and Wisconsin, the statute does not follow the English, but declares that the con- tract shall be void unless in writing. This would seem to make the contract absolutely void unless in writing ; however it is not clear what these statutes do mean. It is said that such statute makes the contract voidable but not void ; that no action shall be maintained to charge one upon it, but for all other purposes it is good.^ So an oral contract for the sale of land is not utterly void.^ And it is doubtful whether such a statute was intended to embrace land in other States, over which the legislature had no jurisdiction.' Provided the promisee, waiving his right to the land itself, should treat the contract as personal, bringing Vt. 151, 14 Am. Rep. 618; Fowler Adams v. Honness, 62 Barb. (N. V. Burget, 16 Ind. 341. Y.) 326; Tinkler v. Swaynie, 71 2. Townsend v. Hargraves, 118 Ind. 562. Mass. 325; Leroux v. Brown, 12 C. 5. Leroux v. Brown, 12 C. B. B. 801; Carrington v. Roots, 2 801; Maddison v. Alderson, 8 App. Mees. & Wei. 248; Reade v. Lamb, Cas. 467, 488; Cooper v. Hornsly, 6 Exch. 130; Browning v. Parker, 71 Ala. 62; Crane v. Cough, 4 Md. 17 R. I. 183, 20 A'. 835; Webster v. 316. Le Compte, 74 Md. 289, 22 A. 234; 6. Coughlin v. Knowles, 7 Met. Newton v. Bronson, 13 N. Y. 587, (Mass.) 57, 39 Am. Dec. 759; 67 Am. Dec. 89 and note. Wetherbee v. Potter, 99 Mass. 361 ; 3. Bolton V. Tomlin, 5 Ad. & El. Sims. v. Hutchins, 8 Sm. & Mar. 856; Slatter v. Meek, 35 Ala. 528; (Miss.) 331; Galway v. Shields, 66 fenaw V. Woodcock, 7 Barn. & Cr. Mo. 313, 27 Am. Rep. 351. 73; Newman v. Nellis, 97 N. Y. 7. See Gibson v. Ins. Co., 77 285. Fed. Rep. 561. 4. Sims V. McEwan, 27 Ala. 184; 124 Cll. 4 STATUTE OF FEAUDS, §§ 101, 102 an action at law for damages for its breach, the lex celebrationis should govern, whether the action is begun in the courts of the situs, of the locus celebrationis, or of a third State.^ When the promisee has waived all claim to the land, and treats the con- tract as personal, the same should apply as in other personal contracts.® § 102. Performance in part — At law^. — In a court of law part performance of a verbal contract does not take a case out of the statute of frauds.^ At law part performance of a parol agreement for the sale of land will not exempt it from the opera- tion of the statute; and the payment of the purchase-money is not such a performance as will induce a decree for specific performance.^ And if the contract is void at law, the vendee is entitled to recover back anything he may have paid to the vendor on account of such purchase.^ But if the contract is not void, he will not be allowed to recover back what he has paid, where the vendor is willing to perform his part.^ In lowa^ and Ala- bama,® the statute provides that certain acts of part performance shall take the contract out of the statute of frauds. Marriage, coupled with possession, is sufficient to compel per- 8. Minor's Conf. L. p. 417, and Brown v. Pollard, "89 Va. 696, 17 cases cited; Story's Conf. L. 372d; S. E. 6. Whar. Conf. L. 276a. 2. Anthony v. Leftwich, 3 Rand. 9. See Poison v. Stewart, 167 (Va.) 255; Dunsmore v. Lyle, 87 Mass. 211, 45 N. E. 737, 36 L. R. A. Va. 393, 12 S. E. 610. 771, 57 Am. St. Rep. 452; Miller v. 3. Brown v. Pollard, 89 Va. 696, Wilson, 146 111. 523, 34 N. E. 1111. 17 S. E. 6. 37 Am. St. Rep. 186; Wolf V. 4. Galway v. Shields, 66 Mo. 313, Burke, 18 Colo. 264, 32 P. 427, 19 27 Am. Rep. 351; Hawley v. Moody, L. R. A. 792 and note. 24 Vt. 605; Coughlm v. Knowles, 7 1. Chicago Attach. Co. v. Singer Met. (Mass.) 57, 39 Am. Dec. 759; Machine Co., 142 111. 171, 31 N. E. Sims v. Hutchins, 8 Sm. & M. 438, 15 L. R. A. 754 and note; (Miss.) 331. Fleming v. Carter, 70 111. 2S6; Du- 5. Price v. Lien, 84 Iowa, 590, 51 rand v. Curtis, S7 N. Y. 7 ; Pierce N. W. 52. V. Estate, 28 Vt. 34; Henry v. 6. Louisville, etc., R. R. Co. v. Wells, 48 Ark. 485, 3 S. W. 637; Philyaw, 94 Ala. 463, 10 So. 83. 125 §§ 102, 103 FREEDOM OF CONTRACT. Ch. 4 formance.' So where a father verbally promises, in contempla- tion of his daughter's marriage, to give her a house, and she and her husband took possession, the possession and marriage took the promise out of the statute f but marriage alone is not suffi- cient.^ Where the statute does not declare otherwise, payment of the consideration alone does not take a parol gift out of the opera- tion of the statute of frauds.^" Delivery of possession, coupled with the making of valuable improvements or the payment of the purchase price, is sufficient to compel specific performance." And in general delivery of pos- session alone having reference to the contract is all that is re- quired;^ because, if the contract was avoided, the vendee in possession would be liable as a trespasser.^' § 103. Part performance — In equity. — The doctrine that part performance of a contract will make valid a contract in- valid by the statute of frauds, is exclusively a creature of equity and applies only to contracts relating to lands. ^ So where one of the parties to a contract void by the statute of frauds, avails himself of its invalidity, and unconscientiously appropriates what he has acquired indirect, equity will compel restitution, and it constitutes no objection to the claim that the opposite party may secure the same practical benefit, through the pro- cess of restitution, which would have resulted from the observ- 7. Gregory v. Mighell, 18 Ves. 11. Hotiman v. Felt, 39 Cal. 109; 328. Glass v. Hulbert, l02 Mass. 24, 3 8. Ungley v. Ungley, L. R. Ch. Am. Rep. 418; Moss v. Culver, 64 Div. 76. Pa. St. 414, 3 Am. Rep. 601. 9. Brown v. Conger, 5 Hun (IST. 12. Danforth v. Lancy, 28 Ala. Y.), 625. 274; Tilton v. Tilton, 9 N. H. 386. 10. Gorham v. Dodga, 122 111. 13. Eaton v. Whitaker, 18 Conn. 528, 14 N. E. 44; Lanz v. McLaugh- 222; 44 Am. Dec. 486. lin, 14 Minn. 72; Eaton v. Whita- 1. McElroy v. Ludlum, 32 N. J. ker, 18 Conn. 222; Glass v. Hulbert, Eq. 828; Brittain v. Rossiter, 11 Q. 102 Mass. 24. In Iowa the accept- B. D. 123. ance of the purchase price makes the contract binding. 126 Ch. 4 STATUTE OF FEAUDS. §§ 103, 104 ance of the void agreement. The part performance mnst be such that the party will be put into a situation which is a fraud upon him unless the agreement is fully performed.^ And the mere fact that the purchase price of real estate was paid by one person and the conveyance thereof made to another, does not raise any use or trust in favor of the former, but the title vests in the latter. But this does not prevent the operation of any agreement that was good in law or equity in part performance of which the deed was given, and the power of a court of equity to compel the specific performance of a verbal agreement in cases of part performance is not thereby abridged.^ This principle rests upon equitable estoppel, that the vendor has so dealt with the purchaser in receiving the value or a part of the purchase-money or in contracting for its payment, and in putting the vendor in actual possession of the land in part exe- cution of the contract of sale that it would be a fraud on the vendor's part to repudiate the contract and stop short of the complete execution/ When a party obtains title to real estate upon a verbal agree- ment to transfer in payment of the same to the grantor other property, real or personal, the statute does not apply and equity will enforce the agreement, since it would be a fraud on the part of the grantee to refuse. Such an agreement is not executory, but completely executed on the part of the grantor, and the purchaser alone is in default.^ § 104. What is part preformance. — Acts of part perform- ance to take a parol contract out of the statute of frauds, must 2. Kincaid v. Kineaid, 85 Hun 1 Sell. & Lf. 433; Gallagher v. Gal- (N. Y.), 141, 32 K. Y. S. 476; lagher, 31 W. Va. 9, 5 S. E. 297; Wheeler v. Reynolds, 66 N. Y. 231; Wright v. Pucket, 22 Gratt. (Va.) Farwell v. Johnston, 34 Mich. 342. 370; Harrison v. Harrison, 36 W. 3. Kineaid v. Kincaid, 85 Hun Va. 556, lo S. E. 87; Trammell v. (N. Y.), 141. 32 X. Y. S. 476; Craddock, 100 Ala. 266, 13 So. 911. Smith V. Smith, 125 N. Y. 224, 26 5. Sprague v. Coehran, 144 N. Y. X. E. 259 ; Murkley V. Whitney, 140 104, 38 N. E. 1000; Roberge v. N. Y. 546, 35 N. E. 930. Winne, 144 N. Y. 709, 39 N. E. 631; 4. Miller v. Lorentz. 39 W. Va. Xewman v. Xellis, 97 N. Y. 285. 160. 19 S. E. 391; Clinan v. Cook, 127 § 104 FEEEDOM OF CONTRACT. Cll. 4 be of such unequivocal nature as of themselves to be evidence of the existence of an agreement; thus, vi^here, under parol agree- ment to sell land, the purchaser is put in possession, and makes valuable improvements.^ Payment or part payment of the pur- chase-money is not sufficient to take the contract out of the statute.^ An act of part performance, to take a case out of the statute of frauds, must be sufficient of itself, without any other in- formation or evidence, to satisfy the court, from the circum- stances it has created and the relation it has formed, that they are only consistent with the assumption of the existence of a contract the terms of which equity requires, if possible, to be ascertained and enforced. This is so because the defendant in a suit founded on such part performance is really " charged " upon the equities re- sulting from the acts done in execution of the contract, and not, within the meaning of the statute, upon the contract itself. Hence, until such acts are shovvm as of themselves imply the existence of some contract, parol evidence to show the terms of the contract relied on is inadmissible.^ The act of performance as could be done with no other view or design than to perform the agreement.* The principle of the cases is that the act must be of such nature that, if stated, it would of itself infer the existence of some agreement and then parol evidence is admitted to show what the agreement is.^ 1. Hale V. Hale, 90 Va. 728, 19 Kinyon v. Young, 44 Mich. 339, 6 S. E. 739; Maddison v. Alderson, 8 N. 835; Nibert v. Bazhursl, 47 N. App. Cas. 479, 7 Q. B. D. 174. J. Eq. 201, 20 A. 252; Forrester v. 2. Cooley V. Lobdell, 82 Hun (N. Flores, 64 Cal. 2i, 28 P. 107; Y.), 98, 31 N. Y. S. 202; Brown v. Townsend v. Vanderwerker, 20 D. Pollard, 89 Va. 696, 17 S. E. 6; C. 197. Glass V. Hulbert, 102 Mass. 28, 3 3. Dale v. Hamilton, 5 Hare, Am. Rep. 418; Boulder Valley, etc., 381; Maddison v. Alderson, 8 App. Co. V. FarnHam, 12 Mont. 1, 29 P. Cas. 467; Hale v. Hale, 90 Va. 728, 277; Maxfield v. West, 6 Utah, 327, 19 S. E. 739. 23 P. 754; Gorham v. Dodge, 122 4. Gunter v. Halsey, Amb. 586. 111. 528, 14 N. E. 44; Goddard v. 5. Frome v. Dawson, 14 Ves. Danaha, 42 Kan. 754, 22 P. 708 ; 387 ; Phillips v. Thompson, 1 Johns. Horn V. Luddington, 32 Wis. 73; Ch. (N. Y.) 131. 128 Ch. 4 STATUTE OF FEAUDS. § 105 § 105. Possession of land and improvements. — Possession must be taken under the verbal contract. It is not enough that the possession was taken. It must be taken under the verbal contract pursuant to the provisions, in order to take the contract out of the statute/ when the consideration has been paid,^ or valuable improvements have been made on the land in the pur- chaser's possession.' And a party having possession, who buys and then makes valuable improvements, will be protected, be- cause this is such a part performance as to take the contract out of the statute.* Mere possession alone is not sufficient;^ it must be under the contract, payment of consideration and generally improvements must be made.® 1. Boozer v. Trague, 27 S. Car. 348, 3 S. E. 551 ; Tunison v. Brad- ford, 49 N. J. Eq. 10, 22 A. 1073; Foster v. Maginnis, 89 Cal. 264, 26 P. 828 ; Clark v. Clark, 122 111. 388, 13 N. E. 553; Ridgway v. Ridgway, 69 Md. 242, 14 A. 659; Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289 and note; Waymire v. Way- mire, 141 Ind. 164, 40 N. E. 523. 2. Martin v. Patterson, 27 S. Car. 621, 2 S. E. 859; Carney v. Carney, 95 Mo. 353, 8 8. W. 729; Bechtel v. Cone, 52 Md. 698 ; Gould V. Banking Co., 136 111. 60, 26 N. E. 497; Jameson v. Dimock, 95 Pa. St. 52; Lipp V. Hunt, 25 Neb. 91, 41 N. W. 143; Compare Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052. 3. Smith V. Smith, 125 N. Y. 224, 26 N. E. 259 ; Freeman v. Free- man, 43 N. Y. 34, 3 Am. Rep. 657; Hale V. Hale, 90 Va. 728, 19 S. E. 739 ; Mudgett v. Clay, 5 Wash. 103, 31 P. 424; Brown v. Sutton, 129 U. S. 238, 9 S. Ct. 273; Potter v. Jacobs, 111 Mass. 32; Cutsinger v. Ballard, 115 Ind. 93, 17 N. E. 206; Evans v. Miller, 38 Minn. 245, 36 N. W. 640; Barnett v. Forney, 82 Va. 269; Hunter v. Mills, 29 S. Car. 72, 6 S. E. 907; ivloulton v. Harris, 94 Cal. 420, 29 P. 706; Hunkins v. Hunkins, 65 N. H. 95, 18 A. 665; McWhinne v. Martin, 77 Wis. 182, 46 N. W. 18; Morri- son V. Herrick, 130 111. 631, 22 N. E. 537. 4. Peck V. Stanfield, 12 Wash. 101, 40 Pac. 635. 5. Dongan v. Blocker, 24 Pa. St. 28; Glass v. Hulbert, 102 Mass. 32, 3 Am. Rep. 418; Miller v. Ball, 64 N. Y. 292; Hibbert v. Aylatt, 52 Tex. 530; Compare Kennemore V. Kennemore, 26 S. Car. 251, 1 S. E. 881. 6. Townsend v. Vanderwerker, 160 U. S. 171, 16 S. Ct. 258; Wells V. Stradling, 3 Ves. Jr. 378; Mundy V. Joliffe, 5 My. & Cr. 167; Mor- gan V. Battle, 95 Ga. 663, 22 S. E, 689; Delevan v. Wright, 110 Mich. 143, 67 N. W. nO; Mournin v. Trainer, 63 Minn. 230, 65 N. W. 444; Stuht v. Sweesy, 48 Neb. 767, 67 N. W. 748. 129 §§ 106, 107 FREEDOM OF CONTRACT. Cll. 4 § io6. Parol gift of real estate. — A parol gift of real estate and a parol promise to convey the same is valid and enforcible in equity, where the donee has entered into possession of the property and made permanent improvements thereon, on the faith of the donor's promise/ and this, although when specific performance by the donee is claimed, the rental value of the property for the time it has been occupied by the latter would be more than the amount expended by him.^ Because the courts of equity, in decreeing specific performance of verbal agreements where there has been part performance, do so for the purpose of preventing a party from escaping engagements he has en- tered into through the statute of frauds, after the other party to the contract has expended his money, or otherwise acted in exe- cution of the agreement.^ Expenditures made upon permanent improvements upon land with the knowledge of the owner, in- duced by his promise, made to the party making the expendi- ture, to give the land to such party, constitute in equity a con- sideration for the promise.* Whether delivery of possession of the land is sufficient to take a parol gift of land out of the statute of frauds, is a question of some difficulty. Some of the courts hold that a valuable consideration must also pass.^ If a parol gift is clearly proven and possession is given, it should be specifically enforced.® § 107. Specific performance of agreement. — Many courts hold that where an agreement has been executed, or is partly performed by the plaintiff, and the acts done place him in a position which is a fraud upon him unless the agreement is 1. Lobdell V. LoDdell, 46 N. Y. Watts (Pa.), 510; Schuey v. 327, 7 Am., Rep. 341; Crosbie v. Schaefer, 130 Pa. St. 23, 18 A. 544, McDonald, 13 Ves. 148; Freeman 549; Seary v. Drake, 62 N. H. 393. V. Freeman, 43 N. Y. 34, 3 Am. 4. Freeman v. Freeman, 43 N. Y. Rep. 657; Schroeder v. Wauzor, 36 34, 3 Am. Eep. 657. Hun (N. Y.), 425; Ogsbury v. Ogs- 5. Stewart v. Stewart, 3 Watts bury, 115 N. Y. 290, 22 N. E. 219. (Pa.), 253. 2. Young V. Overbaugh, 145 N. 6. Freeman v. Freeman, 43 N. Y. Y. 158, 39 N. E. 712. 34, 3 Am. Rep. Cr57; Manley v. 3. Young V. Glendenning, 6 Hewlett, 55 Cal. 9'^:. 130 Ch. 4 STATUTE OF FRAUDS. §§ 107, 108 executed, equity will not permit the defendant to protect him- self from executing his part of the agreement by pleading that the contract was not in writing.^ So in the sale of land when all the requisites have been complied with, a deed will be de- creed to the vendee. Thus, when the contract fully described the boundaries, the precise amount of the consideration, pos- session actually delivered by the vendor and taken by the vendee, a deed will be decreed to be made by vendor to vendee.^ But it has been held by some courts that a written contract cannot be decreed, as it is not such a fraud as will take the contract out of the statute.^ But generally specific performance of a contract will be decreed when the contract is valid, unobjec- tionable in character, and capable of being enforced.^ § io8. Personal services and conveyance of personal prop- erty. — The equity of part performance to entitle plaintiff to specific execution of a contract within the statute, does not ex- tend to contracts within the fifth clause of the fourth section of the statute, when such contracts, not being evidence in writing, relate to personal service, or the subject-matter of them is the sale and delivery of mere personal chattels.^ So for labor and service performed under a contract which is void under the statute, a recovery may be had by declaring a quantum meruit.'" And where a person pays money, renders service or conveys property under an agreement within the statute, which the other 1. Dean v. Anderson, C4 N. J. 504, 22 N. E. 90, 23 N. E. 86; Eq. 496; Walker v. Barney, 6 Madd. Feeney v. Howard, 79 Cal. 525, 21 247; Herman v. Hodges, L. R. 16 P. 984, 12 Am. St. Rep. 162. Eq. 18; Humble's Case, 11 Irish Ch. 4. Hoover v. Buck (Va.), 21 S. 132; McClintock v. Laing, 22 Mich. E. 474; Grubb v. Sliarkey, 90 Va. 212; Lav/rence v. Lawrence, 42 N. 831, 20 S. E. 784. H. 109; Equitable Gas Light Co. v. 5. Equitable Gas Light Co. v. Manuf. Co., 63 Md. 285; Graft v. Manuf. Co., 63 5ld. 285; Brittain Loucks, 138 Pa. St. 453, 21 A. 203; v. Rossiter, 12 Q. B. D. 123; Mad- McDonald V. Youngblutli, 46 Fed. dison v. Alderson, 8 App. Cas. 474, Rep. 836. 490. 2. Graft v. Loucks, 138 Pa. St. 6. Patten v. Hicks, 43 CaL 509; 453, 21 A. 203. Whipple v. Parker, 29 Mich. 369. 3. Jackson v. Myers, 120 Ind. 131 §§ 108-110 FREEDOM OF CONTEACT. Ch. 4 party refuses to perforin, an action will lie by such person against the party refusing, to recover the money paid or the value of the services rendered or the property conveyed.'' And so a parol agreement to devise and bequeath real and personal property as compensation for a nephew's services is within the statute of frauds as to the real estate, and, being in- admissible, fails wholly; but it may be shown in evidence to rebut the presumption that the services were rendered gratuit- ously, and the nephew may recover quantum meruit.^ § log. Recovery of money paid. — If a contract is invalid because it is oral, and the vendor has received a purchase-money, and then refuses to comply with the contract, he may be com- pelled to repay the purchase-price.'^ But the purchaser must be willing to consummate the bargain, or he cannot recover.^ It is when the vendor repudiates the contract invalid under the statute, that the vendee may recover back the amount he has paid.^ § no. Services rendered or benefits received. — When the contract is invalid under the statute and one party has accepted its benefit or received the consideration, an action 7. Sherburne v. Fuller, 5 Mass. 660, 59 N. W. 129, 41 Am. St. Rep. 133, 138; Gillet v. Maynard, 5 74. Johns. (N. Y.) 8S, i Am. Dec. 329; 1. Herrick v. Newell, 49 Minn. King V. Brown, 2 Hill (N. Y.), 149, 51 N. W. 819; Taylor v. Read, 485; Day v. Railroad Co., 51 N. Y. 19 Minn. 372; Schroeder v. Loeber, 683; Richards v. Allen, 17 Me. 296; 75 Md. 195, 23 A. 579, 24 A. 226; O'Grady v. O'Grady, 162 Mass. 290, Welch v. Darling, 59 Vt. 136, 7 A. 38 N. E. 196; Dix v. Marcy, 116 547. Mass. 416. 2. Brockhausen v. Bowes, 50 111. 8. Ellis V. Gary, 74 Wis. 177, 42 App. 98; Dulin v. Price, 124 111. N. W. 252, 17 Am. St. Rep. 120; 76, 16 N. E. 242. Freeman v. Foss, 145 Mass. 361, 14 3. Wilkie v. Womble, 90 N. Car. N. E. 141, 1 Am. SI. Rep. 467; 254; Durham, etc., Improvement Wallace v. Long, 105 Ind. 522, 5 N. Co. v. Guthrie, 116 N. Car. 381, 21 E. 666, 55 Am. Rep. 222 ; Schwab S. E. 952 ; Bacon v. McChrystal, 10 V. Pierro, 43 Minn. 520, 523, 46 N. Utah, 290, 37 P. 563. ' W. 711; Estate of Kessler, 87 Wis. 13-2 Ch. 4: STATUTE OF FRAUDS. §§ 110, 111 may be maintained against him for the benefit thus con- ferred, and the money, property, or value thus accepted and appropriated by him ; not, however, upon the contract, but upon the appropriate common counts in assumpsit, and upon the duty, promise, or obligation springing from the property, money, or benefit thus conferred by the plaintiff, and received and ap- propriated by the defendant.^ The statute includes every agreement by which one promises to sell an existing interest in land upon a consideration either good or valuable. Hence, a contract to convey land in considera- tion of labor or service to be rendered, is within the statute.' But when the contract is repudiated by the vendor a quantum meruit will lie for the value of the services.^ § III. Use and occupation. — Though a contract for the use of property is invalid by the statute of frauds, its covenants are still valid so long as the use continues.* The fact that a party has been let into possession of the premises under a verbal con- tract and occupies them for a time and pays rent pursuant to a verbal contract, does not take the case out of the statute, and there can be, therefore, no recovery under the contract, and the only remedy of the lessor is under quantum meruit for use and occupation.^ 1. Whipple V. Parker, 29 Mich. 40 Kans. 367, 19 P. 862; Koch v. 374; Pierce v. Paine, 28 Vt. 34; Williams, 82 Wis. 186, 52 N. W. Emery v. Smith, 46 N. H. 151; 257; Thomas v. Hatch, 53 Wis. Cadman v. Markle, 76 Mich. 448; 296, 10 N. 393; Miller v. Eldredge, 43 N. W. 315, 5 L. R. A. 707 and 126 Ind. 461, 27 N. E. 132. note. 4. Hermann v. Curiel (N. Y.), 2. Dowling V. McKenny, 124 3 App. Div. 511, 38 N. Y. S. 343; Mass. 478 ; Baxter v. Kitch, 37 Ind. Steele v. Asso., 57 Minn. 18, 58 N. 554; Burlingame v. Burlingame, 7 W. 685; Zachry v. Molan, 66 Fed. Conn. 92; Helm v. Logan, 4 Bibb Rep. 467. (Ky.), 78; Jock v. McKee, 9 Pa. 5. Marr v. Ray, 151 111. 340, 37 St. 235; Sprague v. Haines, 08 Tex. N. E. 1029, 26 L. R. A. 399 and 215, 4 S. W. 371. note; Chicago Attachment Co. v. 3. King V. Brown, 2 Hill (N. Sewing Machine Co., 142 HI. 171, Y.), 485; Stevens v. Lee, 70 Tex. 31 N. E. 438; Smallwood v. Shep- 279, 8 S. W. 40; Wonsettler v. Lee, pards (1895), 2 Q. B. 627. 133 §§ 111, 112 FREEDOM OF CONTRACT. Ch. 4r The English rule is that a parol lease in contravention of the statute, under which possession is taken creates a tenancy at will, and payment of rent thereunder converts it into a tenancy from month to month or year to year as the period may be indicated by the payment.*' In many of the States the English rule prevails while in others the only tenancy created under such circumstances is one from year to year, the contract controlling the rights and obli- gations of the parties in all particulars except as to duration.^ § 112. Defense. — A verbal contract within the condemna- tion of the statute, as for the sale of land, cannot be enforced in any way either directly or indirectly, and cannot be made a ground of demand or a ground of defense.^ The party may plead the statute in bar of a collateral action, based on the con- tract, as well as of a direct action on the contract itself.^ Thus, if a party in express terms makes a verbal contract to serve for five years, it cannot be enforced against him by the other party. And if after serving a portion of the time he should refuse to carry out his contract, and bring suit to recover the value of the services rendered, the verbal contract will not avail the employer as a defense. It cannot be set up as a contract at all ; the breach of it will impose no liability which the law can enforce ; the obligation to perform cannot be maintained in an action at law.' 6. Clayton v. Blakey, 8 Term R. 111. 124; Creighton v. Sanders, 89 3. 111. 543; Brownell v. Welch, 91 7. Koplitz V. Gustavus, 48 Wis. 111. 523. 48, 3 N. 754; Morehead v. Wot- 1. McGinnis v. Fernandes, 126 lyus, 5 B. Mon. (Ky.) 228; Dunn v. 111. 228, 19 N. E. 44; Wheeler v. Rothermel, 112 Pa. St. 272, 3 A. Frankenthal, 78 111. 124; Leavitt v. 800; Laughran v. Smith, 75 N. Y. Stern, 159 111. 526, 42 N. E. 869. 205; Morrill v. Mackman, 24 Mich. 2. Banks v. Crossland, L. R. 10 279, 9 Am. Rep. 124; Evans v. Q. B. 97, 100; Carrington v. Roots, Winona Lumber Co., 30 Mmn. 515, 2 Mees. & Wei. 248; Reade v. Lamb, 16 N. 404; Cody v. Quarterman, 12 6 Exch. 130; Comes v. Lawaon, 16 Ga. 386 ; Drake v. Newton. 23 N. J, Conn. 246. L. Ill; Warner v. Hale, 65 111. 3. Baker v. Lauterbach, 68 Md. 395; Wheeier v. FranKentnal, 78 64, 11 A. 703. 134 Ch. 4 STATUTE OF FRAUDS. §§ 112-114 The contract cannot be available as a contract at all, unless an action can be brought upon it. What is done under the contract may admit of apology or excuse, as where a contract by parol, the party is put into possession, that possession may be set up as an excuse for trespass alleged to have been committed by him. The agreement may be available in answer to a trespass by setting up a license ; not setting up the contract itself as a con- tract, but only showing matter of excuse for the trespass.* § 113. Who may take advantage of the statute of frauds. — The statute of frauds is a defense personal to the party to the contract.^ So the benefit of the statute of frauds cannot be claimed by one not a party to the contract who is not sought to be charged.® Many cases illustrate the doctrine that a third person cannot make the statute available to overthrow a trans- action between other persons.^ It concerns the remedy alone, and the modern law is well settled that in the absence of a statutory provision to the contrary, the effect of the statute of frauds, is not to render the agreement void, but simply to pre- vent its enforcement by parties and to refeuse damages for its breach.^ § 114. Waiver of statute in action for breach of contract. — It is generally held that contracts within the statute of frauds are not void but voidable ; hence, a party to be charged may waive the statute and the contract thereby becomes binding 4. Carrington v. Roots, 2 Mees. 93 Am. Dec. 755; Dock Co. v. & Wei. 248. Kinzie, 49 111. 289; Wright v. 5. Carpenter v. Davis, 72 111. 14; Jones, 105 Ind. 17, 4 N. E. 281; King V. liushnell, 121 111. 656, 13 Savage v. Lee, 101 Ind. 514; Ames N. E. 245; Cahill v. Bigelow, 18 v. Jackson, 115 Mass. 508. Pick. (Mass.) 369. 7. Jackson v. Stanfield, 137 Ind. 6. St. Louis, etc. Railroad Co. v. 592, 36 N. E. 345, 37 N. E. 14, 23 Clark, 121 Mo. 169, 25 S. W. 192, L. R. A. 588. 906, 26 L. R. A. 751 and note; 8. Jackson v. Stanfield, 137 Ind. Cooper V. Hornsby, 71 Ala. 62; 592, 36 N. E. 345, 37 N. E. 14, 23 Houser v. Lamont, 55 Pa. St. 311, L. R. A. 588. 135 §§ 111, 115 FREEDOM OF CONTRACT. Ch. 4 upon him.^ So when a contract within the statute of frauds is proved by parol evidence without objection or exception, the right to invoke the statute is waived, and cannot afterwards be insisted upon.^ And the statute of frauds as a defense must be pleaded or it will be considered as waived though shown by the evidence.^ § 115. Conflict of laws. — Where a contract is entered into in one State to be performed in another, there are two loci con- tractus, the lex loci celebrationis and lex loci solutionis, and the law of the former governs the interpretation, nature, and valid- ity of the contract, that of the latter its performance. A con- tract may be valid by the law of both places, and yet fail practi- cally, if the lex fori does not permit its enforcement.* This is a rule of personal contracts, though it is at variance with many dicta and decisions, but is well supported on au- thority.^ And some cases hold that a contract made in good faith in one State to be performed in another, will be upheld if if conforms to the law of either State. Because, in making such 1. Aultman v. Booth, 95 Mo. 383, Cal. 280, 22 A. 856; Earnhardt v. 8 S. W. 742; McGowen v. West, 7 Walls, 29 Mo. App. 206; Semmes v. Mo. 570, 38 Am. Dec. 468; Sneed Worthington, 38 Md. 298; Popp v. •v. Bradley, 4 Sneed (Tenn.), 304, Swanke, 68 Wis. 364, 31 N. W. 916; 70 Am. Dec. 250; Brakefield v. Hogan v. Easterday, 58 111. App. Anderson, 87 Tenn. 206, 10 S. W. 45 ; Hurt v. Ford, 142 Mo. "283, 44 360; Montgomery v. Edwards, 46 S. W. Rep. 228. Vt. 151, 14 Am. Rep. 618. 4. Leroux v. Brown, 12 C. B. 2. Nunez v. Morgan, 77 Cal. 427, 801; Emery v. Burbank, 163 Masa. 19 P. 753; Donald v. Homestead 3lu, 39 N. E. 1026, 47 Am. St. Rep. Asso., 51 Cal. 210; McClure v. 456. Otrich, 118 111. 320, 8 N. E. 784; 5. Cooper v. Waldegrave, 2 Beav. Wells V. Monihan, 129 N. Y. 161, 282; Vidal v. Thompson, 11 Mart. 29 N. E. 232. (La.) 23; Dacosta v. Davis, 24 N. 3. Espalla V. Wilson, 86 Ala. 487, J. L. 319; Aymar v. Sheldon, 12 5 So. 867; Jonas v. Fields, 83 Ala. Wend. (N. Y.) 439, 27 Am. Dec. 445, 3 So. 895; Barrett v. McAl- 137 and note; Chapman v. Robert- lister, 33 W. Va. 738, 11 S. E. 230; son, 6 Paige (N. Y.), 627, 31 Am. Compare Fontaine v. Bush, 40 Dec. 264 and note; Bain v. Railway, Minn. 141, 41 N. W. 465, 12 Am. 3 H. L. 1 ; Story on Conil. of L. St. Rep. 722; Harris v. Frank, 81 234. 136 Ch. 4 STATUTE OF FEAUDS. § 115 contracts the pnrties may have in view either the law of the State where the contract is made or the law of the State where it is to be performed ; hence, if made in good faith without any desig-n to evade the law, it ought to be allowed and enforced ac- cording to its presumable intent, ut res magis valeat quam pereat, that the thing may rather have effect than be destroyed.^ If the contract is void because not in writing, the question is determined by the lex loci celebrationis.'' If the question is not one of validity but whether an action can be brought on it, the lex fori governs.^ The statute of frauds is somewhat different in the several States. In some it is provided that " no action shall be brought" on a contract unless it is in writing, and others that such con- tract shall be " void " unless it is in writing. In such case a contract made under the first would not be void, and if suit was brought on it in the second case, it would be enforced, because the oral contract is not void by the lex celebrationis and is not against the statute of the lex fori, or in other words the statute would not apply in either case.^ If the lex celebrationis pro- vides that no action shall be brought unless in writing, while the lex fori does not require it to be in writing, then the lex fori does not raise the question of the impairment of the obligation of the contract. The matter is one pertaining to the remedy to be controlled by the lex fori, which will enforce the obliga- tion to a greater extent than would the lex celebrationis}'^ 6. Bolton V. street, 3 Cold. /!)2 and note; Compare Baxter (Tenn.) 31; Fisher v. Otis, 3 Bank v. Talbot, 154 Mass. 213, 28 Chand. (Wis.) 83; Depau v. Hum- N. E. 163, 13 L. R. A. 97 and phreys, 8 Mart. (La.) N. S. 1; note. Cromwell v. County, 96 U. S. 51. 9. Wolf v. Burke, IS Colo. 264, 7. Miller v. Wilson, 146 111. 523, 32 P. 427, 19 L. R. A. 792 and note. 34 N. E. 1111, 37 Am. St. Rep. 186; 10. Downer v. Chesbrough, 36 Wilson V. Mills Co., 150 !N. Y. 314, Conn. 39, 4 Am. Rep. 29; Wolf v. 44 N. E. 959, 55 Am. St. Rep. 680; Burke, 18 Colo. 264, 32 P. 427, 19 Sullivan v. Sullivan, 70 Mich. 583, L. R. A. 792 and note; Compare 38 N. W. 472. Cochrane v. Ward, 5 Ind. App. 89, 8. Hall v. Cordell, 142 U. S. 116, 29 N. E. 795, 31 N. E. 581. 51 Am. 12 S. Ct. 154; Wolf v. Burke, 18 St. Rep. 229. Colo. 264, 32 P. 427, 19 L. R. A. 137 § 116 FREEDOM OF CONTRACT. Ch. 4: § ii6. Conflict of laws — Statute of frauds. — It has been field that a contract, valid by the laws of the place where it is made, although not in writing, will not be enforced in the courts of a country where the statute of frauds prevails, unless it is put in writing.^ But where the law of the forum and that of the place of the execution of the contract coincide, it will be en- forced, although required to be in writing by the law of the place of performance,^ because the form of the contract is regu- lated by the law of the place of its celebration, and the evi- dence of it by that of the forum.^ As to the requisites of a valid contract, the mode of authenti- cation, the forms and ceremonies required and as to every thing which is necessary to perfect or consummate the contract, the lex loci contractus governs, though with respect to conveyances, or other contracts relating to real estate, the statutory regula- tions of the place where such estate is situate, must be observed.* Accordingly a parol agreement made in Illinois to lease real estate in that State for the term of a year, to begin at some definite time in the future, falls within the provisions of the Illinois statute of frauds, and a suit to enforce the same cannot be maintained in Indiana though the agreement is not repug- nant to any provision of the statute of frauds in the latter State.^ 1. Leroux v. Brown, 12 C. B. N. Y. 117, 28 Am. Rep. 116; Hall- 801; Compare Gibson v. Holland, garten v. Oldham, 135 Mass. 1, 46 L. R. 1 C. P. 1. Am. Rep. 433; Gross v. Jordan, 83 2. Scudder V. Bank, 91 U. S. 406. Me. 380, 22 A. 250; Butters v. 3. Pritchard v. Norton, 106 U. Glass, 31 U. C. Q. B. 379. S. 124, 1 S. Ct. 102. 5. Cochran v. Ward, 5 Ind. App. 4. Baltimore, etc., R. R. Co. v. 89, 29 N. P:. 795, 31 N. E. 581, 51 Gienn, 28 Md. 287, 92 Am. Dec. Am. St. Rep. 229. See, also, An- 688; Fox v. Matthews, 33 Miss. derson v. May, 10 Heisk. (Tenn.) 433; Wilcox, etc., Co. v. Green, 72 84. 138 Ch. 4 STATUTE OF FRAUDS. §§ 117-119 ARTICLE V. Promises by Executors and Administrators. Section 117. Statutory Provisions. 118. Application of this Clause. 119. Forbearance. 120. The Special Promise. 121. Original Consideration. § 117. Statutory provisions. — The fourth section of the statute of frauds declares that " no action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." So to make an executor or administrator personally liable for the debt of the decedent, his promise to pay it must be in writing. § 118. Application of this clause. — This clause of the statute does not apply to original undertakings by the executor or administrator.^ The statute only applies to promises to an- swer for debts or liabilities of the decedent ; where an executor or administrator has assets of the estate, a promise by him, to pay a debt due by the person he represents, is not within the statute.^ But the possession of assets is not, of itself, sufficient to charge him personally, as such promise, without a new con- sideration.^ § 119. Forbearance. — Although tlie mere possession of as- sets by an executor ot administrator will not be a good consider- 1. Taylor v. Mygatt, 26 Conn. 2. Stebbins v. Smith, 4 Pick. 184; Stebbins v. Smith, 4 Pick. (Mass.) 97 ; Pratt v. Humphrey, 22 (Mass.) 97; Williams v. Davis, 18 Conn. 317. Wis. 184; In re Hummel's Estate, 3. Pratt v. Humphrey, 22 Conn. 55 Minn. 315, 56 N. W. 1064. 317. 139 §§ 119, 120 FEEEDOM OF CONTRACT. Cb. 4 ation to charge him personally on such promise, a new considera- tion, such as forbearance to proceed against the estate he rep- resents, is sufficient for the purpose, although he has no assets ;^ and the same doctrine will apply as to forbearance in collecting legacies.^ Thus, the i^romise of an executor to pay five thousand dollars to one of the testator's heirs-at-law, who received nothing under the will, in consideration that he would forbear further opposition to the probate of the will, claimed to have been made as it was through undue influence, is not within the statute ; and such forbearance is a sufiicient consideration.^ § 120. The special promise. — The special promise referred to in this section of the statute is any actual promise made by an executor or administrator to answer damages out of his own estate. The promise must be to answer damages out of his own estate. This phraseology clearly implies an obligation, duty, or lia- bility on the part of the testator's estate for which the executor promises to pay damages out of his own estate. The statute was enacted to prevent executors or administrators from being fraudulently held for the debts or liabilities of the estates which they were called upon to administer. " To answer damages " is equivalent " to pay debts of the decedent."'* To be bound personally the executor's promise must show the intent as when he adds " executor," or in case of administrator, he adds " administrator " to his signature.^ 1. Rann v. Hughes, 7 Term R. 3. Bellows v. Sowles, 57 Vt. 164, 346n; Parish v. Wilson, Peake, 73; 52 Am. Rep. 118. Barber v. Fox, 2 Saund. 136; Phil- 4. Browne's Stat, of Frauds, p. pot V. Briant, 4 Bing. 717; Treford 150; 2 Redfield on Wills, p. 290 et V. Holmes, Hutton, 108; Palmer's seq.; Harrington v. Rich, 6 Vt. 666. Case, Hutton, 52; Porter v. Bille, 5. Treadwell v. Herndon, 41 1 Freem. 125; Jones v. Ashburn- Miss. 38; Lockwood v. Gilson, 12 ham, 4 East, 455. Ohio St. 526; Winter v. Hite, 3 2. Davis V. Reyncr, 2 Lev. 3; Iowa, 142; Stoudenmeier v. Wii- Bellows v. Sowles, 57 Vt. 164, 52 liamson, 29 Ala. 558. See, alco, Am. Rep. 118. Childs v. Monins, 2 Brod. & B. 460. 140 Ch. 4 STATUTE OF FKAUDS. § 121 § 121. Original consideration. — When the contract is found- ed upon a new and distinct consideration moving between the parties, the undertaking is original and independent, and not within the statute.^ It is a principle of law well sustained by authority, that when the principal or immediate object of the promisor is not to pay the debt of another, but to subserve some purpose of his own, the promise is original and independent, and not within the statute.^ The consideration must not only be sufficient to support the promise, but of such a nature as to take the promise out of the statute ; and that requisite is to be found in the fact that it operates to the advantage of the promisor, and places him under a pecuniary obligation to the promisee, entirely independent of the original debt.^ The statute by its terms operates on cases where there is a primary or original debt or obligation upon which is based a collateral promise of another person, to answer for such prim- ary or original debt or obligation. If there be in fact no sucb primary debt or obligation, or the same is extinguished and dis- charged or if the promise be not to answer for such primary debt or obligation, or if it be a primary or direct promise for a sufficient consideration, the statute does not apply or require a promise to be in writiug; because the statute contemplates the mere promise of one person to be responsible for another and cannot be interpreted as a cover and shield against the actual obligation of the defendant himself. If the third person makes an entire but substantial and independent contract with the creditor to perform, or some service, this may be enforced though not in writing, as it is not collateral.* The object of a collateral promise is to promote the interest of another ; the ob- 1. Templeton v. Bascom, 33 Vt. 641. See, also, Bellows v. Sowles, 132; Cross v. Richardson, 30 Vt. 57 Vt. 1(54, 52 Am. Rep. 118. 641; Forth v. Stanton,' 1 Saund. 4. Yeoman v. Mueller, 33 Mo. 201, n. 1. App. 343; Gale v. Harp, 64 Ark. 2. Emerson v. Slater, 22 How. 462, 43 S. W. 144; Crawford v. (U. S.) 28. See, also, Lampson v. Edison, 45 Ohio St. 239, 13 N. E. Hobart, 28 Vt. 697; Cross v. Rich- 80; Clifford v. Lubring, 69 111. 401; ardson, 30 Vt. 641. Hagadore v. Stronach, 81 Mich. 56, 3. Cross V. Richardson, 30 Vt. 45 N. W. 650; Fitzgerald v. Mor- 141 §§ 121, 122 FREEDOM OF CONTRACT. Ch. 4 ject of an original promise is to promote tlie interest of the party making the promise. The former is within the operation of the statute, the latter is not affected by it. When the promisor is himself to receive the benefit for which the promise is ex- changed, it is not usually material whether the original debtor remains liable or not.^ ARTICLE VI. Promise to Answer for Another^s Debt, Default^ or Miscarriage. Section 122. To Bind a Third Person for the Debt of Another. 123. Promise— To Whom Made. 124. When the Promise is Within the Statute. 125. Original Promise. 126. Evidence to Place Liability. 127. Promise to Pay Debt on His Own Behalf. 128. Benefit Accruing to Promisor. 129. Indemnity. 130. Release of Original Debtor — Novation. 131. Receipt of Property Out of Which to Pay the Debt. 132. Contractor Abandoning Work. § 122. To bind a third person for the debt of another. — To bind one person for the debt or default of another, there must not only be a promise or memorandum in writing, but such promise must be made on good consideration. The statute does not vary the rule of common law, as to what constitutes a valid and binding promise ; to every such promise, whether oral or written, there must be a good consideration. A promise rissey, 14 Neb. 198, 15 N. 233; 72 N. W. 213; Compare Ellison v. Young V. French, 35 Wis. Ill; Jackson, 12 Cal. 542; Noyes v. Lemmon v. Box, 20 Tex. 329; Humphreys, 11 Gratt. (Va.) 635; Bayles v. Wallace, 56 Hun, 428, 10 Ware v. Stephenson, 10 Leach, 155; N. Y. S. 191; Jolly v. Walker, 26 Puckett v. Bates, 4 Ala. 390. Ala. 690; Killbride v. Moss, 113 5. Calkins v. Chandler, 36 Mich. Cal. 432, 45 P. 812, 54 Am. St. Rep. .']24, 24 Am. Rep. 593. 361 : I^arn v. Upstil, 52 Neb. 271, 142 oil. 4 STATUTE OF FRAUDS. § 122 without consideration is had by the common law as nudum pactum; a promise on good consideration, without writini^, if for the debt of another, is had by the statute. To bind one, therefore, for the debt or default of another, both must concur ; first, a promise on good consideration, and secondly, evidence thereof in writing. It is not enough therefore that a sufficient legal consideration for a promi'se is proved, if the object of the promise is the payment of the debt of another for his account, and not with a view to any benefit to the promisor. This liability may be incurred as to a tort as well as to a con- tract.^ The question is said to be, is the promise one to answer for the debt, default, or miscarriage of another, for which that other continues liable ; if so it must be in writing to be valid.^ But where one orally contracts a debt of his own, the payment of which has the effect of payment of another's debt, the statute does apply.^ 1. There must be either a present or prospective liability of a third person for which the promisor agrees to answer in order to come within the statute. 2. The liability of the original debtor must continue. 3. The promise must be made to the creditor. 4. When the promisor does not become a surety or guarantor, and the promise is to subserve some purpose of his own, and his promise is merely incidental, it is not within the statute. 5. There must be three parties: (a) A creditor, (b) his debtor, and (c) a person who guarantees to the former the latter's debt. A party who becomes responsible for goods sold to another, and if the goods are supplied entirely on the credit of the promisor, so the third party is not liable at all, then the promise to pay is not within the statute ; but whenever the third party would become liable, the contract must be in writing.^ Where 1. Kirkham v. Morter, 2 Barn. 3. Hartley v. Varner, 88 111. & Aid. 613. 5G1; Cahill v. Eigelow, 18 Pick. 2. Bloom V. McGrath, 53 Miss. (Mass.) 369; Morrison v. Baker, 249; Richardson v. Robbins, 124 81 N. Car. 76; McLendon v. Frost, Mass. 105; Laidlou v. Hatch, 75 57 Ga. 448; Webb v. Lumber Co., 111. 11; Krutz v. Stewart, 54 Ind. 101 Ala. 630, 14 So. 407. 178. 4. Lance v. Peavce, 101 Ind. 143 §§ 122, 123 FREEDOM OF CONTRACT. Ch. 4: a third party would become liable for the property so sold to another, it is collateral, and the fact that the creditor relied chiefly upon the promise will make no difference. If the credit is given to a third party instead of the promisor, then it is within the statute, if such is the contract where one agrees to pay the debt of another.^ If the credit is given to the person to whom the goods are delivered, the promise of a third person to pay for them, though made at the same time, is a promise to pay the debt of another, and is within the statute.® And when the sale of goods is upon joint credit, the promise of two, though the property is purchased for and delivered to but one, the legal effect as between them and the vendor, is a sale to the two jointly. Such promise is an original one, and, therefore, not within the statute.' So the promise to answer for the torts of another comes with- in the statute of frauds, and, therefore, must be in writing. Thus, where a party has converted the goods of another, an oral promise to answer for such tort by a third person is void.^ So, where a hirer of a horse rides it to death, an oral promise by a third person to pay the damages to the owner is not binding, as it comes within the statute of frauds, under the words "mis- carriage" and " default." ^ § 123. Promise to whom made. — To bring a promise within the statute it must be made to the person entitled to enforce the 595; Walker v. Hill, 119 Mass. 6. Hetfield v. Down, 27 N. J. L. 249 ; Sutherland v. Carter, 52 Mich. 440. 151, 471, 17 N. 780, 18 N. 223; 7. Stone v. Walker, 13 Gray (jrant v. Wolf, 34 Minn. 32, 24 N. (Mass.), 612; Gibbs v. Blanchard, W. 289; West v. O'Harra, 55 Wis. 12 Mich. 292, 86 Am. Dec. 52; 645, 13 N. 894. Boyce v. Murphy, 91 Ind. 1, 46 Am. 5. Welch V. Marvin, 36 Mich. 59; Eep. 567; Rottman v. Fix, 25 Mo. Radcliff V. Poundstone, 23 W. Va. App. 571. 724; Wills V. Ross, 77 Ind. 1; Ca- 8. Turner v. Hubbell, 2 Day hill V. Eigelow, 18 Pick. (Mass.) (Conn.), 457, 2 Am. Dec. 115. 369; Bugbee v. Kendrickson, 130 9. Kirkham v. Morter, 2 B. & Mass. 437; Cole v. Hutchinson, 34 Aid. 613, distinguishing Reed v. Minn. 410, 24 N. W. 289; Cowdin Nash, 1 Wilson, 305. V. Cottgetren, 55 N. Y. 650. 144 Ch. 4 STATUTE OF FRAUDS. §§ 123, 124 liability assumed by the promisor;^ for a promise not made to the person entitled to enforce the liability assumed by the prom- isor is not within the statute.^ An English case, Green v. Cresswell,^ holds an. opposite doc- trine, but can no longer be regarded as the law in England as appears from several later cases.* The promise must be to the creditor, and not to the debtor. So if one upon a sufficient consideration arranges with the debtor to pay his debt, but not with the creditor, this is valid though not in writing.^ Where the purpose of a person who agrees to pay the debt of another is to gain some advantage or promote some interest or design of his own, and not to become a mere guarantor or surety for another's debt, and the promise is made on a sufficient con- sideration, it will be valid, although not in writing.^ § 124. When the promise is within the statute. — In order that the promise may be held to be within the statute, it is es- sential that there is to be a binding and substantial obligation or liability to the promisee to which the promise is collateral. The party for whom the promise has been made must be liable 1. Tighe V. Morrison, 116 N. Y. 3. 10 Ad. & El. 453. 263, 22 N. E. 164, 5 L. R. A. 617 4. Fitzgeral v. Dressier, 6 C. B., and note. N. S. 374; Reader v. Kingham, 13 2. Smith V. Sayward, 5 Me. 504; C. B., N. S. 344; Batson v. King, 4 Jones V. Shorter, 1 Ga. 294, Hurl. & N. 739; Cripps v. Hartnall, 44 Am. Dec. 649; Aldrich v. 4 Best & S. 414; Wildes v. Dudlow, Ames, 9 Gray (Mass.), 76; Cripps L. R. 19 Eq. Gas. 198. V. Hartnall, 4 Best & S. 414, 5. Center v. McQuesten, 18 Kan. 10 Jur., N. S. 200; Reader v. King- 476; Eastwood v. Kenyon, 11 Ad. & ham, 13 C. B., N. S. 344; Thomas El. 438. V. Cook, 8 Barn. & Cress. 728; Har- 6. Ames v. Foster, 106 Mass. 400, rison v. Sawtel, 10 Johns.- (N. Y.) 8 Am. Rep. 343; Nelson v. Boynton, 242, 6 Am. Dec. 337; Barry v. Ran- 3 Met. (Mass.) 396, 37 Am. Dec. eom, 12 N. Y. 462; Mallory v. Gil- 148; Fullman v. Adams, 37 Vt. lett, 21 N. Y. 412; Sanders v. Gil- 391; Clapp v. Webb, 52 Wis. 638, 9 lespie, 59 N. Y. 250, 252; McCraith N. 796; Fitzgerald v. Morrissey, 14 V. Bank, 104 N. Y. 414, 10 N. E. Keb. 198, 15 N. 233; Cliflford v. 862; Compare Kingsley v. Balcome, Luhring, 69 111. 401. 4 Barb. (N. Y.) 131. 145 § 124 FREEDOM OF CONTRACT, Ch. 4 to the part J to whom it is made.^ For unless it appears that some person other than the promisor has incurred an actual liability with respect to the subject-matter of the promise, the agreement is not within the statute, although the third person may be under an imperfect or merely moral obligation to re- spond.^ For if the other party be not liable to answer, it cannot be said that the undertaking of the promisor is one to answer for the former's debt or default, and therefore within the statute. There being no liability on the other party to the promisee, the promisor would have nothing to answer for, and his promise, therefore, will necessarily be an original and independent undertaking and not a collateral one.^ An oral acceptance of an order in existence is not within the statute, because acceptor simply agrees to pay his own debt to those persons to whom his creditors request him to pay.* And a promise to pay for services already rendered is not valid as to such services, because not in writing.^ A verbal accept- ance of a bill of exchange in existence or other order for the payment of money is not within the statute.® Unless forbidden 1. Hargreaves v. Parsons, 13 3. Resseter v. Waterman, 151 111. Mees. & Wels. 561; Resseter v. 169, 37 N. E. 875. Waterman, 151 111. 169, 37 N. E. 4. Lavell v. Frost, 16 Mont. 93, 875; Eastwood v. Kenyon, 11 Ad. 40 P. 146. & El. 438; Westfall v. Parsons, 16 5. Malone v. Ice Co., 88 Wis. 542, Barb. (N. Y.) 645; Prebble v. Bald- 60 P. 999. win, 6 Cush. (Mass.) 549; Pratt 6. Short v. Blount, 99 N. Car. V. Humphrey, 22 Conn. 317; Alger 49; Bruner v. Nisbett, 31 111. App. V. Scoville, 1 Gray (Mass.), 391; 517; Neuman v. Schroeder, 71 Tex. Baker v. Bucldin, 2 Denio (N. Y.), 81, 8 S. W. 632. See, also, Martyn 45, 43 Am. Dee. 726 and note; Per- v. Arnold, 36 Fla. 446, 18 So. 91; kins V. Littlefield, 5 Allen (Mass.), Magnon v. Clay, 1 A. K. Marsh. 370; Tighe v. Morrison, 116 N. Y. (Ky.) 189; Chase v. Trafford, 116 263, 22 N. E. 164, 5 L. R. A. 617 Mass. 529; Strickland v. Hamlin, and note. 87 Me. 81, 32 A. 732; Harbele v. 2. Downey v. Hinchman, 25 Ind. O'Day, 61 Mo. App. 390; Bixby v. 453; Read v. Nash, 1 Wilson, 305; Church, 28 Oreg. 242, 42 P. 613; Smith V. Mayo, 1 Allen (Mass.), Putnam Machine Co. v. Cann, 173 160; Tighe v. Morrison, 116 N. Y. Pa. St. 392, 34 A. 67; Spear v. 263, 22 N. E. 164, 5 L. R. A. 617 Bank, 156 111. 555, 41 N. E. 164; and note. Amont v. Christoff'erson, 57 Minn. 146 Ch. 4 STATUTE OF FRAUDS, §§ 124, 125 by statute, it is the rule of general law, that a promise to accept an existing bill is an acceptance thereof, whether the promise be in writing or by parol.' But an agreement to accept drafts and orders to be drawn must be in writing where the drawee has no funds of the drawer to disburse.^ § 125. Original promise. — The sale of goods to one at the request and on the sole credit of another, renders the promise to pay an original promise and takes the case out of the statute.^ Where the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, the promise is not within the statute and need not be in writing.^ Where the credit is given entirely to one party and the sale of goods is in fact to that party, though they are delivered to and used by another party, the statute does not apply; and in such case the oral promise of the first party is not an agreement to answer for the debt of another, but an original promise, upon which a cause of action may be alleged and proved Avithout a writing.^ But if the person for whose use the goods are fur- 234, 59 N. W. 304; Collins v. Stan- 311, 56 N. W. 890; Morris v. Oster- field, 139 Ind. 184, 38 N. E. 1091; liout, 55 Mich. 262, 21 X. W. 339; Lesserrich v. Pettit, 91 Iowa, 609, Calahan v. Ward, 45 Kan. 545, 26 60 N. VV. 192; Brown v. Bank, 88 P. 53; Baldwin v. Hiers, 73 Ga. Tex. 265, 31 S, VV. 285, 33 L. R. A. 739; Clark v. Jones, 87 Ala. 474, 359 and note; Fain v. Turner, 96 6 So. 352; Lance v. Pearce, 101 Ind. Ky. 634, 29 S. W. 628. 595. 7. Scudder v. Bank, 91 U. S. 2. Hind v. Holship, 2 Watts. 406; Wynne V. Raikes, 5 East, 514; (Pa.) 104, 26 Am. Dec. 107 How V. Loring, 24 Pick. (Mass.) Willis v. Cutter, 61 N. H. 405 254; Bank v. Archer, 11 Mees. & Clifford v. Luhring, 69 111. 401 W. 383. Leonard v. Vredenberg, 8 Johns. 8. Upham v. Clute. 105 Mich. (N. Y.) 28; Greene v. Burton, 59 350, 63 N. W. 317. Vt. 423; Lemmon v. Box, 20 Tex. 1. Collins V. Stanfield, 139 Ind. 329; Katzmyer v. Ennis, 27 N. J. 184, 38 N. E. 1091; Lessenick v. L. 376; Emerson v. Slater, 22 How. Pettit, 91 Iowa, 609, 60 N. W. 192; (U. S.) 43; Fitzgerald v. Morris- Nesbit V. Works, 22 Nev. 260, 38 sey. 14 Neb. 198, 15 N. 233. P. 670; Hartley v. Varner, 88 111. 3. Mackey v. Smith, 21 Oreg. 561; Barras v. Coal Co., 38 Neb. 398, 28 P. 974; Boston v. Farr, 148 14Y §§ 125-127 FKEEDOM OF CONTKACT. Ch. 4 nished be at all liable, any promise by a third person to pay for them must be in writing, as such an agreement is within the statute.* § 126. Evidence to place liability. — Book accounts, though competent, are not conclusive that the vendor relied upon the party charged to pay for them, but such evidence is opened to explanation by showing as a matter of fact to whom the credit was given. It is for the jury to judge upon all the evidence, to whom the credit was given, and whether the agreement of the defendants is original or collateral.^ Charges made on books are evidence, but may be explained, and is for the jury to say to whom credit was given.^ § 127. Promisor to pay debt on his own behalf. — The ques- tion often arises whether a party who promises to pay the debt of the person who first owed and still owes it, for a considera- tion passing to that person, is to be regarded as promising to Pa. St. 220, 23 A. 901; Greene v. Burton, 59 Vt. 423 ; Nelson v. Boyn- ton, 3 Met. (Mass.) 396, 37 Am. Dec. 148; Higgins v. Hallock, 60 Hun (N. "if.), 125, 14 N. Y. S. 550; Meyer v. Graffin, 31 Md. 350, 100 Am. Dee. 66; Peyson v. Conniff, 32 Neb. 269, 49 N. W. 340; Ellis v. Murray, 77 Ga. 542; Grant v. Wolf, 34 Minn. 32, 24 N. W. 289. 4. Wallace v. Wortham, 25 Miss. 119, 57 Am. Dec. 197; Andre v. Bodman, 13 Md. 241, 71 Am. Dec. 28; Whittemore v. Wentworth, 76 Me. 20; Willard v. Bosshard, 68 Wis. 545, 32 N. W. 538; Gump v. Halberstadt, 15 Oreg. 356, 15 P. 407 ; Packer v. Benton, 35 Conn. 343, 95 Am. Dec. 246 and note; Cole V. Hutchinson, 34 Minn. 410, 20 N. W. 319; Studley v. Bortli, 54 Mich. 6, 19 N. 568; Morrissey v. Kinsey, 16 Neb. 11, 19 N. 454; Langdon v. Richardson, 58 Iowa, 610, 12 N. 622; Harris v. Frank, 81 Cal. 280, 22 P. 856; Chappel v. Barkley, 90 Mich. 35, 51 N. W. 644; Bice v. Building Asso., 96 Mich. 24, 55 N. W. 382; Beubow v. Soothsmith, 76 Iowa, 154, 40 N. W. 693; Dougherty v. Bash, 167 Pa. St. 429, 31 A. 729; Walker v. Ir- win, 94 Iowa, 448, 62 N. W. 785; Howell V. Field, 70 Ga. 592; Teet- ers V. Lamborn, 43 Ohio St. 144, 1 N. E. 513. 1. Walker v. Richards, 41 N. H. 391 ; Barrett v. McHugh, 128 Mass. 165. 2. Larsen v. Jensen, 53 Mich. 427, 19 N. 130; Burphalter v. Farmer, 5 Kans. 477; Champion v. Doty, 31 Wis. 100; Maurin v. Fogelbeyer, 37 Minn. 23, 32 N. W. 858, 5 Am. St. Rep. 814; Hazen v. Bearden, 4 Sneed (Tenn.), 50. 148 Ch. 4: STATUTE OF FKAUDS. §§ 127, 128 pay on his own behalf or on the original debtor's behalf. In such case, if the debt is payable on his own behalf the promise may be verbal. If not, then it must be in writing.^ Thus, when by the release of property from a lien, the prom- isor is to pay the debt so as to enable him to apply the property to his own benefit, the release inures to his o^vn advantage, and it is evident that a promise to pay the debt in order to ob- tain the release may be regarded as made on his own behalf, and not on behalf of the original debtor, and any possible advantage to the latter is merely incidental and is not the thing bargained for. That promise is, therefore, in no proper sense a promise to answer for anything but for the promisor's own responsibility, and need not be in writing. And so when a person sells a claim and guarantees its payment, the guaranty is collateral to bis ow'n contract, and is not intended for the debtor's advantage.* § 128. Benefit accruing to promisor. — The promise of one person, though in form to answer for the debt of another, if founded upon a new and sufficient consideration, moving from the creditor and promisee to the promisor, and beneficial to the latter, is not within the statute of frauds, and need not be in writing.-^ A consideration to support a promise not in writing to pay the debt of another must be of a peculiar character, and must operate to the advantage of the promisor, placing him under a pecuniary obligation to the promisee independent of 3. Corkins v. Collins, 16 Mich. 29 S. W. 628; Green v. Hadfield, 478. 89 Wis. 138, 61 N. W. 310; Keyes 4. Leonard v. Vredenburg, 8 v. Maynard, 65 Vt. 667, 27 A. 319. Johns. (N. Y.) 29, 5 Am. Dec. 317 1. Mallory v. Gillett, 21 N. Y. and note; Nelson v. Boynton, 3 412; Cornell v. Electric Co., 61 111. Met. ( Mass. ) 396, 37 Am. Dec. 148 ; App. 325 ; Brownell v. Harsh, 29 Mallory v. Gillett, 21 N. Y. 412; Ohio St. 631; Bailey v. Marshall, White V. Rintoul, 108 K Y. 22, 15 174 Pa. St. 602, 34 A. 326; Van N. E. 318; Calkins v. Chandler, 36 Doren v. Tjader, 1 Nev. 118; Fisk v. Mich. 320, 24 Am. Rep. 593; Bice Reser, 19 Colo. 88, 34 P. 572; V. Building Asso. 96 Mich. 24, 55 Calkins v. Chandler, 36 Mich. 320, X. W. 382; McLauglilin v. Austin, 24 Am. Rep. 593; Clapp v. Webb, 104 Mich. 489, 62 N. W. 719. See, 52 Wis. 638, 9 N. 796; Lamb v. also. Fain v. Turner, 93 Ky. 634, Tucker, 42 Iowa, 118; Hawkes v. 149 § 128 FEEEDOM OF CONTRACT. Ch. 4 the original debt, and which obligation is to be discharged bj the payment of that debt.^ In such case the debt has become that of the new party prom- ising ; his promise is not to pay the debt of another, but his own ; as between him and the primary debtor the latter has become practically a surety entitled to require the payment to be mad& by the transferee. The consideration of the primary debt, by the transfer of the money or property into which that considera- tion had been in effect merged, may be said to have been shifted over to the new promisor, who thereby becomes under a duty of payment as obvious as if such original consideration had passed directly to him.^ So, if a person guaranties a debt in considera- tion of a release of a lien, or forbearance to file it, the guar- anty need not be in writing as held by many courts ;* but if the liability of the debtor continues, the agreement comes within the statute as generally held by the cases. ^ Phillips, 7 Gray (Mass.), 284; Lincoln v. Kinzey, 51 111. 435; Hayden v. Weldon, 43 N. J. L. 128, 39 Am. Rep. 551 and note; Fitz- gerald V. Morrissey, 14 Neb. 198, 15 N. 324; Perkins v. Catlin, 11 Conn. 230; Fuller v. Scott, 8 Kans. 25; Bateman v. Butler, 124 Ind. 223, 24 N. E. 989 ; Schafer v. Bark, 59 Pa. St. 148, 93 Am. Dec. 323; Nichols V. Allen, 23 Minn. 542; Schneider v. Schiffman, 20 Mo. 571; Mathews v. Seaver, 34 Neb. 592, 52 N. W. 283; Garvey v. Crouch, 35 S. W. 273, 18 Ky. L. R. 84; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Williams v. Leper, 3 Burr. 1886; Joseph v. Smith, 39 Neb. 259, 57 N. W. 1002, 42 Am. St. Rep. 571. 2. Ackley v, x'almenter, 98 N. Y. 425, 56 Am. Rep. 693; Cross v. Richardson, 30 Vt. 641; McKenzie V. Bank, 9 Wash. 442, 37 P. 668, 3 Am. St. Rep. 844; Rushing Reduc- tion Co. V. Hilliard, 92 Ga. 555, 17 S. E. 848; Ivenson v. Caldwell, 3 Wyo. 465, 2 P. 23ei. 3. First National Bank v. Chalmers, 144 N. Y. 432, 39 N. E. 331. 4. Smith V. Bank, 110 Pa. St. 508, 1 A. 760; Wells v. Brown, 118 Mass. 138; Scott v. White, 71 111. 287; Power v. Rankin, 114 111. 52, 29 N. E. 185; Crawford v. King, 54 Ind. 6; Wooten v. Wilcox, 87 Ga. 474; Rogers v. Hardware Co., 24 Neb. 653, 39 N. W. 844; Prime v. Koehler, 77 N. Y. 91; Shook v. Vanmeter, 22 Wis. 507. 5. Warner v. Willoughby, 60 Conn. 468, 22 A. 1014, 25 Am. St. Rep. 243; Curtis v. Brown, 5 Cush. (Mass.) 488; Stewart v. Jerome, 71 Mich. 201, 38 N. W. 895, 15 Am. St. Rep. ^43; Bunneman v. Wagner, 16 Oreg. 433, 18 P. 841, 8 Am. St. Rep. 306; Clark v. James, 85 Ala. 127, 4 So. 771; Simpson v. Harris, 21 Nev. 353, 13 P. 1009. 150 Ch. 4: STATUTE OF FKAUDS. j§ 128, 129 A holder of a note who verbally guaranties it in order to sell it, is liable on such guaranty.^ And the guaranty of the sol- vency of a party by an agent who sells his principal's goods, is not within the statute.^ The statute of frauds in relation to the liability of an as- signor of a promissory note, is not applicable to cases where a guaranty accompanies the assignment.^ The assignor owes the assignee, and that particular mode of paying him is adopted. He guarantees, in substance, his own debt. Though the debt of a third person is incidentally guaranteed, it is not necessary that the contract shall be in writino-.^ § 129. Indemnity. — In some States where the promise is one of indemnity and not of guarantee, it need not be in writ- ing,^ Where one person induces another to enter into an en- gagement by a promise to indemnify him against liability, that is not an agreement within the statute, and, therefore, is not required to be in writing.^ But it is otherwise in other States 6. Darst v. Bates, 95 111. 493; Milks V. Rich, 80 N. Y. 269, 36 Am. Rep. 615. 7. Sherwood v. htone, 14 N. Y. 267; Swan v. Nesmith, 7 Pick. (Mass.) 220, 19 Am. Dec. 282; Couturier v. Hastie, 5 H. L. Cas. 673. 8. Darst v. Bates, 95 111. 493; Smith V. Finch, 2 Scam. (111.) 321. 9. Darst v. Bates, 69 111. 493; Wilson V. Hentges, 29 Minn. 102, 12 N. 151; Garden v. McNeil, 21 N. Y. 330; Melone v. Keener, 44 Pa. St. 107 ; Barker v. Scudder, 56 Mo. 272; Beaty v. Grim, 18 Ind. 131; Thoman v. Dodge, 8 Mich. 50; Wy- man v. Goodrich, 26 Wis. 21 ; Com- pare Dows V. Sweet, IZO Mass. 322, 127 Mass. 66i, 134 Mass. 140, 45 Am. Rep. 310; Har singer v. New- man, 83 Ind. 124, 43 Am. Rep. 64. 1. Commercial F. Ins. Co. v. Morris, 105 Ala. 498 18 So. 762; Guild V. Conrad (1894), 2 Q. B. 885 ; Thomas v. Cook, 8 Barn. & Cr. 728; Fidelity, etc., Co. v. Lawlor, 64 Minn. 144, 06 N. W. 143 ; Wildes V. Dudlow, L. R. 19 Eq. 198. 2. Wildes v. Dudlow, L. R. 19 Eq. 198; Hargreaves v. Parsons, 13 Mees. & Wels. 561; Aldrich v. Ames, 9 Gray (Mass.), 76; Dunn V. West, 5 B. Mon. (Ky.) 376; Mills V. Brown, 11 Iowa, 314; Holmes v. Knights, 10 N. H. 175; Harrison v. Sawtel, 10 Johns. (N. Y.) 242, 6 Am. Dec. 337; Sanborn v. Merrill, 41 Me. 467; Blount v. Hawkins, 19 Ala. 100; Flemm v. Whitmore, 23 Mo. 430; Stark v. Raney, 18 Cal. 622; Marcy v. Crawford, 16 Conn. 549, 41 Am. Dec. 158; Bohannon v. Jones, 30 Ga. 488; Soule v. Albee, 31 Vt. 142; Lerch v. Gallop, 67 151 § 129 FKEEDOM OF CONTEACT. Ch. 4 where the promise to indemnify the promisee against any loss he may sustain by reason of the default or miscarriage of a per- son under liability to him; in this case the promise is within the statute f but a mere indemnity is not.* The law will not enforce, it seems, an express agreement to indemnify bail by the principal, as it would be against public policy,^ So, where the principal has deposited money to in- demnify the bail, and is exonerated, he cannot recover it, as the contract was illegal and the courts will not interfere.^ However, a third party may indemnify the bail, which they may recover, as it is not an illegal contract.^ And such contract of indemnity by a third party need not be in writing, as the bail is not given for the purpose of answering for the debt of another as in a civil action, so the statute does not apply.^ In some States in- demnity to bail is allowed by statute, then it is a valid contract.® Cal. 595; Keesling v. Frazier, 119 Ind. 185, 21 N. E. 552; Smith v. Delaiiey, 64 Conn. 264, 29 A. 416, 42 Am. St. Rep. 181 and note; Barry V. Ransom, 12 N. Y. 462; Anderson V. Spencer, 72 Ind. 315, 37 Am. Rep. 162. 3. Clements' Appeal, 52 Conn. 464; Nugent v. Wolfe, 111 Pa. St. 471, 4 A. 15, 56 Am. Rep. 291; Cheesman v. Wiggins, 122 Ind. 352, 23 N. E. 945; Easter v. White, 12 Ohio St. 219; Walberton v. Davis, 85 Va. 64, 6 S. E. 619, 17 Am. St. Rep. 56; Mallony v. Gillett, 21 N. Y. 412; Ferrell v. Maxwell, 28 Ohio St. 383, 22 Am. Rep. 393; Bissig V. Briton, 59 Mo. 204, 21 Am. Rep. 379; Green v. Cressvvell, 10 Ad. & El. 453; May v. Williams, 61 Miss. 125, 48 Am. Rep. 80; De- meritt v. Hickford, 58 N. H. 523; Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162; Draughan v. Bunt- ing, 9 Ired. (N. Car.) 10; Simpson V. Nance, 1 Spear. (S. Car.) 4; Compare Lerch v. Gallop, 67 Cal. 595, 3 P. 322. 4. George v. Hoskins, 30 S. W. 406, 17 Ky. L. R. 63; Jones v. Bacon, 145 N. Y. 446, 40 N. E. 216; Boyer v. Soules, 105 Mich. 31, 62 N. W. 1000; Croft v. Ins. Co., 40 W. Va. 508, 21 S. E. 854, 52 Am. St. Rep. 902; Minich v. Huff, 41 Neb. 616, 59 N. W. 795. 5. Jones v. Orchard, 16 C. B. 614; Harp v. Osgood, 2 Hill (N. Y.), 375. 6. Dunkin v. Hodge, 46 Ala. 523 ; Herman v. Jeuchner, 15 Q. B. Div. 561. 7. People V. Ingersoll, 14 Abb. Pr. N. S. 23; Stevens v. Hay, 61 111. 399; Harp v. Osgood, 2 Hill (N. Y.), 216. 8. Cripps V. Hartnoll, 4 B. & S. 414; Anderson v. Spencei", 27 Ind. 315. 9. Maloney v. Nelson, 158 N. Y. 351, 53 N. E. 31; Simpson v. Rob- ert, 35 Ga. 180. 152 Ch. 4 STATUTE OF FliAUDS. §§ 129-131 Where no authority is given by statute to take money in place of bail, a deposit of money so taken is illegal and cannot be re- covered back/° but it should be paid into the county treasury just as if collected on a recognizance.^^ § 130. Release of original debtor — Novation. — Where the verbal promise to accept an order is in effect a promise to dis- burse funds by the drawee for the purpose, or where the accept- ance is conditional on having funds of the drawee on hand, such verbal promise is enforceable.^ But where there is no agree- ment to disburse funds belonging to the drawer by the drawee, the case comes within the statute, and an agreement to accept drafts and orders must be in writing.^ An agreement for a full consideration to pay the debt of an- other, where the original debtor is released and a new promisor is accepted as the sole debtor, is not within the statute.^ So, a promise whereby a debtor agrees to pay his debt to a third per- son to whom his creditor is indebted, is not within the statute, being a contract of novation.^ And so when the contract is not collateral but a substituted contract, it is not within the statute.^ § 131. Receipt of property out of which to pay the debt. — • Where a person being under no legal obligation to do so, trans^ fers a claim to another upon the oral condition that the assignee will, out of the moneys collected therefrom, pay the indebte'dness of the assignor to a third person, and the assignment is accepted upon that condition, the promise is not voidable under the stat- ic. Smart v. Cason, 50 111. 105; 2. Upham v. Clute, 105 Mich. Eeinhard v. Columbus, 49 Ohio St. 350, G3 N. W. 317. 257, 31 N. E. 35; Butler v. Foster, 3. Lindley v. Simpson, 45 111. 14 Ala. 323. App. 648. 11. Rock Island v. Mercer 4. Wilson v. Voss, 54 Mo. App. County, 24 111. 35. 221; Trudeau v. Poutre, 165 Mass. 1. Sturges V. Bank, 75 111. 595; 81, 42 N. E. 508. Hughes V. Fisher, 10 Colo. 383, 15 5. Wood v. Corcoran, 1 Allen P. 702; Comstock v. Norton, 36 (Mass.), 405; Furbish v. Goodnow, Mich. 277. See, also, Gleason v. 98 Mass. 296; Eden v. Chaffee, 160 Fitzgerald, 105 Mich. 516, 63 N. W. Mass. 225, 35 N. E. 675; Lord v. 512. Davis, 3 Allen (Mass.), 131. 153 §§ 131, 132 FREEDOM OF CONTEACT. Ch. 4 ute, and the assignee, upon the collection of the claim bj him, becomes liable to such third person in the amount of such in- debtedness.^ And so the statute does not apply where the de- fendant after having received moneys from plaintiff's debtor -with, which to pay the debt, retains it. Having received and retained the money the debt becomes his own.^ If the receiver takes the property for such purpose and promises the debtor to pay such debt, the promise need not be in writing.^ Thus, where lumber was sold to A on the credit of B, and A pays B therefor, a promise by B to the vendor to pay him for the lum- ber will be in the nature of an original contract to pay the debt of a third party, founded upon a sufficient consideration, and not within the statute.^ The property must be placed in the hands of a third party unconditionally, and the third party must take it for that pur- pose. If the third party has the option to pay the debt out of his own property, and not out of the debtor's, then the promise to pay the creditor comes within the statute and must be in vn'iting.^ So where the assignee arranges to pay the assignor's debt after he has reduced or converted the property into cash, a verbal promise to the debtor's creditor before such conversion into money, to pay the debt is void, as it comes within the statute.® When the money is in the hands of the promisor no written contract is required. Thus, where a party agrees to pay board for workmen, and has the money for that purpose, an oral con- tract is sufficient.^ § 132. Contractor abandoning work — Agreement with his workmen to finish. — It is held that where a contractor aban- 1. Wills V. Bank, 23 Nev. 59, 42 4. Watkins v. Sands, 4 111. App. P. 490; Watson v. Perrigo, 87 Me. 207. 202, 32 A. 876; Phelps v. Rowe, 75 5. Ackley v. Parmenter, 98 N. Y. Hun (N. Y.), 414, 27 N. Y. S. 89. 425, 50 Am. Rep. 693; Shaaber v. 2. Hamill v. Hall, 4 Colo. App. Bushong, 105 Pa. St. 514. 290, 35 P. 927. 6. Belknap v. Bender, 75 N. Y. 3. Wait V. Wait, 28 Vt. 350; 446, 31 Am. Rep. 476. Dock V. Boyd, 93 Pa. St. 92. 7. Chicago, etc., Coal Co. v. Lid- dell, 69 HI. 639. 154 Ch. 4 STATUTE OF FRAUDS, 132 dons his work in erecting a building, the owner may be held on a verbal agreement made with the workmen to go on and com- plete the work/ But other cases hold that such contract with the workmen is within the statute and, therefore, must be in writing.^ The general rule is this: Where the leading object of the undertaking is to promote some objects of the owner, his promise to pay is not within the statute, although its effect is to release or suspend the debt of another. Thus, where a party had employed a contractor to build a house, who fails on account of financial inability to pay his workmen and material men, and the o'^\Tier who will be benefited by the performance of the contract, in order to make performance possible, promises to pay for the labor and materials, if the laborers and material- men will go on; such a promise is to answer for the debt of an- other, yet it is not a contract of surety, and need not be in writing. Such a promise is original, and not within the statute.^ Because the leading object is to promote some interest of his own, and so the promise is not within the statute, although the effect is to release or suspend the debt of another.* The dis- tinction is between a promise, the object of which is to promote the interest of another, and one in which the object is to promote the interest of the party making the promise. The former is within the statute ; the latter is not affected by it. But where the promisor is himself to receive the benefit for which the promise is exchanged, it is not usually material whether the original debtor remains liable or not;^ this is the general rule, but there are cases which hold that the statute applies in spite 1. Buchanan v. Moran, 62 Conn. 83, 25 A. 396; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Yeo- mans v. Mueller, 33 Mo. App. 343. 2. Farnham v. Davis, 79 Me. 282, 9 A. 725; Greene v. Latham, 2 Colo. App. 416, 31 P. 233. 3. Nelson v. Boynton, 3 Met. (Mass.) 396, 37 Am. Dec. 148; Hall V. Alfred, 105 Ky. 664, 49 S. W. 444. 4. Clifford v. Luhring, 69 111. 401; Walker v. Hill, 110 Mass. 249, 14 Am. Rep. 598; Merriman V. McManus, 102 Pa. St. 102; Kel- ley V. Schupp, 60 Wis. 76, 18 N. 725; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Emerson v. Slater, 22 How. (U. S.) 43. 5. Calkins v. Chandler, 36 Mich. 324; Jefferson v. Slagle, 66 Pa. St. 202. -f M ••' §§ 132, 133 FREEDOM OF CONTEACT. Ch. 4 of the benefit obtained, if the original liability is allowed to remain.® ARTICLE VII. Ageeement ISToT TO Be Peefoemed Within a Yeak. Section 133. What Contracts are Within the Statute. 134. Contracts Not Within the Statute. 135. One Year from the Making Thereof. 136. Parol Lease of Land for a Year. 137. Part Performance Within a Year — Performance on One Side. § 133. What contracts are within the statute. — The English statute of frauds provides that no action shall be brought in any agreement that is not to be performed within the space of one year from the making thereof.-^ This statute includes only such contracts as either by their express terms, or by a fair rea- sonable construction of all their provisions, cannot possibly, under any circumstances, be performed within a year from the making thereof.^ To be void under the statute, the contract must be one not to be performed within one year from the making thereof.^ The doctrine established by the adjudications of this country, is that, in order to bring a case within the operation of the statute, there must be an express and specific stipulation in the contract that it is not to be performed within the year, or it must appear therefrom that it was not the intention of the parties that the agreement should be performed within that period, that is there must be a negation of the right to perform within the year.* 6. Morrissey v. Kinsey, 16 Neb. Ivy. 184, 3 S. W. 129; Durham v. 17, 19 N. 454; Sext v. Geise, 80 Hiatt, 127 Ind. 514, 26 N. E. 401. Ga. 698, 6 S. E. 174; Wilhelm v. 3. Powder River Live Stock Co. Voss, 118 Mich. 106, 76 N. W. v. Lamb, 38 Neb. 339, 56 N. W. 308. 1019. 1. 29 Car. II, ch. 3, sec. 4. 4. Treat v. Hiles, 68 Wis. 344, 2. Kansas City, etc., R. R. Co. 32 N. W. 517, 60 Am. Rep. 858; V. Conlee, 43 Neb. 121, 61 N. W. Baker v. Lauterbach, 68 Md. 64, 11 111; Bullock V. Turnpike Co., 85 A. 703; Aiken v. Nogle, 47 Kans. 156 Ch, 4 STATUTE OF FRAUDS. § 134 § 134. Contracts not within the statute. — 1. The first class of cases not within the statute is where no term of years is al- luded to, but the time of performance is either wholly indefinite, or depends upon some future contingency or event which may or may not happen within a year. Although such event does not occur until a year, the promise is clearly not within the statute. Thus to marry in or within three years,^ or within four years f or to do something on the marriage or death of a person without further specifications of time ;^ or upon the happening of any other event which may happen at any time.^ It is well settled that an oral agreement, which according to the express understanding or contemplation of the parties may or may not be performed within a year, is not within the statute.^ Thus, the agreement to support a child until a certain age at which the child will arrive after several years, is not within the statute,' because it depends upon a contingency of the child's life, and if the child should die within one year, the contract would be fully performed.^ 2. The same general principles apply to promises to continue 96, 27 P. 825; Durham v. Hiatt, 404; Cole v. Singerly, 60 Md. 348; 127 Ind. 514, Kent v. Kent, 62 N. Clark v. Pendleton, 20 Conn. 495; Y. 560, 20 Am. Rep. 502; Barton Thomas v. Armstrong, 86 Va. 323, V. Gray, 57 Mich. 622, 24 N. W. 10 S. E. 6; McConahey v. Griflfy, 638; Horner v. Frazier, 65 Md. 1; 82 Iowa, 564, 48 IS. W. 983. Smalley v. Greene, 52 Iowa, 241, 3 5. Doyle v. Dixon, 97 Mass. 208, N. 78, 35 Am. Rep. 267 and note; 93 Am. Dec. 80 and note; Bartlett Powder River Live Stock Co. v. v. Mystic River Corp., 151 Mass. Lamb, 38 Neb. 339, 56 N. W. 1019; 433, 24 N. E. 780; Faine v. Turner, Worley v. Sipe, 111 Ind. 238, 12 96 Ky. 634, 29 S. W. 628; Sweet N. E. 385; Raynor v. Drew, 72 Cal. v. Lumber Co., 56 Ark. 629, 20 S. 307, 18 P. 82; Meflin v. Milton, 69 W. 514; Jones v. Pouch, 41 Ohio Ala. 354; Sarles v. Sharlow, 5 St. 146. Dak. 100, 37 N. W. 748; Gonzoles 6. Peter v. Westborough, 19 v. Chartier, 63 Tex. 36; Farwell v. Pick. (Mass.) 211; McClellan v. Tilson, 76 Me. 228; Blair To^vn Sanford, 26 Wis. 595; Curtis v. Lat. Co. V. Walker, 39 Iowa, 411. Sage, 35 111. 22; Berry v. Doremus, 1. Paris V. Strong, 51 Ind. 341. 30 N. J. L. 403; Haugh v. Blythe, 2. Lawrence v. Cook, 56 Me. 187, 20 Ind. 24; Smalley v. Greene, 52 96 Am. Dec. 443. Iowa, 241, 3 N. 78, 35 Am. Rep. 3. Kent v. Kent, 65 N. Y. 560. 267 and note; Blanding v. Sargent, 4. McPherson v. Cox, 96 U. S. 33 N. H. 239, 66 Am. Dec. 720. 157 § 134 FllEEDOM OF CONTRACT. Ch. 4: to pay or to do something until some future event or contin- gency, either distinctly expressed or necessarily implied, shall occur.^ Thus, the promise to support a child so long as the party thinks proper f to employ a person so long as he may be disabled by an injury;^ a contract by an actress to aid in per- forming a play so long as it continues a success;'" to pay a party a certain amount so long as he shall maintain and educate children properly. ^^ So contracts that may be terminated at any time on notice, and contracts to perform acts so long as the other party may need such work.^^ 3. The same doctrine applies when a party contracts not to do something, as never to carry on some particular business; because it is a personal engagement and stipulates nothing be- yond the promisor's life, and imposes no duties upon his legal representatives. The fact of abstaining from the business of the promisor until his death would be a full performance of the contract, and that event might occur within a year.^^ 4. Another class of cases are those in which the contract pro- vides a certain number of years as the extreme limit of its continuance, and also expressly contains an alternative, or con- tingency on which it may sooner terminate. If this contingency may happen within a year the contract is not within the stat- Tite.^^ 5. Another class of cases not within the statute are contracts 7. Dant v. Head, 90 Ky. 255, 13 9 Ex. 1, 309. See, also, Arkansas, S. W. 1073, 29 Am. St. Rep. 369; etc., R. R. Co. v. Whitby, 54 Ark. Heath v. Heath, 31 Wis. 223; Mc- 199, 15 S. W. 465, 11 L. R. A. 621 Gregor v. McGregor, L. R. 21 Q. B. and note. 424. 12. Blake v. Voight, 134 N. 8. Souch V. Strawbridge, 2 C. B. Y. 69, 31 N. E. 256, 30 Am. St. 808. Rep. 622; Walker v. Railroad Co., 9. East Tennessee, etc., R. R. Co. 26 S. Car. 80, 1 S. E. 366. V. Staub, 7 Lea (Tenn.), 397. See, 13. Foster v. McO'Blennis, 18 also, Hutchinson v. Hutchinson, 46 Mo. 88; Lyon v. King, 11 Met. Me. 154; Stowers v. Hollis, 83 Ky. (Mass.) 411, 45 Am. Dec. 219; 544; Atchison, etc., R. R. Co. v. Doyle v. Dixon, 97 Mass. 208; English, 38 Kan. 110, 17 P. 811. Richardson v. Pierce, 7 R. I. 330. 10. Haines v. Thompson, 19 N. See, also, Jordan v. Miller, 75 Va. Y. Supp. 184. 442. 11. Knowlman v. Bluett, L. R. 14. Seddon v. Rosenbaum, 85 158 C'h, 4 STATUTE OF FRAUDS. §§ 134, 135 for personal service. Thus, a contract for a reasonable time or from month to month comes within this class though the service extends through several years before settlements^ But a con- tract for a year's service to begin on some future day beyond the next is within the statute ;^^ and this is so provided the interven- ing day is Sunday.^" If the service is entered into on the day of the contract it is valid.^^ A contract of service which may be completed within a year is not within the statute. ^^ § 135. One year from the making thereof. — It appears that the phrase " from the making thereof " is omitted in some of the statutes of frauds. In such case, a lease for a term not longer than one year may be made to begin in tlje future by verbal contract, and will be held to be binding under the statute.^ And other courts arrive at the same conclusion by construction of the statute. Thus, in Texas, clause 4 of the statute reads: " Upon any contract for the sale of real estate, or the lease thereof for a longer term than one year." Clause 5 reads: " Upon any agreement which is not to be performed within the Va. 928, 9 S. E. 326, 3 L. R. A. 337 18. Cox v. Brewing Co., 53 Hun and note; Hodges v. Manuf. Co., 9 (N. Y.), 634, 6 N. Y. S. 84; Aiken K. I. 482; Roberts v. Rock Bottom v. Nogle, 47 Kans. 96. Co., 7 Met. (Mass.) 46. 19. Vocke v. Peters, 58 HI. App. 15. Kiene v. Snaeffing, 33 Neb. 338; Louisville, etc., R. R. Co. v. 22, 49 N. W. 773; Niagara Fire Offutt (Ky.), 36 S. W. 181, 18 Ky. Ins. Co. V. Greene, 77 Ind. 590; L. R. 303; Baltimore Breweries Co. Cole V. gingerly, 60 Md. 348; Aiken v. Callahan, 82 Md. 106, 33 A. 460; V. Nogle, 47 Kan. 96, 27 P. 825; Carter White Lead Co. v. Kivlin, Dickson v. Frisbee, 52 Ala. 165, 23 47 Neb. 409, 66 N. W. 536; Har- Am. Rep. 565; Brittain v. Rossiter, rington v. Railroad Co., 60 Mo. 11 Q. B. Div. 123. App. 223. See, also, Butler v. She- 16. Bracegirdle v. Heald, 1 han, 61 111. App. 561; Hughes v. Barn. & Aid. 727; McElroy v. Liid- Frum, 41 W. Va. 445, 23 S. E. lum, 32 N. J. Eq. 828'; Shumate 604; Frain v. Turner, 96 Ky. 634, V. Farlow, 125 Ind. 359, 25 N. E. 29 S. W. 628 ; Weatherford, etc., R. 432; Lee v. Hill, 87 Va. 497, 12 S. R. Co. v. Wood, 88 Tex. 191, 32 S. E. 1052, 26 Am. St. Rep. 666. W. 878, 28 L. R. A. 526. 17. Brittain v. Rossiter, 11 Q. 1. Becar v. Flues, 64 N. Y. 518; B. Div. 123. See, also, Billington Young v. Dake, 5 N. Y. 468; Sears V. Cahill, 51 Hun (N. Y.), 132, 4 v. Smith, 3 Colo. 287. A. Y. S. 660. 159 § 135 FREEDOM OF CONTRACT. Ch, 4: space of one year from tlie making thereof." The court says in construing these clauses that clause 5 would prohibit a verbal agreement for the lease of real estate for one year, to begin in future, if it were not that clause 4 provides specially a rule to govern such leases. The rule of construction is, that a special provision in a statute will control a general provision which would otherwise include that mentioned in the particular pro- vision. Hence, a lease for a term not longer than one year may be made to commence in the future by verbal contract, and is valid under the statute.^ The Texas court says that there is a marked difference in the language of clauses 4 and 5 of the article. The fifth prohibits the enforcements of contracts which are not to be performed " within one year from the making thereof," limiting both the time of commencement and continuance ; while the fourth clause prohibits the enforcement of leases of real estate " for a longer term than one year," limiting and fixing only the time of dura- tion. " If the legislature had intended that leases should be limited to one year from the time of making, then it was use- less to mention them in clause 4, for they would have been em- braced in clause 5." ^ But this interpretation is not accepted by all the courts, and it is held that a parol lease for a year, to commence at a future day, is within the clause of the statute and must be in writing to be valid;* but a part performance may take it out of the statute.^ 2. Bateman v. Maddox, 86 Tex. 484, 9 So. 164; Cook v. Redman, 546, 26 S. W. 51. See, also, Sobey 45 Mo. App. 397; White v. Hol- V. Brisbee, 20 Iowa, 105; Anderson land, 17 Oreg. 3, 3 P. 5/3; Jellett V. May, 10 Heisk. (Tenn.) 90 Eaton V. Whitaker, 18 Conn. 230 Huffman v. Starks, 31 Ind. 474 V. Rhode, 43 Minn. 166, 45 N. W. 13; Greenwood v. Strather, 91 Ky. 482, 16 S. W. 138; Alt v. Lohnas, Whiting V. Ohlert, 52 Mich. 462, 19 111. 576; Wolf v. Dozer, 22 Kan. 18 N. 219, 50 Am. Rep. 205; Mc- 436; Atwood v. Norton, 31 Ga. Croy V. Toney, 66 Miss. 233, 5 So. 507. 392, 2 L. R. A. 847. 5. People's Pure Ice Co. v. 3. Bateman v. Maddox, 86 Tex. Trumbull, 70 Fed. Rep. 166; 646, 554, 26 S. W. 51. Rhodes Furniture Co. v. Weedon, 4. Wheeier v. Frankenthal, 78 108 Ala. 252, 19 So. 318. 111. 124; White v. Levy, 93 Ala. 160 Ch. i STATUTE OF FRAUDS. §§ 13G, 137 § 136. Parol lease of land for a year. — A tenant by parol for a single year, has not, at common law, nor save by express valid stipulation, or custom of the country, or estoppel in pais a right to an outgoing crop.^ But this is otherwise in Pennsyl- vania, New Jersey, and Delaware.'' The fact that the usual crop of the country cannot come to maturity in a year, does not raise by implication a right to hold over.^ And the right to enter and reap a crop of wheat after the expiration of a parol lease of land is an interest in land.^ Hence, a parol lease of land for one year, coupled with a verbal agreement that the tenant may sow the land to wheat, will not give him the right to enter after the expiration of the year, and harvest the wheat.^° § 137. Part performance within a year — Performance on one side. — The general rule in England and in many of the United States is that an agreement does not fall within the statute, provided one party can, according to the contract, per- form and does perform within a year.^ But other courts hold that the contract is still within the statute whenever the other party's promise is not to be performed within the year.^ And 6. Wigglesworth v. Dallison, 1 1. Bracegiidle v. Heald, 1 Barn. Doug. 201; Caldecatt v. Suiythies, & Aid. 722; Donellan v. Read, 3 7 Car. & P. 808; Bain v. Clark, 10 Barn. & Ad. 899; Worden v. Sharp, Johns. (N. Y.) 424; Beeder v. 50 111. 104; Halbrook v. Armstrong, Sayre, 70 N. Y. 180, 26 Am. Rep. 10 Me. 31; Horner v. Frazier, 05 507. Md. 1; Washburn v. Dasch, 68 7. Gordon v. Little, 8 Serg. & Wis. 436, 32 N. W. 551, 00 Am. R. (Pa.) 533, 11 Am. Dec. 032; Rep. 873; Smock v. Smock, 37 Mo. Stutz V. Dickey, 5 Binn. (Pa.) 285, App. 56; Winters v. Cherry, 78 Mo. 6 Am. Dec. 411; Demi v. Bossier, 1 344; Kendall v. Gaxnead, 55 Neb. Pa. 224; Van Doren v. Everett, 2 403, 75 N. W. 852; Blanding v. South. (N. J.) 460, 8 Am. Dec. 615; Sargent 33 N. H. 239, 66 Am. Dec. Templeman v. Biddle, 1 Harr. 720; Beny v. Doremus, 30 N. J. (Del.) 522. L. 399; Piper v. Foster, 121 Ind. 8. Reeder v. Sayre, 70 N. Y. 407, 23 X. E. 269; Smalley v. 180, 26 Am. Rep. 5()7. Greene, 52 Iowa, 241, 3 N. 78, 35 9. Carney v. Mosher, 97 Mich. Am. Rep. 267 and note; Durfee v. 554. 56 N. W. 935. O'Brien, 16 R. I. 213, 14 A. 857. 10. Carney v. Mosher, 97 Mich. 2. Pierce v. Paine, 28 Vt. 34; 554, 56 N. W. 935. Marcy v. Marcy, 9 Allen (Mass.), 161 137 FREEDOM OF CONTRACT. Ch. 4: SO a part performance by one of the parties will not take the agreement ont of the statute.^ In Boydell v. Drummond,* it was held that an agreement is within the statute, if its performance is to be commenced on both sides within a year. In 1832, in Donellan v. Eead,^ it was decided that the statute refers only to agreements to be per- formed on either side within a year. But this decision was doubted in another case,^ but followed in Cherry v. Heming.^ In 1886 the doctrine of Donellan v. Read was disapproved, but was considered to be too finely established to be overruled.^ 8; Lane v. Shackford, 5 N. H. 130; Bioadwell v. Getman, 2 Denio (N. Y.), 87; Whipple v. Parker, 29 Mich. 369; Montague v. Garnett, 3 Bush (Ky.) 297; Wilson v. Ray, 13 Ind. 1. 3. Shumate v. Far low, 125 Ind. 359, 25 N. E. 432; Osborne v. Kim- ball, 41 Kan. 187, 21 P. 163; Com- pare Washburn v. Dasch, 68 Wis. 436, 32 N. W. 551, 60 Am. Rep. 873. 4. 11 East, 142. 5. 3 Barn. & Adol. 899. 6. Souch V. Strawbridge, 2 Man. G. & S. 808. 7. 4 Exch. 631. 8. Miles V. Estate Co., 32 Ch. D. 266. See, also. Rake v. Pope, 7 Ala. 161; Johnson v. Watson, 1 Kelly (Ga.) 348; Bates v. Moore, 2 Bailey (S. Car.), 614; Perkins V. Clay, 54 N. H. 518; Curtis v. Sage, 35 111. 22; Grace v. Lynch, 80 Wis. 166, 49 N. W. 751; Dant V. Head, 90 Ky. 255, 13 S. W. 1073, 29 Am. St. Rep. 369; Sed- don V. Rosenbaum, 85 Va. 928, 9 S. E. 326, 3 L, R. A. 337 and note; Atchison, etc.. Railroad Co. v. Eng- lish, 38 Kan. 110, 16 P. 82; Com- pare Warner v. Railway Co., 54 Fed. Rep. 922, 4 C. C. A. 673. 162 Ch. 4 STATUTE OF FRAUDS. § 138 ARTICLE VIII. Agreements Within Section Seventeen. Section 138. Application of Statute. 139. Executed and Executory Contracts. 140. Taking Back Chattels After Sale. 141. Price. 142. Amount of Sale. 143. Sale of Several Articles. 144. Goods, Wares, and Merchandise. 145. Delivery and Acceptance. 146. Contracts for Work and Labor. 147. What is an Acceptance — When Question for Jury. 148. Goods Delivered Subject to Examination — Acceptance. 149. Intention. 150. Property in Possession of Third Person. 151. Acts which Amount to an Acceptance. 152. Designation of Carrier by Vendee — Delivery of Goods. 153. Earnest and Part Paj'ment. 154. When Part Payment Must be Made. 155. What Constitutes Part Payment. 156. In What Property Part Payment may be Made. § 138. Application of statute. — The seventeenth section of the statute of frauds/ declares all contracts for the sale of goods, wares, and merchandise for the price of ten pounds and upwards to be invalid unless part of the goods be accepted, or part of the price be paid, or something be given in earnest to bind the bargain, or some note or memorandum in writing be signed bj the party to be charged. This section governs all sales of goods, as at auction or at private sale.^ In Illinois this section has never been enacted, and hence no cases from this State can be cited as to its application and interpretation. It is generally held in England^ and the United States that 1. 29 Car. II, ch. 3. ing, 4 Har. & J. (Md.) 186, 7 Am. 2. Kenworthy v. Schofield, 2 Dec. 669. Barn. & Cr. 945; Davis v. Howell, 3. Pollock on Cont. 605; Anson 2 Pick. (Mass.) 64, 13 Am. Dec. on Cont. 67. 398 and note; Singstaek v. Hard- 163 §§ 138, 139 FREEDOM or CONTRACT. Ch. 4: the contracts not in accord with the provisions are not void but only not enforceable by suit, as in case of verbal contracts v^ith- in section fourth.* The later enunciations of the English and American courts hold that upon principle contracts not made in compliance with this section are not void but voidable.^ For any case to be within this section the contract must be for the sale of goods, wares, and merchandise, of a price or value in the statute specified. § 139. Executed and executory contracts. — The seven- teenth section extends to executed as well as to executory con- tracts,'' and no sale is valid except when the statute has been complied with.^ At an early time in England, it was held that this section did not include executory contracts f so it was en- acted^ that it should apply "notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." However, before this statute was passed the doctrine had been changed and executed and executory contracts were held to be within the statute.^" This is the American doctrine.^^ Hence a 4. Townsend v. Hargraves, 118 7. Buxton V. Bedell, 3 East, Mass. 325; Compare Houghtaling 303; Marsh v. Hyde, 3 Gray V. Ball, 20 Mo. 503; Alderton v. (Mass.), 331; Alexander v. Com- Bucboz, 3 Mich. 322; Daniel v. ber, 1 H. Bl. 20. Fiazer, 40 Miss. 507; Head v. 8. Clayton v. Andrews, 4 Burr. Goodwin, 37 Me. 181. 2101; Towers v. Osborne, 1 5. Maddison v. Alderson, 8 App. Strange, 506. Cas. 407, 488; Bira v. Munroe, 66 9. 9 Geo. IV, c. 14, sec. 7. Me. 337, 22 Am. Rep. 571; Harman 10. Corbett v. Watson, 5 Barn. V. Reeve, 18 C. B. 587; Townsend & Aid. 613; Cooper v. Elston, 7 V. Hargraves, 118 Mass. 325, 334. Term R. 14; Rondeau v. Wyatt, 2 6. Bennett v. Hull, 10 Johns. H. Bl. 63. (N. Y.) 364; Rondeau v. Wyatt, 2 11. Crookshank v. Burrell, 18 H. Bl. 63; Cooper v. Elston, 7 Johns. (N. Y.) 58, 9 Am. Dec. 187 Term R. 14; Edwards v. Railroad and note; Cason v. Cheely, 6 Ga. Co., 48 Me. 370; Hight v. Ripley, 554; Bennett v. Hall, 10 Johns. 19 Me. 137. 1G4 Ch. 4 STATUTE OF FRAUDS. §§ 139-141 contract by a railroad company to take all the wood that a per- son would put on its line of its road during the season at the price it had paid him before for wood, or more if the wood was better, is within the statute.^' And an executory contract for the sale of chattels is within the statute, although it also embraces some other agreement to which the statute is not applicable.^^ § 140, Taking back chattels after sale. — Executed contracts of sale, with a promise by the vendor of chattels, that in case they do not suit the vendee or do not possess certain specified qualities the vendor will repay to the vendee the purchase-price upon their return, do not make such promise an independent contract;^ it is an entire contract, and the promise to take back the property and repay the purchase-price is not void under the statute.^ And when an agent, by an oral contract, sells and delivers the goods of a disclosed principal, his personal oral warranty of quality is not a contract, independent of the contract of sale, but is a part of it, and one consideration is sufficient to sup-, port the sale and warranty.^ § 141. Price. — The price is an essential element in a con- tract of sale, and a memorandum which does not state the price (N. Y.) 364; Edwards v. Kailioad 1. Thornton v. Wynn, 12 Wheat. Co., 48 Me. 379; Waterman v. ( U. S.) 183; Towers v. Barnett, 1 Meigs, 4 Cush. (Mass.) 497; Jack- Term R. 133. son V. Covert, 5 Wend. (N. Y.) 2. Wooster v. Sage, 67 N. Y. 67; 139; Lamb v. Crafts, 12 Met. Williams v. Burgess, 10 Ad. & E. (Mass.) 353; Sawyer v. Ware, 36 499; Fitzpatrick v. Woodruff, 96 Ala. 676; Franklin v. Long, 7 Gill N. Y. 561; Johnston v. Trask, 116 & J. (Md.) 407; Newman v. Mor- N. Y. 136, 22 N. E. 377, 5 L. R. A. ris, 4 Harr. & Mc. (Md.) 421. 630, 15 Am. St. Rep. 394; White 12. Edwards v. Railroad Co., 48 v. Knapp, 47 Barb. (N. Y.) 549; Me. 379. See, also. Waterman v. Fay v. Wheeler, 44 Vt. 292; Diek- Meigs, 4 Cush. (Mass.) 499. inson v. Dickinson, 29 Conn. 600. 13. Hanson v. Marsh, 40 Minn. 3. Johnston v. Trask, 116 N. Y. 1, 40 N. W. 841; Harman v. Reeve, 136, 22 X. E. 377, 5 L. R. A. 630, 18 C. B. 587; Irvine v. Stone, 6 15 Am. St. Rep. 394. Cush. (Mass.) 508. 165 §§ 141-143 FKEEDOM OF CONTRACT. Ch. 4 — except in cases where no price being stipulated, it is left to be measured bj the rule of reasonable or market value — is insufficient to satisfy the statute, and the contract is bj the terms of the statute void.* Where the parties fix no price, the case is within or without the statute according to the finding of the jury.^ It will be pre- sumed in the absence of a specified consideration for the sale, that there was a promise to pay a reasonable price, provided there be no verbal agreement as to the price. § 142. Amount of sale. — Most of the statutes fix the amount of sale which brings it within the statute ; if not within the statute it is governed by the common law. In England the amount of sale is ten pounds. In Massachusetts, Oregon, In- diana, Wisconsin, and 'New York, it is fifty dollars. In Ar- kansas, Maine, Missouri, and l^ew Jersey it is thirty dollars. In New Hampshire it is thirty-three dollars. In Vermont, forty dollars. In California and Idaho, two hundred dollars. In Florida and Iowa no amount is fixed.® § 143. Sale of several articles. — When several articles are sole separately and independently, one of which reaches the amount fixed by statute, the statute does not apply ; but if they are all included in the same transaction and the price is equal to or exceeds the amount of the statute, then it applies,'^ and the combined price of all the articles transferred in the one trans- action, is compared with the amount in the statute.^ 4. Elmore v. Kingscott, 5 Barn. 6. See Mass. Gen. Stat. c. 105, & Cr. 583 ; Acebal v. Levy, 10 Bing. sec. 5 ; Smith v. Smith, 8 Blackf. 376; Goodman v. Griffiths, 1 Hurl. (Ind.) 208; Dykers v. Townsend, & N. 574; Ide v. Stanton, 15 Vt. 24 N. Y. 57; Buckman v. Nash, 12 685, 40 Am. Dec. 698 ; Waterman V. Me. 474; Carman v. Smick, 3 Meigs, 4 Gush. (Mass.) 497; As- Green (N. J.), 252. croft V. Butterworth, 136 Mass. 1. Baldey v. Parker, 2 Barn. & 511; Stone v. Browning, 68 N. Y. Cr. 37. 698, 604; James v. Muir, 33 Mich. 2. Gilman v. Hill, 36 N. H. 311 j 223. Jenness v. Wendell, 51 N. H. 63 j 5. Harmon v. Reeve, 18 C. B. 12 Am. Hep. 48. 587. 166 Ch. 4 STATUTE OF FRAUDS. §§ 144, 145 § 144. Goods, wares and merchandise. — What are goods, wares, and merchandise, is a question not easily an- swered. In fact the courts are in conflict as to this subject, and cannot be reconciled. Thus, it is said that shares of stock are but choses in action, and not within the statute. This is the English holding at the present time.^ And this is the decision of many of the American courts.^ Some of the courts of this country have taken a different view of the question, and hold choses in action to be included within the meaning of the statute;^ so is a sale of book accounts,* of land scrip.^ In California, Minnesota, Montana, ISTebraska, ISTevada, Xew York, jSTorth Dakota, South Dakota, Utah, Wisconsin, and Wyoming, the words " things in action " have been substituted in the statute; and in Connecticut, Florida, Mississippi, and Oregon the words " personal property " have been added to the statute. These additions must be taken into consideration in reading decisions of these States. § 145. Delivery and acceptance. — There must be both a de- livery and an acceptance ; and both of the parties must partake in the same act. A delivery alone by the vendor is not suffi- cient to take the contract out of the statute ; there must also be a receipt and acceptance of the thing sold by the vendee, to have that effect.^ And a vendor cannot sell that which does not be- 1. Benjamin on Sales, 90, 91 j (Mass.) 9; Boardman v. Cutter, Humble v. Mitchell, 11 Adol. & El. 128 Mass. 388; Hinchman v. Lin- 205. coin, 124 U. S. 38, 8 S. Ct. 369; 2. Webb V. Railroad Co., 77 Bernhardt v. Walls, 29 Mo. App. Md. 92, 39 Am. St. Rep. 396; Clark 206. V. Burnham, 2 Story, C. C. 15; 4. Smith v. Bouck, 33 Wis. 19; Whittemore v. Gibbs, 24 N. H. 484; Walker v. Supple, 54 Ga. 178. \awter v. Griffin, 40 Ind. 593. 5. Somerby v. Buntin, 118 Mass. 3. Greenwood v. Law, 55 N. J. 279; Blakeney v. Goode, 30 Ohio L. 168, 26 A. 134, 19 L. R. A. 688; St. 350; Compare Jones v. Rey- Baldwin v. Williams, 3 Met. nolds, 120 N. Y. 213, 24 N. E. 379. (Mass.) 365; North v. Forest, 15 6. Powder River Live Stock Co. Conn. 400; Pray v. Mitchell, 60 v. Lamb, 38 Neb. 339, 56 N. W. Me. 430; Tisdale V. Harris, 20 Pick. 1019; Simmons Hardware Co. v. 167 §§ 145, 146 FEEEDOM OF CONTRACT. Ch. 4 long to him and not in his possession. Thus, a sale by a tenant of a crop raised on the leased premises, and no delivery made, he having abandoned the premises, is void. After the abandonment by the tenant, the possessory right in what- ever was upon the premises reverted to the owner of the land, and there was no possession in the tenant at the time of the proposed sale.^ It may be a question for the jury whether there has been such an acceptance and receipt of the chattels as to take the contract out of the statute.^ Acceptance and delivery need not be simultaneous, but either may take place before the other;® and delivery may be subse- quent to the agreement. ^° In most States a delivery on Sunday is void, but the goods may be accepted subsequently, when the sale will be valid. ^^ And surrender of a farm and tools to a vendee, makes the sale of the tools valid.-^^ § 146. Contracts for work and labor. — When work and labor are to be bestowed by the vendor upon the article sold before it is to be delivered some courts hold that the contract is not within the statute.^ That is where a mechanic furnishes articles, it is generally held that an oral bargain for the making of the thing is good.^ But where a manufacturer produces the Mullen, 33 Minn. 195, 22 N. 294; 061, 4 Am. Rep. 721; Victor v. Caulkins v. Hellman, 47 N. Y. 449, Stroock, 15 Daly (N. Y.), 329, 5 7 Am. Eep. 461; Ex parte Parker, N. Y. S. 659, 7 N. Y. S. 959. 11 Neb. 309, 9 N. 33; Smith v. 10. Ortloff v. Klitzke, 43 Minn. Brennan, 62 Mich. 349, 28 N. W. 154, 44 N. W. 1085; McCarthy v. 892, 4 Am. St. Rep. 867; Fon- Nash, 14 Minn. 95; Gaslin v. Pin- taine v. Bush, 40 Minn. 141, 41 N. ney, 24 Minn. 322. W. 465, 12 Am. St. Rep. 722; Shaw 11. Schmidt v. Thomas, 75 Wis. Lumber Co. v. Manville, 4 Idaho, 529, 44 N. W. 791. 369, 39 P. 559; Crosby Hardware 12. Wilkinson v. Wilkinson, 61 Co. V. Tester, 90 Wis. 412, 63 N. W. Vt. 409, 47 A. 795. 1057. 1. Eichelberger v. McCauley, 5 7. Maclary v. Turner, 9 Houst. Harr. & J. (Md.) 213, 9 Am. Dec. (Del.) 281, 32 A. 325. 514; Rentch v. Long, 27 Md. 188; 8. Becker v. Holm, 89 Wis. 86, Bagley v. Walker, 78 Md. 239, 27 61 N. W. 307. A. 1033. 9. Amson v. Dreher, 35 Wis. 2. Parsons v. Loucks, 48 N. Y. 616; Cross v. O'Donnell, 44 N. Y. 17, 8 Am. Rep. 517; Crookshank v. 168 Ch. 4 STATUTE OF FRAUDS. §§ 146, 147 goods in the usual course of his business, the contract is one of sale and not for the bestowal of work and labor.^ A contract for the sale of the whole of a crop for a certain year, to be de- livered at a certain price, as soon as it can be gathered and pre- pared for market, is within the statute.* To make the case one for work and labor, the contract should contemplate or require some change in the condition, business, or circumstances of the vendor.^ In some States a distinction is made between chattels in ex- istence and goods to be manufactured. When the goods are in existence, then it is a contract of sale; if to be manufactured then a contract of work and labor.® It is held that if the thing sold exists at the time in solido, the mere fact that the seller is to do something to put it in a marketable condition does not take the contract out of the operation of the statute.^ § 147. What is an acceptance — When question for jury. — Ordinarily the question of acceptance is one of fact. How- ever if the uncontroverted facts are such as cannot afford any ground for finding an acceptance, or where, though the court may admit that there is a scintilla of evidence tending to show Burell, 18 Johns. (N. Y.) 58, 9 105; Sawyer v. Ware, 36 Ala. 675; Am. Dec. 187 and note; Allen v. Bird v. Muhlinbrink, 1 Rich. L. Jarvis, 20 Conn. 38; Meincke v. (S. Car.) 199, 44 Am. Dec. 247. Falk, 55 Wis. 427, 13 N. 545, 42 5. 0"Neil v. Mining Co., 3 Nev. Am. Rep. 722. 141; Goddard v. Binney, 115 Mass. 3. Pratt V. Miller, 109 Mo. 78, 450, 15 Am. Rep. 112; Finney v. 18 S. W. 965, 32 Am. St. Rep. 656; Apgar, 31 N. J. L. 267; Prescott v. Goddard v. Binney, 115 Mass. 450. Locke, 51 N. H. 94, 12 Am. Rep. 4. Cason v. Cheely, 6 Ga. 554; 55; Crockett v. Scribner, 64 Me. Mighell V. Dougherty, 86 Iowa, 480, 447; Mixer v. Howarth, 21 Pick. 53 N. W. 402, 17 L. R. A. 755, 41 (Mass.) 205, 32 Am. Dec. 256. Am. St. Rep. 511. See, also, Spen- 6. Higgins v. Murray, 73 N. Y. cer V. Cone, 11 Met. (Mass.) 283; 252; Pawelski v. Hargreave, 47 N. Lamb v. Crafts, 12 Met. (Mass.) J. L. 334, 54 Am. Rep. 162 and 353; Prescott v. Locke, 51 N. H. note ; Pitkin v. Noyes, 48 N. H. 294, 94, 12 Am. Rep. 55; Atwater v. 2 Am. Rep. 218. Hough, 29 Conn. 608; Finney v. 7. DoA\Ties v. Ross, 23 Wend. (N. Apgar, 31 N. J. L. 266; Edwards Y.) 270; Cooke v. Millard, 5 Lans. V. Railroad Co., 48 Me. 379, 54 Me. (N. Y.) 246. 169 §§ 147, 148 FUEEDOM OF CONTEACT. Ch. 4- an acceptance, the court could still feel bound to set aside a verdict finding an acceptance on the evidence, it is the duty of the court to withhold the case from the jurj.^ But otherwise the question of acceptance is one of fact for the jury upon all the evidence.^ § 148. Goods delivered subject to examination — Accept- ance. — Performance of the vendor of his part of a verbal con- tract is not sufficient to give it validity, where the buyer does not perform his part.-^ So, where goods are sold subject to ex- amination under a verbal contract, so long as the vendee can, without self-contradiction, declare that the goods are not to be taken in fulfillment of the contract, he has not accepted them. And it is immaterial whether his refusal to take them be rea- sonable or not.^ To constitute an acceptance, it is requisite that the purchaser shall have made the examination and pronounced it satisfactory, or shall have dealt with the goods, or done some unequivocal act, evincing his intent to accept them unconditionally as his own. And although the refusal to accept be unreasonable, without an acceptance the contract is not valid.^ In general when the vendee takes upon himself to exercise a dominion over the property, and deals with it in a manner in- consistent with the rights of property or the title being in the vendor, that is evidence of its acceptance.* When the contract is for the purchase of articles to be selected by the vendor from a large number of similar articles, to set aside for the buyer, there is no sale until the buyer has examined and accepted them.^ 8. Denny v. Williams, 5 Allen 598; Hewes v. Jordan, 39 Md. 472; (Mass.), 5; Howard v. Borden, 13 Knight v. Mann, 118 Mass. 143. Allen (Mass.), 299; Stone v. 3. Stone v. Browning, 68 N. Y. Browning, 68 N. Y. 598. 598. 9. Garfield v. Paris, 96 U. S. 557. 4. Morton v. Tibbett, 15 Q. B. 1. Stone V. Browning, 51 N. Y. 428. 211, 68 N. Y. 598; Caulkins v. Hell- 5. Cusack v. Robinson, 1 Smith man, 47 N. Y. 449, 7 Am. Rep. 461. & B. 299; Bog Lead Mining Co. v. 2. Stone v. Browning, 68 N. Y. Montague, 10 C. B., N. S. 481; 170 Ch. 4 STATUTE OF FEAUDS. §§ 149, 150 § 149. Intention. — To constitute an acceptance the vendee must deal with the paper in such a manner as to evidence his acknowledgment of the contract. The property must be com- pletely transferred, which includes both delivery by the vendor and acceptance by the vendee. There must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual receiving and acceptance by the latter with the intention of taking pos- session as owner. ^ The intention of the parties at the time as to the delivery must prevail, even if there be something yet to be done to complete it.^ § 150. Property in possession of a third person. — Many cases hold that the delivery is complete between the parties, everything else being done, upon receipt of the order for the delivery of the property when in the keeping of another person and in another place.^ And when the possession is obtained from the third person by fraud of the vendee, it may be treated by the vendor as a delivery to complete the sale at his option.* It is the fact of delivery under and in pursuance of the agree- Coombs V. Railroad Co., 3 Hurls. & 11 Iowa, 32; McLaughlin v. Piatt, Nor. 510; Ivnight v. Mann, 118 27 Cal. 451. Mass. 143; New England, etc., Co. 1. tStone v. Browning, 51 N. Y. V. Worsted Co., 165 Mass. 328, 43 211; Oilman v. Hill, 36 N. H. 311; N. E. 112, 52 Am. St. Rep. 516; The Redington v. Roberts, 25 Vt. 686; Elgie Cotton Cases, 22 Wall. (U. Galvin v. Kenneth, 21 Oreg. 184, S.) 180; Hatch v. Oil Co., 100 U. 24 P. 1039. S. 124; Morrison V. uingley, 63 Me. 2. Sewell v. Eaton, 6 Wis. 490, 553; Bailey V. Smitn, 43 N. H. 141; 70 Am. Dec. 471; Fletcher v. In- Halderman v. Duncan, 51 Pa. St. gram, 46 Wis. 191, 50 N. W. 424; 66 ; Hahn v. Fredericks, 30 Mich. Kirby v. Johnson, 22 Mo. 354 ; Hen- 223, 18 Am. Rep. 119; Vv'oods v. line v. Hall, 4 Ind. 189; Gough v. McGee, 7 Ohio, 467; Browning v. Edelen, 5 Gill (Md.), 101; Foster Hamilton, 42 Ala. 484; Commercial v. Ropes, 111 Mass. 10. Nat. Bank v. Gillette, 90 Ind. 268, 3. Ranney v. Higby, 4 Wis. 154; 46 Am. Rep. 222; Ferguson v. Magee v. Billingsly, 3 Ala. 679. Bank, 14 Bush. (Ky.) 555, 29 Am. 4. Weed v. Page, 7 Wis. 503; Rep. 418; Baldwin v. McKay, 41 Somers v. McLaughlin, 57 Wis. 358, Miss. 358; Upham v. Dodd, 24 15 N. 442. Ark. 545; Courtright v. Leonard, 171 §§ 150, 151 FREEDOM OF CONTRACT. Oh. 4 ment of sale, not the time when the delivery is made, that the statute renders essential to the proof of a valid contract; so that a delivery at a future day is sufficient if made in pursuance of the contract^ And upon the same principle, the place of delivery can make no difference.^ And so when an order is made to deliver the property at a designated place, and it is delivered at such place, it is sufficient, and the acceptance is complete when the bargain was made.^ § 151. Acts which amount to an acceptance. — Any une- quivocal act or acts on the part of the vendee which amount to an assertion of ownership of the property is sufficient to take the sale out of the statute. Acts of ownership consistent with the intent to keep the property are often sufficient and some- times conclusive evidence of acceptance.^ The act or acts relied upon as constituting a receipt and acceptance must establish, the relation between the parties of vendor and vendee.^ The ac- ceptance and receipt contemplated by the statute and as ad- judged by the cases, must always be governed by the circum- stances surrounding the transaction, as to whether there has been such acceptance and receipt.^" Whether the buyer has ac- cepted, depends upon the fact and circumstances of each sep- arate transaction.^^ In the earlier decisions, slight acts were considered as suffi- ciently evidencing acceptance and receipt, but the later cases are much more strict, evincing a determination by the courts to give full effect to the design and spirit as well as the letter o£ the statute.^^ 5. Marsh v. Hyde, 3 Gray (N. Y.) 283; Gray v. Davis, 10 N. (Mass.), 331; Townsend v. Har- i. 285. graves, 118 Mass. 336. 9. Reneick v. Sandford, 120 6. Somers v. McLaughlin, 57 Wis. Mass. 309. 358, 15 N. 442. 10. Galvin v. Kenneth, 21 Oreg. 7. Cusack v. Robinson, 1 Best 184, 27 P. 1039. 6 S. 299; Victor v. Strooek, 15 11. Jones v. Bank, 29 Md. 287, 96 Daly (N. Y.), 329, 5 N. Y. S. 659, Am. Dec. 533. 7 N. Y. S. 959. 12. Clarke v. Marriott, 9 Gill 8. Vincent V. Germond, 11 Johns. (Md.), 335; Jones v. Bank, 29 Md. 287, 96 Am. Dec. 533. 172 Cll. 4: STATUTE OF FRAUDS. §§ 151, 152 • • • - d All the cases agTee that the receipt and acceptance of goods to satisfy the terms of the statute must be proved by clear and unequivocal acts on the part of the buyer.^^ Mere delivery is not sufficient; there must be actual acceptance by the buyer by dealing with the goods as owner." In general terms the rule is : The clear and unequivocal acts, showing an acceptance, or from which an acceptance may be inferred, must relate to some deal- ing with the property itself by the buyer or his authorized agent after the delivery of the whole or part of it.^^ § 152. Designation of carrier by vendee — Delivery of goods. — The mere designation of a carrier by the vendee, and delivery of the goods to, and receipt of them by him as carrier, do not make such acceptance and receipt as the statute requires.-^ The authorities hold, with no conflict, that the acceptance and receipt which the statute requires, may be made by an agent of the buyer empowered for that purpose ; but the weight of authority both in England and America is, that the agency to accept and receive cannot be inferred from the mere fact that the buyer has designated a particular vessel or person as car- rier of goods. In an early case,^ where goods ordered verbally were shipped by the seller by a certain vessel according to the customary dealings between the parties, it was held, the buyer must be considered as having constituted the master of the ves- sel as his agent to accept and receive the goods. In another 13. Davis V. Eastman, 1 Allen bett, 15 Q. B. 428; Chaplin v. Rog- (Mass.), 422; Denny v. Williams, ers, 1 East, 192; Blenkinsop v. 5 Allen (Mass.), 1; Johnson v. Clayton, 7 Taunt. 497. See, also. Cuttle, 105 Mass. 447, 7 Am. Rep. Spear v. Bach, 82 Wis. 192, 52 N. 545. \V. 97. 14. Phillips V. BisloUi, 2 Barn. & 1. Jones v. BanK, 29 Md. 287, 96 Cr. 511. Am. Dec. 533; Frostburg Mining 15. Currie v. Anderson, 2 El. & Co. v. Glass Co., 9 Cush. (Mass.) El. 592; Snow v. Warner, 10 Met. 115; Bushel v. Wheeler, 15 Q. B. (Mass.) 132, 43 Am. Dec. 417; 442; Coombs v. Kailroad Co., 3 Marsh v. Hyde, 3 Gray (Mass.), Hur. & Nor. 510; Cusack v. Rob- 331; Ullmann v. Barnard, 7 Gray inson, 1 Best & S. 299. (Mass.), 554; Ross v. Welch, 11 2. Hart v. Sattley, 3 Camp. 528. Gray (Mass.), 235; Morton v. Tib- 173 §§ 152-154 FREEDOM OF CONTRACT. Ch. 4 case/ it was held, that the same result followed from the goods being delivered to a carrier designated by the buyer for that purpose. The first of these cases has been expressly overruled, and the doctrine asserted by both entirely overthrown by all the subsequent adjudications.^ § 153. Earnest and part payment. — The idea of " earnest," in connection with contracts, was borrowed from the civil law.^ But it seems that the statute of frauds distinguishes between " earnest," and " part payment," either of which, if given by the vendee, will make a verbal contract valid.^ But as used in the statute, it amounts to nothing else than part payment'' " Earnest " is not generally used in modern statutes, as it was suited to times when the people were illiterate, before the introduction of writing.^ § 154. When part payment must be made — In 'New York^ and Wisconsin^ the statute requires that the part payment shall be made " at the time " of the agreement. So when the agree- ment is void for want of " earnest " under these statutes, it camiot be made valid by a mere payment or tender of even the entire purchase-money afterwards. For that purpose there 3. Dawes v. Peck, 8 Term R. 330. Howe v. Smith, 27 Ch. Div. 89, 101, 4. Hanson v. Armitage, 5 Barn. 102. & Aid. 557; Astey v. Emery, 4 6. 29 Car. II, c. 3, sec. 17. Maule & S. 262 ; Acebat v. Levy, 10 7. 2 Bl. Com. 447 ; Pordage v. Bing. 376; Norman v. Phillips, 14 Cole, 1 Saund. 319b; Langfort v. Mees. & Wei. 277; Farina v. Howe, Tiler, 1 Salk. 113; Morton v. Tib- 16 Mees. & Wei. 119; Coombs v. bett, 15 Q. B. 428; Walker v. Nus- Railroad Co., 3 Hurls. & Nor. 510; sey, 16 Mees. & Wei. 302; Howe v. Hunt V. Hecht, 8 Exch. 814; Bushel Hayward, 108 Mass. 54, 11 Am. V. Wheeler, 15 Q. B. 442; Hart v. Rep. 306; Bissell v. Balcom, 39 N. Bush, 1 El., B. & E. 494; Cusack Y. 275. V. Robinson, 1 Best & S. 299 ; Nich- 8. 2 Kent's Com. 495n. Olson V. Bower, 1 El. & El. 172; 1. Jackson v. Tupper, 101 N. Y. Meredith v. Meigh, 2 El. & B. 363; 515; Hallenback v. Cockran, 20 Currie v. Anderson, 2 El. & El. Hun (N. Y.), 416. 591. 2. Kerkhof v. Atlas Paper Co., 5. Guterbock's Bracton, 145; 68 Wis. 674, 32 N. W. 766. 174 Ch. 4 STATUTE OF FRAUDS. §§ 154-156 must be a delivery and acceptance of the property as well ; or there must be a distinct renewal of or assent to the terms of the original agreement so as to make the payment apply to a present and not to a past agreement of sale.^ Ihe New York court holds that one after payment reaffirms or restates the terms of the contract, and that such payment is then made at the time of the contract, and not afterwards.* The clause requiring payment of part of the purchase-price at the time of the contract does not occur in the other statutes of the various States, so it may be made at any time before an action on the contract.^ § 155. What constitutes part payment. — To constitute part payment the money must be actually paid. A verbal stipula- tion to give and to receive something in earnest to bind the bar- gain or in part payment is as much within the statute as is the agreement or contract taken as a whole ; a note or memorandum in relation to give something in earnest to bind the bargain, or in part payment, which is insufficient of itself to take the con- tract out of the statute, is also insufficient to make the contract binding upon either party.® A promise to pay is not sufficient, nor is an accepted tender of payment sufficient.'^ § 156. In what property part payment may be ma'de. — It is competent for parties to designate by their contract how and in what payment may be made. It may be made in property or in service. Whatever the parties agree shall constitute payment will be regarded by the court as payment provided the thing agreed upon is of some value.^ So payment in articles of prop- 3. Bates v. Chesbro, 32 Wis. 594 ; 5. Thompson v. Alger, 12 Met. Kerkhof v. Atlas Paper Co., 68 Wis. (Mass.) 428. 674, 32 N. W. 766; Crosby Hard- 6. Edgerton v. Hodge, 41 Vt. wood Co. V. Trester, 90 Wis. 412, 63 676. N. W. 1057. 7. Artcher v. Zeb, 5 Hill (N. 4. Hunter v. Welsell, 57 N. Y. Y.), 200, 205; Walrath v. Ingles, 375, 84 N. Y. 549, 15 Am. Rep. 64 Barb. (N. Y.) 265. 508. 1. Kuhns v. Gates, 92 Ind. 66; Tilford V. Roberts, 8 Ind. 254. 175 §§ 156-158 FREEDOM OF CONTEACT. Ch. 4: ertj will bind the bargain and prevent the operation of the statute.^ All that is necessary that the payment be made in something of value, even if " it be but a penny." ^ So giving the vendor a credit on an existing debt in favor of the vendee is part payment/ or paying the vendor's debt to a third party is sufficient.^ ARTICLE IX. Eepkesentations as to Credit. Section 157. Statutory Provisions. 158. When the Statute Applies. 159. Sufficiency of Writing. 160. Parol Evidence. § 157. Statutory provisions. — The istatute generally provides that no action shall be brought to charge one upon the represen- tation as to the credit or trade of another person, unless such representation is in writing and signed by the person to be charged. The various statutes are substantially the same. This statute is intended to reach cases where the plaintiff has dealt with and given credit to the person favorably mentioned, and done so on the faith on the assurances. It does not apply to conspiracies or frauds where representations are made to enable the party making the representation to profit by it.'^ § 158. When the statute applies. — Oral representation as to the credit or ability of another person must be in writing in order to be binding on the party making the representation. A 2. Sharp v. Carroll, 66 Wis. 62, Artcher v. Zeh, 5 Hill (N. Y.), 200. 27 N. W. 832; Dow v. Warthen, 4. Norwegian* Plow Co. v. Haw- 37 Vt. 108; Bach v. Owen, 5 Term thorn, 71 Wis. 529, 37 N. W. 825. K. 409; Phillips v. Ocmulgee Mills, 5. Catterill v. Stevens, 10 Wis. 55 Ga. 633; Hunter v. Wetsell, 84 366. N. Y. 549, 38 Am. Rep. 544; Combs 1. Hess v. Culver, 77 Mich. 598, V. Bateman, 10 Barb. (N. Y.) 573. 43 N. W. 994, 6 L. R. A. 498 and 3. Shep. Touch. 224. See, also, note, 18 Am. St. Rep. 421; Clark v. Langfort v. Tiler, 1 Salk. 113; Hurd, 79 Mich. 130, 44 N. W. 343. 1Y6 Ch. 4 STATUTE OF FRAUDS. §§ 158, 159 representation bj an officer of a corporation with reference to its financial standing or means, is made with reference to the credit or ability of another person, and to support an action must be in writing;^ oral statements of an officer of a corpora- tion that it owns certain specific property, if made concerning its credit, ability, or trade, are within the statute.^ And the representation by one that he is the owner of certain corporate stock, and that the corporation is paying large dividends, which representations were made for his own benefit to induce another to purchase his stock, are not actionable.^ This statute applies to cases where the representations are made for the purpose of obtaining a credit for a person in relation to whom the words are spoken.* And it is immaterial that the party making the representation lias an additional purpose of obtaining an in- direct benefit to himself from the transaction.^ And a case is not severed from the operation of the statute by the fact that the defendant also, at the same time misrepresented his own financial standing, and made certain personal promises that he has not kept.® § 159. Sufficiency of writing. — The writing must be clear and explicit without ambiguous phrases.'^ That a representa- tion has been made in writing somewhere, and at some time to some person by a person sought to be charged, is not sufficient. It must be made to the person seeking to charge the defendant.* The writing must be direct and clear as to whom is to be bound. Thus, where a notice is signed by defendants as directors, no 1. Kimball v. Comstock, 14 Gray 5. Mann v. Blanchard, 2 Allen (Mass.), 508; Wells v. Prince, 15 (Mass.), 386; Brown v. Kimball Gray (Mass.), 562; Mann v. Blan- Co., 84 Me. 280, 24 A. 1007. chard, 2 Allen (Mass.), 386; Mc- 6. Brown v. Kimball Co., 84 Me. Kinney v. Whiting, 8 Allen 280, 24 A. 1007. See 34 Central L. (Mass.), 207. Jour. 115. 2. Hunnewell v. Duxbury, 157 7. Russell v. Clarke, 7 Craneh Mass. 1, 31 N. E. 700. (U. S.), 69. 3. Hubard v. Long, 105 Mich. 8. Grant v. Naylor, 4 Craneh (U. 442, 63 N. W. 644. S.),224. 4. Hunter v. Randall, 62 Me. 423, 16 Am. Rep. 490. 177 §§ 159, 160 FEEEDOM OF CONTRACT. Oh. 4 recovery can be had from them individually even if the notice was suflScientlj represented in writing.^ § i6o. Parol evidence. — Such representation in writing can- not be aided bj evidence of additional verbal representations.^ AVhere the statute requires a writing, the writing not under seal is the evidence of the agreement and cannot be varied by verbal additions.^ The parties have reduced their meaning to ^VTiting under the statute and cannot adduce evidence in contradiction or alteration of it. The contract binds them, and the writing is conclusive.^ 9. First Nat. Bank v. Sowles, 46 768; Compare Grant v. Nayor, 4 Fed. Rep. 731. Cranch (U. S.), 224. 1. First Nat. JBank v. Sowles, 46 a. Wake v. Harrop, 6 Hurl. & N, Fed. Rep. 731. '/68. 2. ¥7akp V. Harrop. 6 Hurl. & N. 1T8 PA.RT II. CONTEACTS IN VIOLATION OF LAW. (179) ]Pi^RT II. CHAPTER V. Agreements in Violation of the Common li&vr. AKTICLE I. Illegal Contracts. Section 161. Illegal Contracts Cannot be Enforced. 162. Agreement to Defraud Others — Bucket Shops. 163. Agreement to Buy Shares at a Fictitious Premium. 164. Libel. 165. Auction Sales — By |Bidding. 166. Auction Sales — Englisli Doctrine. 167. Stipulation not to Bid. 168. By Bidding— When Legal. 169. The Purchase of Property on Joint Account. § i6i. Illegal contracts cannot be enforced. — Ex turpi causa non oritur actio — no action arises out o£ an immoral considera- tion. This maxim is founded in good sense, and expresses a clear and well-recognized principle, which is not confined to in- dictments. No court will enforce an illegal contract or allow itself to be made the instrument of enforcing obligations al- leged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.^ If the plaintiff cannot maintain his cause of 1. Holman v. Johnson, Cowp. 343. See, also, Pearce v. Brooks, L. R. 1 Exch. 213. 181 §§ 161, 162 CONTRACTS IN VIOLATION OF LAW. Ch. 5 action without showing, as a part of such cause of action, that he has been guilty of illegality, then the court will not assist him in his cause of action, where the illegality is pleaded,^ or where it is not pleaded, but the fraud is apparent.^ § 162. Agreement to defraud others — Bucket shops. — If two or more persons agree to cheat and defraud others by means of deceit and fraud, each is indictable for a criminal conspiracy at common law. Thus, it is a criminal conspiracy for two or more to agree by false rumors to endeavor to raise the price of the public funds on a particular day.* And so an agreement by two or more to cheat and defraud by means of false pretenses those who might buy shares in a company is an indictable of- fense.^ When the plaintiff cannot present his case to a jury without necessarily disclosing the unlawful purpose, he cannot sustain his action because of its illegality.^ This principle of law applies especially to bucket shops to be found in all large cities. A bucket shop is a brokerage office where orders are never executed and the funds of customers are fraudulently appropriated. A bucket shop generally has an extensive suite of rooms fitted up with all the paraphernalia of a stock exchange house. Operators appear to be receiving dis- patches over private wires, and many clerks are busy posting quotations on the bulletin boards. But the private wires do not go outside the building, but lead only to a basement room where dispatches are sent and the fraud directed. AJ.1 the business is done on a one or two point margin, no customer being allowed to put up more than five points. So, if persons buy stock on a one-point margin the manager of the office gives the signal for a fictitious quotation of one 2. Taylor v. Chester, L. R. 4 Q. D. 730, 2 Q. B. D. 48. See, also, B. 309. Reg. v. Hudson, Bell, C. C. 263 j 3. Begbie v. Phosphate Sewage Allen v. Rescons, 2 Lev. 174. Co., L. R. 10 Q. B. '±>)1. 6. Simpson v. Bloss, 7 Taunt. 4. Rex. V. Berenger, 3 Maule & S. 246 ; Jones v. Yates, 9 Barn. & Cr. 67. 501 ; Fivaz v. Nichalls, 2 C. B. 501. 5. Reg. V. Aspinall, 1 Q. B. 182 Ch. 5 AGItEEMENTS IN VIOLATION OF LAW. §§ 162, 163 point loAver, which wipes out the contingent and the oflBce buck- ets the proceeds, which sometimes amount to $10,000 or $15,000 in a single stock. In cases where fictitious quotations are not possible, the more wealthy bucket shop men club together and depress values on the regular stock exchange to a point where their customers' margins become exhausted. In this way the bucket shop al- ways wins, except in a continuously rising stock market, when the concerns are sometimes forced to the wall. The public as a rule only buys for an advance and never sells short. All such transactions are fraudulent and void. § 163. Agreement to buy shares at a fictitious premium. — An agreement between two or more to purchase shares in a company in order to induce persons who might thereafter pur- chase shares in such company to believe, contrary to fact, that there was a bona fide market for its shares, and that the shares were at a real premium, is an illegal transaction and may be made the subject of an indictment for conspiracy, and no action can be maintained in respect of such agreement or purchase of shares.^ And so there can be an indictment for conspiracy by false rumors to raise the price of government funds with intent to injure those who should purchase. Because a public mischief is stated as the object of this conspiracy, the conspiracy is by false rumors to raise the price of the public funds and securities, and the crime lies in the fact of conspiracy and combination to effect that purpose, and will be complete, although it be not pursued to its consequences, or the parties have not been able to carry it into effect.^ Such contract strikes at the price of a vendible commodity in the market, and if it gives it a fictitious price, by means of false rumors, it is a fraud leveled against tie public, for it is against all such as may possibly have anything to do with the fimds on that particular day. It is a perpetration 1. Scott V. Brown (1892), 2 Q. 2. Rex v. Berenger, 3 Maule & B. 724. S. 67. 183 §§ 163, 164 CONTRACTS IN VIOLATION OF LAW. Ch. 5 of a fraud on the public.^ Whatever contract is contrary to positive law cannot be enforced.* § 164. Libel. — <^\n agreement contemplating a publication of a libel is illegal. Hence, no action will lie to recover compen- sation for printing and publishing a libelous book, or for breach of such contract, or any agreement to indemnify against liabil- ity for publishing it.^ This is so because the whole contract is tainted with illegality, and neither party is bound to perform.® To render the contract unlawful, it should appear that there was an intention on the part of the author and publisher to write and publish libelous matter, or that the author proposed, with the knowledge and acquiescence of the publisher, to write libelous matter, or that the contract on its face provided for or promoted an illegal act ; if this is not the nature of the contract then it is valid.^ If a publisher denounces a fraud, it is no libel. Thus, where a healer endeavors to cure an absent patient by telepathic methods, a newspaper has a right to warn the public of such practice as a fraud, and cannot be held for damages.^ 3. Materne v. Horwitz, 101 N. Y. ruff v. Wentworth, 133 Mass. 309; 469; Jerome v. Bigelow, 66 111. 452, Bishop v. Palmer, 146 Mass. 469, 16 Am. Rep. 597. 16 N. E. 299, 4 Am. St. Rep. 339; 4. Woostock Iron Co. v. Lound v. Grimwade, 39 Ch. D. 605, Extension Co., 129 U. S. 643, 9 S. 613. Ct. 402; McCall v. Capehart, 20 7. Fletcher v. Harcat, Hutton, Ala. 521; Gray v. Reynolds, 65 55; Battersey's Case, Winch, 48; Iowa, 461, 21 N. W. 777, 54 Am. Betts v. Gibbins, 2 Ad. & El. 57; Rep. 16; Thomas v. Caulkett, 57 Jewett Pub. Co. v. Butler, 159 Mich. 392, 24 N. W. 154. Mass. 517, 34 N. E. 108, 22 L. R. A. 5. bhackell v. Rosier, 2 Bing. 253; Adamson v. Jarvis, 4 Bing. N. C. 634; Colburn v. Patmore, 1 66; Waugh v. Morris, L. R. 8, Q. Cromp. M. & R. 73; Gale v. Leckie, B. 202; Pearce v. Brooks, L. R. 1 2 Stack. 107 ; Clay V. Yates, 1 Hurl. Exch. 213; Cannan v. Bryce, 3 & N. 73; Arnold v. CliflFord, 2 Sum- Barn. & Aid. 179; Graves v. John- ner, C. C. 238. See, also, Brad- son, 156 Mass. 211, 30 N. E. 818, laugh V. Newdegate, 11 Q. B. D. 1, 15 L. R. A. 834 and note, 32 Am. 12; Babcock v. Terry, 97 Mass. 482. St. Rep. 446 and note. 6. Robinson v. Green, 3 Met. 8. Weltmer v. Bishop, 171 Mo. (Mass.) 159, 161; Perkins v. Cum- 110, 71 S. W. 167. mings, 2 Gray (Mass.), 258; Wood- 184 Ch. 5 AGREEMENTS IN VIOLATION OF LAW. §§ 165, 166 § 165. Auction sales — By-bidding. — There is some diversity in the decisions, as to the circumstances under which by-bidding will invalidate a sale at auction. But when the sale is adver- tised or stated to be without reserve, the secret employment by the seller of puffers or by-bidders renders the sale voidable by the buyer.^ The offer at auction without reserve is an implied guaranty that the property is to be sold to the highest bidder, and each bidder has the right to assume that all previous bids are genuine. If the buyer succeeds in proving his allegation of the seller's fraud by employing by-bidders, the seller cannot maintain his action against him, and he is entitled to recover back the deposit paid to the auctioneer.' Any agreement entered into for the purpose of preventing competition at an auction sale is unlawful and void.' If two or more persons in actual competition intend bidding for an acticle, agree that one shall abstain from bidding and the profits shall be divided, the courts will not enforce such a bargain.* § 166. Auction sales — English doctrine. —In England the doctrine is strongly expressed that all secret arrangements calcu- lated to mislead and deceive purchasers or vendors are invalid, as the strict observance of good faith and fair dealing is es- 1. Phippen v. Stickney, 3 Met. Minn v. Phipps, 3 Sneed (Tenn. ), 384; Towle v. Leavitt, 23 N. H. 19G; Small v. Jones, 6 Watts & S. 360, 55 Am. Dec. 195; Veazie v. (Pa.) 128, 40 Am. Dec. 545; Jones Williams, 8 How. (U. S.) 134; v. Fulcord, 5 Tex. 512, 55 Am. Dec. Thornett v. Haines, 15 Mees. & 743; Barton v. Benson, 126 Pa. Wei. 367; Eay v. Mackin, 100 111. St. 431, 17 A. 642, 12 Am. St. Rep. 246; Gardner, v. Morse, 25 Me. 140; 883. Wooten V. Hinkle, 20 Mo. 290. 4. Lloyd v. ]\Ialone, 23 111. 43, 2. Thornett v. Haines, 15 Mees. 74 Am. Dec. 179 and note; Doolin & Wei. 367; Curtis v. Aspinwall, v. Ward, 6 Johns. (N. Y.) 194; Jen- 114 Mass. 187, 19 Am. Kep. 332. kins v. Frink, 30 Cal. 586, 89 Am. 3. Goldman v. Oppenheim, 118 Dec. 134; Gibbs v. Smith, 115 Ind. 95, 20 N. E. 635; Atcheson v. Mass. 592; Gardiner v. Morse, 25 Mallon, 43 N. Y. 147, 3 Am. Rep. Me. 140; Baggott v. Sawyer, 25 S. 678; Bresbane v. Adams, o N. Y. Car. 405; Wooten v. Hinkle, 20 129; Hunter v. Pfeiflfer, 108 Ind. Mo. 290; Compare Galton v. 197, 9 N. E. 124; Smith v. Green- Emuss, 1 Collyer, 243. lee, 2 Dev. (M. Car.) 729; Mc- 185 §§ 166-168 CONTKACTS IN VIOLATION OF LAW. Ch. 5 sential to the validity of such sales/ Hence, this doctrine ap- plies where the owner of the estate, that was offered for sale at auction, employed puffers to bid at the auction ; as this was fraud upon the bidders, and was sufficient to avoid the sale.^ But this doctrine was questioned by some of the English de- cisions.^ But the more recent cases countenance the early doc- trine of the English courts.'* § 167. Stipulation not to bid. — In the American courts, there is some diversity of views upon this subject. It is held that contracts by which one party stipulates not to bid against another at an auction sale, or an agreement by one to bid for the benefit of himself and the other party, cannot be enforced in a court of law. The doctrine is based upon the ground that such a contract is nudum pactum, being without consideration, and that it is against public policy and fraud upon the vendor.^ § 168. By-bidding — When legal. — It seems that the em- ployment of a bidder by the owner will or will not be fraud, according to the circumstances of the case, as they tend to show innocence of intention or fraudulent design.® So by-bidding may be allowed in auction sales, if it be bona fide, and for the sole purpose of preventing a sacrifice of the property offered for sale.^ While the general doctrine is that a sale may be avoided when made to one in behalf of an association of bidders 1. Beckwell v. Christie, Cowp. 5. Jones v. Caswell, 3 Johns. 395. See, also, Crowder v. Austin, Cas. (ISJ. y.) 29; Doolin v. Ward, 6 2 Car. & P. 208; Wheeler v. Col- Johns. (^. Y.) 194; Wilbur v. How, lier, 1 Mood. & Malk. 123; Fuller 8 Johns. (N. Y.) 444; Thompson V. Abrahams, 3 Brod. & Bing. 116, v. Davies, 13 Johns (N. Y.) 112; 6 Moore, 316. Piatt v. Oliver, 1 McLean, C. C. 2. Howard v. Castle, 6 Term R. 295; Gulick v. Ward, 5 Halst. (N. 642. J.) 87, 18 Am. Dec. 389. 3. Connelly v. Parsons, 3 Ves. 6. 2 Kent's Com. 529. 625; Smith v. Clark, 12 Ves. 477. 7. Wolfe v. Luyster, 1 Hall (N. 4. Crowder v. Austin, 2 Car. & Y.), 146; Jenkins v. Hogg, 2 Cost. P. 208; Wheeler v. Collier, 1 Mood. (S. Car.) 821. & Malk. 123; Fuller v. Abrahams, 3 Brod. & Bing. 116, 6 Moore, 316. 186 Ob. 5 AGREEMENTS IN VIOI^VTION OF LAW. §§ 108-170 designed to stifle competition, yet this rule does not apply to an association of bidders formed for bonest and proper purposes.' § 169. The purchase of property on joint account. — The mere fact that an arrangement is entered into by parties having an interest in property' about to be sold at public judicial or other sale with honest motives for the purpose of preserving their interests is not invalid, though it may incidentally restrict competition upon such sale.^ Parties may unite to purchase property on their joint account when the combination is honest and bona fide.' If the arrangement is entered into for no fraudulent purpose, but for mutual convenience of the parties, as with a view of enabling them to become purchasers, each be- ing desirous of purchasing a part of the property offered for sale, and not an entire lot, or is induced by any other reasonable and honest purpose, such agreement will be valid and binding.^ ARTICLE 11. Insolvency. Section 170. Assignment for Benefit of Creditors. 171. Composition Agreement — Insolvency. 172. Secret Preferences. § 170. Assignment for benefit of creditors. — A debtor may make an assignment for the benefit of his creditors where the statute does not provide for such proceedings. The solvency of 8. Smith V. Greenlee, 2 Dev. (Jf. 2. Phippen v. Stickney, 3 Met. Car.) 12G, 18 Am. Dec. 564; Phip- (Mass.) 388; Garrett v. Moss, 20 pen V. Stickney, 3 Met. (Mass.) J 11. 549. 384. 3. Smull v. Jones, 1 Watts & S. 1. Marie v. Garrison, 83 N. Y. (Pa.) 128; Gibbs v. Smith. 115 14; Kearney v. Taylor, 15 How. Mass. 592; Jenkins v. Frink, 30 (U. S.) 496; Wicker v. Hoppoch, Cal. 586, 89 Am. Dec. 134; Switzer 6 Wall. (U. S.) 529; Smith v. Ul- v. Sidles, 3 Gil. (III.) 529; Gar- man, 58 Md. 183, 42 Am. Rep. 329; rett v. Moss. 20 111. 549, 44 Am. Gibbs V. Smith, 115 Mass. 592. Dec. 723. 187 §§ 170, 171 CONTRACTS IN VIOLATION OF LAW, Ch. 5 a debtor, in his own estimation or in fact, does not invalidate his assignment of all or any portion of his property for the pay- ment of his debts. But an intention to hinder or delay his creditors is fraudulent and avoids the assignment/ Nor can insolvent debtor exercise his right of giving preferences among creditors by assignment, so as to secure himself the future con- trol of the assigned property or of its proceeds.^ Because the reservation by the assignor of any benefit to himself, in ad- dition to the payment of his debts, is a fraud upon his creditors, which will make the instrument void,^ And so giving prefer- ence to certain creditors, upon condition that they should ac- cept the sums received under the assignment in satisfaction of their entire debts, is the reservation of such a benefit, and makes the assignment fraudulent.* The fraudulent character of an assignment does not depend on the assignor's opinion that what he does is not fraud in law.* § 171. Composition agreement — Insolvency. — A composi- tion agreement is an exception to the rule that payment of part of a liquidated debt is not satisfaction for the whole. It is excepted because there is a consideration to each creditor for his agreement to accept less than his claim in full payment. The composition is an agreement, not merely between the debtor and each creditor, but also be- tween the several creditors. The engagement of each creditor to accept less than his claim is the consideration to each of the others for his engagement. So, any separate agreement by 1. Ogden V. Peters, 21 N. Y. 23, Packer, 12 N. J. Eq. 214, 72 Am. 78 Am. Dec. 122; Place v. Lang- Dec. 388. worthy, 13 Wis. 629, 80 Am. Dec. 4. Grover v. Wakeman, 11 Wend. 758. (Is. Y.) 190, 25 Am. Dec. 624 and 2. Haydock v. Coope, 53 N. Y. note; Wakeman v. Grover, 4 Paige 68. (N. Y.) 23. 3. Blacklock v. Dobie, 1 C. P. 5. Hubbard v. McNaughton, 43 Div. 265; Grover v. Wakeman, 11 Mich. 220, 5 N. 293, 38 Am. Rep. Wend. (N. Y.) 190, 25 Am. Dec. 176. See, also, Price v. Haynes, 624 and note; Young v. Hail, 6 37 Mich. 487; Smith v. Mitchell, Lea (Tenn.) 175; Knight v. 12 Mich. 180. 188 Ch. 5 AGREEMENTS IN VIOLATION OF LAW, §§ 171, 172 which one of the creditors secures to himself benefits not con- ferred on the others, and which agreement is not disclosed to them before they sign the composition agreement, is a fraud upon them. Such separate agreement is void as to all the parties/ There is a class of cases which holds that even where the secret agreement is fully performed by payment of the money, or transfer of the property stipulated, the debtor may, upon the theory of coercion exercised over him by the creditor, recover it back from the creditor.^ The creditor who has entered into the secret agreement can take no advantage from it, but he will lose the benefit of the composition, which becomes void.^ But courts of great influence hold that the secret agreement only is void and that the composition agreement is valid,"* but they are in the minority. § 172. Secret preferences. — As has been stated a composition agreement is an agreement, as well between the creditors them- selves as between the creditors and their debtor, by which each agrees with the others to receive the sum fixed by the agree- ment in satisfaction of his debt ; and the rule that a secret pref- 1. Howden v. Haigh, 11 Adol. & 2. Atkinson v. Denby, 7 Hurl. & E. 1033; Atkinson v. Denby, 7 N. 933; Smith v. Cuff, 6 Moore & Hurl. & N. 933; Case v. Gerrish, S. 160; Knight v. Hunt, 5 Bing. 15 Pick. (Mass.) 49; Ramsdell v. 429; Darlinger v. Earle, 82 N. Y. Edgarton, 8 Met. (Mass.) 227, 41 393. Am. Dec. 503; Harvey v. Hunt, 3. Clark v VVliite, 12 Pet. (U. 119 Mass. 279; Fay v. Fay, 121 S.) 178; MuUalieu v. Hodgson, 16 Mass. 561; Wiggin v. Bush, 12 Q. B. G89; Cobleigh v. Pierce, 32 Johns. (N. Y.) 305; Lawrence v. Vt. 788; O'Shea v. Lead Co., 42 Clark, 36 N. Y. 128; Continental Mo. 397, 97 Am. Dec. 332; Kull- Bank, v. McGeoch, 92 Wis. 286, 66 man v. Greenebaum, 92 Cal. 403, 28 N. W. 606; Newell v. Higgins, 55 P. 674, 27 Am. St. Rep. 150; Hef- Minn. 82, 56 N. W. 577; Patter- ter v. Cahn, 73 111. 296; Huckins son V. Boehm, 4 Pa. St. 507; Pow- v. Hunt, 138 Mass. 366. ers' Dry Goods Co. v. Harlin, 68 4. Hanover Bank v. Blake, 142 Minn. 193, 71 N. W. 16, 64 Am. N. Y. 404, 37 N. E. 519, 27 L. R. A. St. Rep. 460; Lee v. Sellens, 81 Pa. 33 and note, 40 Am. St. Rep. 607; St. 473; Brown v. Nealey, 161 Cheveront v. Textor, 53 ild. 295. Mass. 1, 36 N. E. 464. 189 § 172 CONTEACTS IN VIOLATION OF LAW. Ch. 5 erence of one or more creditors over others invalidates the com- position agreement does not rest solely upon the participation of the debtor in the fraud and the diminution of his actual assets ; but such preference, though made by another than the debtor, violates the principle of equity and the mutual confidence as between creditors upon which the agreement is based.^ If the debtor knows of such secret payments by his friends, he is not innocent of the imposition practiced upon the other creditors.^ Because if the composition provides for a pro rata payment to all the creditors, a secret agreement, by which a friend of the debtor undertakes to pay to one of the creditors more than his pro rata share, to induce him to unite in the com- position, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor.' The creditor cannot sue for the stipulated composition if accompanied by a secret agTeement by the debtor to give an ad- ditional benefit, even though the additional benefit was not after- wards available ; the whole is an entire agreement, and the fraud vitiates the whole.* The principle being, not that a party is not to be permitted to recover more than others, but that every secret bargain is a fraud on the creditors and is void when it is made, and, being executory, cannot be enforced even against a fraudulent party ; and Avhere a part is fraudulent, the bargain, being an entire thing, is altogether fraudulent and void.^ The debtor is a particeps criminis, and, as well as the credi- tor, a party to a fraud on the creditors, and he cannot be allowed to enforce this part of the same fraudulent executory agree- ment.^ There are cases where a particeps criminis has been al- 1. O'Shea v. Lead Co., 42 Mo. 3. Solinger v. Earle, 82 N. Y. 397, 97 Am. Dec. 332; Bank v. 393. Hoeber, 88 Mo. 37, 57 Am. Rep. 359 4. Howden v. Haigh, 11 Ad. & and note; O'Brien v. Greenebaum, El. 1033; Hanover National Bank 92 Cal. 104, 28 P. 214; Kullman v. v. Blake, 142 N. Y. 404, 37 N. E. Greenebaum, 92 Cal. 403, 28 P. 674, 519, 19 L. R. A. 33 and note, 40 27 Am. St. Rep. 150. Am. St. Rep. 67. 2. Kullman v. Greenebaum, 92 5. Higgins v. Pitt, 4 Exch. 372. Cal. 403, 28 P. 674, 27 Am. St. Rep. G. Higgins v. Pitt, 4 Exch. 312. 150. 190 Oh. 5 AGREEMENTS IN VIOLATION OF I^AW. § 172 lowed to recover back money paid as the consideration for an illegal act, where, though guilty, he is not in pari delicto; as a bankrupt who has paid money to obtain his certificate, or a borrower, the premium of usury.^ In such cases, the law con- siders that he is oppressed, and advantage taken of his situation, and that he is entitled to be restored to the benefit he has lost by the oppressive act of his creditor. 7. Smith V. Bromley, 2 Doug. 696u. 191 CHAPTER VI. Agreements in Violation of Statutes. ARTICLE I. Violations in General. Section 173. Contracts Made in Violation of Statute — Scalping Contracts. 174. Peonage Contracts. 175. Prohibition and Penalty. 176. Malum Prohibitum and Malum, in 8e. 177. Penalty Imposed for Administrative Purposes. 178. Acts Impliedly Prohibited. 179. What Cannot be Done by Direct Means Cannot be done by Indirect Action. § 173. Contracts made in violation of statute — Scalping tickets. — The general rule of law is, that a contract made in v^iolation of a statute is void ; and that when a plaintiff cannot establish his cause of action without relying upon an illegal con- tract, he cannot recover.^ There can be no civil right where there can be no legal remedy ; and there can be no legal remedy for that which is itself illegal.^ There are some exceptions to this general rule, and these exceptions are based upon a sup- posed intent of the legislature. The true test is that while as a 1. Winchester Electric Light Co. N. E. 598; Kennedy v. Cochrane, 65 V. Veal, 143 Ind. 681, 42 N. E. 914; Me. 594; Bank v. Owens, 2 Pet. (U. Penn v. Bornman, 102 111. 523; S.) 527, 539; Ryan v. Potwin, 62 Wright V. Gardner, 98 Ky. 454, 33 111. App. 134; Pangburn v. West- S. W. 622, 35 S. W. 116; Alexander lake, 36 Iowa, 546, 549; Harris v. V. O'Donnoll, 12 Kan. 608; Leonard Runnels, 12 How. (TJ. S.) 79, 84; V. Pool, 114 N. Y. 371, 21 N. E. 707, Case v. Johnson, 91 Ind. 477. 4 L. R. A. 728, 11 Am. Rep. 667; 2. Bank v. Owens, 2 Pet. (U. S.) Gunter v. Leckey, 30 Ala. 591; 527. State V. Wilson, 113 Ind. 501, 15 192 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 173, 174 general rule, a penalty implies a prohibition, yet the courts will always look to the language of the statute, the subject-matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment ; and if, from all these, it is manifest that it was not intended to imply a prohibition or to render the prohibited act void, the courts will so hold, and construe the statute accordingly.^ So, statutes prohibiting the sale of railroad and steamboat tickets except by lawfully authorized agents are constitutional.* It is held, how- ever, in New York, that such statutes are not constitutional." In the New York case the Appellate Division held that the act was constitutional. On appeal the judgment was reversed by a divided court. The court held that a duly constituted agent of one railroad company had authority to sell tickets of other car- riers. It may be that the various acts of the States contain no provision susceptible of the construction upon which the ma- jority judges of the Court of Appeals have based the conclu- sions. § 174. Peonage contracts. — Peonage means a system of com- pulsory labor or service in discharge of contracts, debts, or ob- ligations. The law of Congress of 1867 is violated by such compulsion. This act was aimed more especially at the condi- tion of peonage then existing in the territory of New Mexico, which had derived this institution from Mexico and through 3. Pangburn v. Westlake, 36 Tex. Cr. App. 631, 51 S. W. 1126, 62 Iowa, 546; Miller v. Ammon, 145 S. W. 419, 53 L. R. A. 349, 96 Am. U. S. 421, 12 S. Ct. 884; Cope v. St. Rep. 821 and note; Common- Rowlands, 2 Mees. & Wei. 149; wealth v. Wilson, 14 Phil. 384; Aiken v. Blaisdell, 41 Vt. 655; Les- Railroad Co. v. McConnell (Tenn.), ter V. Howard, 33 Md. 558, 3 Am. 82 Fed. Rep. 65; State v. Bera- Rep. 211; Buckman v. Bergholtz, heim, 19 Mont. 512, 49 P. 441; Com- 37 N. J. L. 437; Barton v.Muir, L. monwealth v. Keary, 198 Pa. St. R. 6 P. C. 134. 500, 48 A. 472. These statutes are 4. Fay v. State, 63 Ind. 552; known as "Ticket Scalping Stat- State V. Corbet, 57 Minn. 345, 59 utes." N. W. 317, 24 L. R. A. 498, 30 Am. 5. People v. Warden, 157 N. Y. St. Rep. 234; Burdick v. People, 149 116, 51 N. E. 1006, 43 L. R. A. 264, 111. 600, 36 N. E. 952, 24 L. R. A. 68 Am. St. Rep. 763. 152 and note; Jannin v. State, 42 193 §§ 174, 175 CONTRACTS IN VIOLATION OF LAW. Oh. 6 Mexieo from Spain. The terms of this act reaches any system of this kind in the United States. This act is constitutional by virtue of the thirteenth amendment ; the statute applies to any case of illegal sale, holding in imprisonment, and labor of citi- zens to work out a debt or contract.^ § 175. Prohibition and penalty. — Before the general rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, the statute must be ex- amined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes un- lawful, and the same may be implied from a penalty without a prohibition ; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from Avhich the contrary can be properly inferred, a contract in contravention of it is void.^ If a statute prohibits a contract in the sense of making it un- lawful for any one to enter into it, such a contract, if made, is wholly void, and connot be enforced. Whether a statute for- bidding an act to be done, or enjoining the mode of doing it, is prohibitory, so as to make any contract in violation of it ab- solutely void, or whether it is directory in its purpose, and does not necessarily invalidate the contract, is a difficult question. There is a large class of cases, both in this country and in England, in which statutes have enacted, in substance, that goods should only be sold in certain measures, or in a certain manner, or after being inspected and branded by public officers ; and contracts of sale which do not meet the requirements of such statutes are void, as the intention of the legislature to make 6. The Peonage Cases, 123 Fed. age Repugnant to the Federal Con- Rep. 671. See, The Peonage Cases, stitution, 57 Cent. L. Jour. 441. 4 Columbia L. Review, 279; What 1. Harris v. Runnels, 12 How. Constitutes a Condition of Peon- (U. S.) 79; Miller v. Ammon, 145 U. S. 421, 12 S. Ct. 884. 194 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. § 175 them void is inferred." It lias been held that contracts made in violation of the provisions of statutes are not void, upon the ground that the statutes are intended merely to be directory to the officers or persons to whom they are addressed, and not to the conditions precedent to the validity of contracts made in reference to them. Thus, the revised statutes of the United States respecting national banks provide that a bank shall not lend to any one person, corporation, or firm a sum exceeding one-tenth part of the capital stock actually paid in, and that national banks shall not take real estate as collateral security except for debts previously contracted ; and it is held that con- tracts made in contravention of the statute are not void.^ And so where the officers of a savings bank invest its funds in a man- ner forbidden by statute, such illegal action of the officers does not impair the validity of the instrument.* Each statute must be judged as a whole, regard being had not only to its language, but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purposes of the statute, the inference is that it was intended to be directory, and not prohibitory of the contract.^ But the statute is void if it vio- lates the constitutional guaranty of liberty. Thus, a statute forbidding an employer to discharge an employe because he is a member of a labor organization, is void.® 2. Miller v. Post, 1 Allen v. Whitney, 103 U. S. 99; Reynolds (Mass.), 434; Sawyer v. Smith, 109 v. Bank, 112 U. S. 405, 5 S. Ct. Mass. 220; Kleckley v. Leyden, 63 213. Ga. 215; McConnell v. Kitchens, 4. Holdeu v. Upton, 134 Mass. 20 S. Car. 430, 47 Am. Rep. 845; 177. Doe V. Burnham, 31 N. H. 426; 5. Cope v. Rowlands, 2 Mees. & Durgin v. Dyer, 68 Me. 143; Hal- W. 149; Smith v. Mawhood, 12 lett V. Novion, 14 Johns. (X. Y.) Mees. & Wei. 452; Taylor v. Gas 273; Bowditch v. Ins. Co., 141 and Coke Co., 10 Exch. 293; Euck- Mass. 292, 4 N. E. 798, 55 Am. man v. Bergholz, 37 N. J. L. 437. Rep. 474. 6. Zilmer v. Kreutzberg, 114 3. Gold Mining Co. v. Banl^, 96 Wis. 530, 90 N. W. 1098, 58 L. R. U. S. 640; National Bank v. Mat- A. 748. 91 Am. St. Rep. 934. thews, 98 U. S. 621; National Bank 195 § 176 CONTRACTS IN VIOLATION OF LAW. Ch. 6 § 176. Malum prohibitum and malum in se. — It is asserted by some that there is a distinction between malum prohibitum, and malum in se — between things intrinsically and morally wrong, and things which are made so merely by legislation. That is, tlie inference is this: When an act is merely malum prohibitum.^ it may conscientiously be done, provided only the party be willing to incur the penalty; it is optional with the party to do or to refrain from doing the act in question, and the alternative is presented him by the legislature to abstain from the act, or to do it and pay the penalty. But this reason- ing is not correct. So far as regards the effect of a statute upon a matter pro- hibited under a penalty, there is no distinction between mala prohibita and 7nala in se.^ Where the act is prohibited by the statute, the contract is void at its inception, and it is immaterial whether the act of the party was malum in se or merely malum prohibitum.^ The distinction in some of the old cases between malum in se and malum prohibituyn has long since been repudi- ated both in this country and in England.^ Where a contract is malum: in se, thus involving moral turpitude or violating some principle of public policy, the courts will in no case in- terfere to relieve either party from any of its consequences.* But where the contract is merely malum prohibitum, the court will interfere if the guilt rests chiefly upon one, although both have participated in the illegal act, as equity requires it to the more innocent party.^ The question to settle is whether the parties are in pari delicto as well as particeps criminis; if so the courts will give no relief;^ if the parties are only in pari delicto the more innocent may be relieved ; but neither will be relieved where they are also particeps criminis? I.Lewis V. Welch, 14 N. H. 4. Bank v. Owens, 2 Pet. (U. S.) 294. 539; White v. Buss, 3 Cush. 2. Pucket V. Alexander, 102 N. (Mass) 448. Car. 95, 8 S. E. 767 ; Penn v. Born- 5. Bensley v. Bigold, 5 Barn. & man, 102 111. 523; White v. Buss, Aid. 335. 3 Cush. (Mass.) 448. 6. Tracy v. Talmage, 14 N. Y. 3. Camion v. Brice, 3 Barn. & 102; Irwin v. Curie, 171 N. Y. 409, AM. 179; Auhert v. Maze, 2 Bos. G4 N. E. 161, 58 L. R. A. 830. &, Pul. 371. 7. Jaques v. Golightly, 2 W. Black, 1073. 196 Ch. C AGKEEMENTS IN VIOLATION OF STATUTE. §§ 177, 178 § 177. Penalty imposed for administrative purposes. — Where the object of the law is merely to protect the revenue, and not to protect the public, the imposition of a penalty will not amount to a prohibition of the contract.^ The iiriposition of the defined penalty shows that the legislature did not intend that the contract should be wholly void, as this would be im- posing an added penalty.^ So the provisions of the internal revenue law^s of the United States, prohibiting persons from carrying on the business of wholesale dealers in merchandise until they pay the special tax therein provided, do not invali- date sales made by persons who fail to comply with the statute, or prevent them from recovering the price of the goods sold.-^" So where a usurious contract is made, a penalty being inflicted for taking usury, the act of making such a contract is illegal, but the contract is not void. § 178. Acts impliedly prohibited.— It is held by some of the cases that whenever a statute imposes a penalty for any act or omission, it impliedly prohibits it. Thus, a contract for the sale of chattels entered into in contravention of the terms and policy of the statute, cannot be enforced ; and it is immaterial whether the sale is expressly prohibited or penalty imposed therefor ; the imposition of a penalty in such case implies a prohibition.^ And it is held that it is not necessary that the act 8. Holman v. Johnson, Cowp. 10. Lamed v. Andrews, 106 Muss. 341; Johnson v. Hudson, 11 East, 435, 8 Am. Rep. 340; Aiken v. 180; Brown v. Duncan, 10 Barn. & Blaisdell, 41 Vt. 655; Bowditch v. Cr. 98; Hodgson v. Temple, 5 Ins. Co., 141 Mass. 292, 4 N. E. 798, Taunt. 181; Wethwell v. Jones, 3 55 Am. Rep. 474. See, also, Man- Barn. & Aid. 221; Earned v. An- dlebaum v. Gregorich, 17 Xev. 87, drews, 106 Mass. 435, 8 Am. Rep. 28 P. 121, 45 Am. Rep. 433; Rather 346; Bailey v. Harris, 12 Q. B. v. Banlv, 92 Pa. St. 393; Johnson 905; Bisbee v. McAllen, • 39 Minn. v. Hulings, 103 Pa. St. 498, 49 143, 39 N. W. 299; Aiken v. Blais- Am. Rep. 131. dell, 41 Vt. 655; Smith v. Maw- 1. Cundell v. Dawson, 4 C. B. hood, 14 Mees. & Wei. 452; Com- 376; Miller v. Post, 1 Allen pare Cope v. Rowlands, 2 Mees. & (Mass.), 434; Libbey v. Downey, W. 149; Territt V. Bartlett, 21 Vt. 5 Allen (Mass.), 299; Durgin v. 184. Dyer, 68 Me. 143. 9. Merrill v. Mclntire, 13 Gray (Mass.), 157. 197 § 178 CONTRACTS IN VIOLATION OF LAW. Cb. 6 should be prohibited in express terms, but that a prohibition may be implied from the imposition of a penalty, as, it is claimed, a penalty implies a prohibition, though there are no prohibitory words in the statute.^ The weight of authority is, that a contract founded on an act prohibited by statute is void, and that it makes no difference whether the prohibition is expressed or is to be implied from the imposition of a penalty. But whether a prohibition is to be implied from the imposition of a penalty is a question of legislative intent, to be ascertained by an examination of the various provisions of the statute in question, and where there are any terms in the statute which indicate that the legislature did not intend to avoid a contract made in contravention of it, such a contract may be enforced.^ And where the statute for- bids a contract, but provides that, if made, it shall not be void, then the courts will enforce it.* The omission of a penalty, or a failure of the penal clause, will not prevent the court from giving effect to an express prohibition;^ therefore, the general rule that a marriage, valid where consummated, is valid every- where, does not apply, where the parties, living in the same State, and subject to an absolute statutory provision against their marriage, on grounds of good morals and public policy, leave the State of their domicil, and enter another where their 2. Pray v. Burbank, 10 N. H. 3. Harris v. Runnels, 12 How. 377; Law V. Hodgson, 11 East, 300; (U. S.) 79; Niemeyer v. Wright, Kleckley v. Leyden, 63 Ga. 21G; 75 Va. 239, 40 Am. Rep. 720; Penn Johnston v. McConnell, 65 Ga. 129; v. Bornman, 102 111. 523; Hunt v. Dillon V. Allen, 46 Iowa, 299, 26 Knickerbocker, 5 Johns. (N. Y.) Am. Rep. 145; Woods v. Arm- 327; Bensley v. Bignold, 5 Barn. & strong, 54 Ala. 150, 25 Am. Rep. Aid. 335; Griffith v. Wells, 3 671 and note; O'Donnell v. Swee- Denio (N. Y.), 226; Siedenbender ney, 5 Ala. 468, 39 Am. Dec. 336; v. Charles, 4 Serg. & R. (Pa.) 150; Hallettv. Novion, 14 Johns. (N.Y.) Lewis v. Welch, 14 N. H. 294; 273; Doe V. Burnham, 31 N. H. 426; Springfield Bank v. Merrick, 14 Cope V. Rowlands, 2 Mees. & Wei. Mass. 322. 149; Bacon v. Lee, 4 Iowa, 490; 4. Lewis v. Bright, 4 El. & Bl. McConnell v. Kitchens, 20 S. Car. 917. 430, 47 Am. Rep. 845; Brown v. 5. Sussex Peerage Case, 11 Clark Duncan, 10 Barn. & Cr. 93. & F. 85, 148, 149. 198 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 178, 179 Marriage is not prohibited, and are there married, for the ex- press purpose of evading the laws of their own State.® § 179. What cannot be done by direct means cannot be done by indirect action. — The Law will not permit the accomplish- ment, by indirect means, of what it prohibits directly.^ l^o contract between parties to do a thing prohibited by law will be enforced by the courts.^ When the restrictive policy of a law alone is in contemplation, it is a universal rule that it is unlaw- ful to contract to do that which it is unlawful to do.^ 6. Appeal of Morehouse — StuU's Estate, 183 Pa. St. 625, 39 A. 16, 39 L. R. A. 539, 63 Am. St. Rep. 76; Brook v. Brook, H. L. Cas. 212; Williams v. Gates, 5 Ired. L. (N. Car.) 535; Penngar v. State, 87 Tenn. 244, 10 S. W. 305, '2 L. R. A. 703 and note, 10 Am. St. Rep. 648; Marshall v. Marshall, 2 Hun (N. Y.), 238; Compare Van Voor- his V. Brintnal, 86 N. Y. 18, 40 Am. Rep. 505 ; Putnam v. Putnam, 8 Pick. (Mass.) 433; Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131 and note. 1. Booth V. Bank, 7 CI. & F. 540; In re Macleay, L. R. 20 Eq. 186, 189; Wells v. People, 71 111. 532. 2. Dillon V. Allen, 46 Iowa, 299, 26 Am. Rep. 145 ; Hathaway v. Moran, 44 Me. 67; Cook v. Phil- lip, 56 N. Y. 310; Cope v. Row- lands, 2 Mees. & Wei. 149, 2 Gale, 231; Bemis v. Becker, 1 Kans. 226; Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053. 3. Bank v. Owens, 2 Pet. (U. S.) 527. 199 § 180 CONTEACTS IN VIOLATION" OF LAW. Cll. 6 ARTICLE II. Violation of Sunday Laws. Section 180. Contracts Made on Sunday at Common Law. 181. Constitutionality of Sunday Laws. 182. As to Interstate Commerce. 183. Prohibited Contracts. 184. Contracts not Prohibited by Statute. 185. Negotiations on Sunday — Contracts Completed on Monday. 186. Contracts Within the Statute. 187. Ordinary Calling. 188. Work of Necessity. 189. Working on Sunday to Prevent Loss on Week Day. 190. Works of Charity. 191. Traveling on Sunday. 192. Ratification. 193. Third Persons. 194. Contracts Dated on Sunday. 195. Executed on Sunday. § i8o. Contracts made on Sunday at common law. — The common law made no distinction between Sunday and any other day of the week.-^ The common law never considered those con- tracts as void which were made on Sunday.^ The English statute^ prohibits only work of one's ordinary calling; and, hence the English cases carefully distinguish between contracts which are and are not of the " ordinary call- ing " of the parties. The former, if made on Sunday, are void ; the latter not. So, contracts, not within the prohibition, have 1. Swann v. Swann, 21 Fed. Rep. 12 Mo. App. 11; Hellams v. Ab- 299; Said v. Stromberg, 55 Mo. bercombie, 15 S. Car. 110, 40 App. 538. Am. Rep. 684; Brown v. Browning, 2. Comyns v. Boyer, Cro. 15 R. I. 422, 7 A. 403, 2 Am. St. Eliz. 485; Rex v. Brotherton, 1 Rep. 908; Richmond v. Moore, 107 Strange, 702; King v. Whitnash, 111. 429, 47 Am. Rep. 445; Eden 7 Barn. & Cr. 596; Bloxsome v. v. People, 161 111. 296, 43 N. E. Williams, 3 Barn. & Cr. 232; 1108, 32 L. R. A. 659, 52 Am. St. Bloom V. Richards, 2 Ohio St. 387, Rep. 365. 15 Am. Dec. 557; More v. Clymer, 3. 29 Car. II, ch. 7, sec. 1. 200 Ch. 6 AGREEMENTS IN VIOKATION OF STATUTE. §§ 180, 181 always been lield valid in England.'' By tlie English decisions, such contracts, when not within the prohibition of the statute, are not deemed contra honos mores, or in any other way invalid. The English statute^ has been generally followed in this country, prohibiting work of one's ordinary calling on Sunday. But the observance of this day is not required from all citizens. Believers in the Sabbatarian faith and the Jews are allowed to labor in tlieir resijective vocations on Sunday, and in certain places to open stores and carry on mechanical trades.® § i8i. Constitutionality of Sunday laws. — Sunday laws are constitutional. It is not the object of such laws to compel the observance of Sunday, as a religious institution, because it is the Christian Sabbath, to be kept holy under the ordinances of the Christian religion ; if it was, it w^ould violate the provisions of the Federal and the State Constitutions. It would then vio- late equally the religious liberty of the Christian, the Jew and the infidel, none of whom can be compelled by law to comply with any merely religious observance, whether it accords with his faith and conscience or not. Such is the general doctrine of the courts.^ The laws make no reference to Sunday as a religious day, and the exceptions generally made to the general prohibition 4. Drury v. Defontaine, 1 Taunt. 913; State v. Judge, 39 La. Ann. 131; King v. Whitnash, 7 Barn. & 132, 1 So. 437; State v. O'Rouik, Cr. 794; Fennell v. Ridder, 5 Barn. 35 Nebr. 614, 53 N. W. 591, 17 L. & Cr. 406; Rex v. Brotherton, 1 R. A. 830 and note; State v. Fer- Strange, 702. nandez, 39 La. Ann. 538, 2 So. 233; 5. 29 Car. II, ch. 7, sec. 1. Commonwealth v. Has, 122 Mass. 6. Martin v. Goldstein, 39 N. 40; Commonwealth v. Specht, 8 Y. S. 254; Judefind v. State, 78 Pa. St. 312, 49 Am. Dec. 518; Com- Md. 510, 28 A. 405, 22 L. R. A. 721 monwealth v. Nesbit, 34 Pa. St. and note. 398; Hudson v. Geary, 4 R. I. 1. State V. Powell, 58 Ohio St. 485; State v. Railroad Co., 15 W. 324, 50 N. E. 900, 41 L. R. A. Va. 362, 36 Am. Rep. 803; Char- 854; Judefind v. State, 78 Md. 510, leston v. Benjamin, 2 Strob. (S. 28 A. 405, 22 L. R. A. 721 and Car.) 508, 49 Am. Dec. 60S and note; State v. Bott, 3 La. Ann. 663; note; Johns v. State, 78 Ind. 332, State V. Baum, 33 La. Ann. 985; 41 Am. Rep. 577 and note; Bold. Corporation v. Minden, 36 La. Ann. v. State, 3 Tex. App. 683. 201 § 181 CONTKACTS IN VIOLATION OF LAW. Ch. 6 show that thej are not designed to enforce the Christian idea of the Sabbath, or to apply the rules of any religious sect to the observance of Sunday. Such statutes are to be judged precisely as if they had selected for a day of rest any day of the week other than Sunday. And the validity of the statute is not to be questioned because, in the exercise of a wise discretion, it haa chosen that day which the majority of the citizens of the State, under the sanction of their religious faith, already observe as a day of rest.^ It is essentially a civil regulation, providing for a fixed period of rest in the business, the ordinary vocations and the amuse- ments of the people. Some one day must be selected for that purpose, and even if the day thus selected is chosen because a great majority of the people celebrate it as of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the com- munity and to provide for its moral and physical welfare. The act imposes upon no one any religious ceremony or attendance upon any form of worship, and any one who deems another day more suitable for rest or worship, may devote that day to the religious observance which he deems suitable or appropriate. That one who conscientiously observes the seventh day of the week may also be compelled to abstain from business of the kind expressly forbidden on Sunday; this is not occasioned by any subordination of his religion, but because as a member of the community he must submit to the rules which are made by law- ful authority to regulate and govern the business of the people.^ Under this view, Sunday laws do not conflict with constitutional law. 2. State V. Judge, 39 La. Ann. Mass. 40; Ex parte Andrews, 18 132, 1 So. 437. Cal. 678; Ex parte Newman, 9 3. Frolickstein v. Mobile, 40 Cal. 502; State v. Railroad Co., 24 Ala. 725; Gabel v. Houston, 29 W. Va. 783, 49 Am. Rep. 290; Tex. 335; Scales v. State, 47 Ark. State v. Ambs, 20 Mo. 214; Mayor 476, 1 S. W. 769, 58 Am. Rep. 768 v. Linck, 12 Lea (Tenn.), 499; and note; Bloom v. Richards, 2 Hennington v. State, 90 Ga. 396, Ohio St. 387; Specht v. Common- 17 S. E. 1009, 163 U. S. 299, 16 S. wealth, 8 Pa. St. 312, 49 Am. Dec. Ct. 1086. See Sunday Laws-— 3 518; Commonwealth v. Has, 122 Canadian L. Review, 77, 215. 202 Ch. 6 AGREEMENTS IN VI0LATI0:N- OF STATUTE. § 182 § 182. As to interstate commerce. — A statute making it un- lawful to run freight trains on Sunday is not in conflict with the United States Constitution, and is not directed against in- terstate commerce. Such statute places the business of trans- porting freight in tlie same category as all other secular busi- ness. Such a law, although in a limited degree affecting inter- state commerce, is not for that reason a needless intrusion upon the domain of Federal jurisdiction, nor strictly a regulation of interstate commerce, but considered in its own nature is an ordinary police regulation designed to secure the well-being and to promote the general welfare of the people within the State by which it was established and, therefore, not invalid by force alone of the constitution of the United States.^ Lottery tickets are subject of traffic, and, therefore, of commerce, and the regulation of the carriage of such tickets, at least by independ- ent carriers, is a regulation of commerce among the several States, and hence Congress may prohibit the carriage of such tickets from State to State. The power of Congress to regulate interstate commerce comprises the right to enact a law pro- hibiting the citizen from entering into such private contracts which directly and substantially, and not merely indirectly, or remotely, regulate to a greater or less degree the commerce among the States. Hence, CongTcss may prohibit the carriage of lottery tickets from one State to another where they are to be sold.^ This rule does not curtail one's liberty as recognized by the supreme laws of the land, because he should not be al- lowed to introduce into commerce among the States an element that will confessedly be injurious to public morals. The liberty protected by the Constitution embraces the right to be free in the enjoyment of one's faculties, and to enter into all contracts that may be proper.^ Lottery companies are not engaged in interstate commerce, and are, therefore, subject to control by the State ; lottery tick- 1. Hennington v. Georgia, 163 321, 23 S. Ct. 321, 26 Nat. Cor. U. S. 299, 16 S. Ct. 1086. Rep. 76. 2. Champion v. Ames, 188 U. S. 3. Allgeyer v. Louisiana, 165 U. S. 578, 17 S. Ct. 427. 203 § 182 CONTKACTS IN VIOLATION OF LAW. Ch. 6 ets when sent beyond the State are subjects of interstate com- merce and, therefore, within the control of commerce. And transportation for others as an independent business, is com- merce, irrespective of the purpose to sell or retain the goods which the owner may entertain.* Yet a party who merely ships goods subject to interstate commerce does not thereby neces- sarily become engaged in interstate commerce.^ But an agent, engaged in soliciting, not selling, passage on an interstate road in another State, is engaged in interstate commerce.^ Cab service contracted for by railroad companies in transporting passengers from one station to another, may not be interstate commerce. If the cab service is separately contracted for, though the commerce clause would cover the entire journey where there is one through contract, yet where there are sep- arate contracts, some to be performed entirely within the State and some involving the crossing of State lines, this clause ex- tends only to the latter. So where the Pennsylvania railroad had established a cab service in ISTew York City for the sole use of passengers in getting to and from its ferry station before or after its passage across New Jersey line, this service was not interstate commerce.^ But such service could be included in interstate commerce by selling through tickets, with a coupon to special points within New York City, making the cab service a part of one through contract. Of course, a party is not an interstate passenger merely because he has a through ticket, for it is necessary, to accomplish this, that he engages in one through trip. Thus, a passenger having a ticket from St. Louis to Chicago, who exercises a privilege of stopping off at Bloom- ington, could not be said to be an interstate passenger when subsequently resuming his journey between Bloomington and Chicago. But the mere fact of a change of vehicle will not prevent a cab service between stations from being within the 4. Hanley v. Kansas City, etc. 6. McCall v. California, 136 U. R. R., 187 U. S. 67, 23 S. Ct. 314. S. 104, 10 S. Ct. S81. 5. Kidd V. Pearson, 128 U. S. 1, 7. New York ex rel. Pennsylva- 9 S. Ct. 6. nia R. R. Co. v. Knox, 192 U. S. 21. 204: Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 182-184 term of interstate commerce.^ But where there are several contracts, some to be performed within the State and others without, the interstate commerce clause extends only to those extending across State lines.^ § 183. Prohibited contracts. — The doctrine that contracts made on Sunday are void depends alone upon statutory enact- ments, but the statutes vary in the several States. Where the statute expressly prohibits the execution of contracts on Sun- day, all contracts made on that day are absolutely void, and incapable of ratification, any dealings between the parties upon the basis of such contracts will, so far as completed, be treated as the voluntary acts of the parties which cannot be disturbed, and so far as not completed, must be dealt with as if no contract had ever been made.^" § 184. Contracts not prohibited by statute. — While contracts growing out of the violation of statutes are void and will not be enforced by the courts, other business contracts are left as at common law, and as the common law makes no distinction be- tween Sunday and any other day, as to the making of contracts, and all other acts, not of a judicial nature, contracts other than those prohibited by statute are valid though made on Sunday.^^ 8. Rhodes v. Iowa, 170 U. S. Merriam v. Stearns, 10 Cush. 412, 18 S. Ct. 664. (Mass.) 257; Slade v. Arnold, 14 9. Kew York ex rel. Pennsylva- B. Mon. (Ky.) 287; Morgan v. nia R. R. Co. v. Knox, 192 U. S. Bailey, 59 Ga. 683; Towle v. Lar- 21. rabee, 26 Me. 464; Lyon v. Strong, 10. Gennett v. Wuestner, 53 N. 6 Vt. 219; Smith v. Railroad Co., J. Eq. 302, 31 A. 609; Burns v. 83 Wis. 271, 50 N. W. 497, 53 N. Moore, 76 Ala. 339, 52 Am. Rep. W. 555; Nibert v. Baghurst, 47 332; Watts v. Van Kess, 1 Hill (N. N. J. Eq. 201, 20 A. 252; Whit- Y.), 76 Calhoun v. Phillips, 87 more v. Montgomery, 165 Pa. St, Ga. 482, 13 S. E. 59"3; Barnhard v. 253, 30 A. 1016. Lupping, 32 Mo. 341; Pike v. King, 11. Roberts v. Barnes, 127 Mo. 16 Iowa, 49; Clough v Goggins, 405, 30 S. W. 113, 48 Am. St. Rep. 40 Iowa, 325; Love v. Wells, 25 640; Kaufman v. Hamm, 30 Mo. Ind 503, 87 Am. Dec. 375; Pattee 387; More v. Clymer, 12 Mo. App. V. Greely, 13 Met. (Mass.) 284; 11; Glover v. Cheatham, 19 Mo. 205 §§ 184, 185 CONTRACTS IN VIOLATION OF LAW, Ch. 6 The established doctrine is that the law will not lend its aid to enforce a contract made in violation of a statute, nor set aside snch a contract when it has been fully executed by the parties. ^^ The entering of judgment by confession on a judg- ment note does not make the contract to pay, of which the note is evidence, an executed contract. The agreement for entering judgment only is executed. ^^ § 185. Negotiations on Sunday — Contracts completed on Monday. — A contract may be good though the negotiations were had on Sunday, but was completed on Monday. Hence, a policy of insurance dated and delivered on Monday is not a Sunday contract, although the property was examined on Sun- day and the terms established.^ The date of a written contract within the meaning of the statutes is not necessarily the day of its delivery. It can have no efficiency or binding force until the act of delivery is per- formed, and if not delivered until Monday or other secular day, it is valid.^ So a note and trust deed executed on Sunday but not de- livered until Monday are valid.^ So a promissory note executed App. 656 J Bloom v. Richards, 2 N. W. 851; Taylor v. Young, 61. Ohio St. 387; Boynton v. Page, 13 Wis. 314, 21 N. 408; Tyler v. Wad- Wend. (N. Y.) 425; Johnson v. dington, 58 Conn. 375, 20 A. 335; Brown, 13 Kans. 529; Horacek v. McKinnes v. Estes, 81 Iowa, 749, Keebler, 5 Nebr. 355 ; Hellams v. 46 N. W. 987 ; Bradley v. Rea, 103 Abbercombie, 15 S. Car. 110, 40 Mass. 188, 4 Am. Rep. 524; Bryan Am. Rep. 684; Moore v. Murdock, v. Booze, 55 Ga. 438; Gibbs, etc. 26 Cal. 514. Manuf. Co. v. Brucker, 111 U. S. 12. Whitmire v. Montgomery, 165 597, 4 S. Ct. 572. Pa. St. 253, 30 A. 1016. 2. King v. Fleming, 72 111. 21, 13. Whitmire V. Montgomery, 165 22 Am. Rep. 131; Butler v. Lee, Pa. St. 253, 30 A. 1016. 11 Ala. 885, 46 Am. Dec. 250; 1. Wooliver v. Ins. Co., 104 Clough v. Davis, 9 N. H. 500; Burns Mich. 132, 62 N. W. 162. See, also, v. Moore, 76 Ala. 339, 52 Am. Rep. Lovejoy v. Whipple, 18 Vt. 379, 46 332; Uhler v. Applegate, 26 Pa. St. Am. Dec. 157; King v. Fleming, 72 140; Stackpole v. Symonds, 23 N. 111. 21, 22 Am. Rep. 131^ Fritsch H. 229; Mosely v. Vanhooser, 6 V. Heislem, 40 Mo. 556; Evert v. Lea (Tenn.), 286, 40 Am. Rep. 37. Kleimenhagen, 6 S. Dak. 221, 60 3. Roberts v. Barnes, 127 Mo. 206 Cll. 6 AGREEMENTS IN VIOLATION OK STATUTE. §§ 185, 186 on Snndav is not on that account void/ provided it is delivered on Monday.'' And a sale of goods negotiated on Sunday, but delivered on a secnlar day is valid,^ bnt if delivered on Sunday and the price paid on the following Monday, the sale is voidJ And a Sunday authorization to deliver a contract made on that day, on the following Monday, is void.^ But in Michigan the mere delivery of a note executed on a secular day does not avoid the note.® § 1 86. Contracts within the statute — Return of considera- tion. — A contract which requires the doing of an act prohibited by law is void. There is a difference in the decisions on the question whether a contract, void merely because it was made on Sunday, may be ratified on a secular day, so as to become valid; but there is no conflict of decisions on the proposition that a contract, void because it stipulates for doing what the law prohibits, is incapable of being ratified. Thus, in Min- nesota, the issuing, publishing, and circulating a newspaper on Sunday is unlawful.^ When the contract is void because made on Sunday, the pay- ment of money or the performance of any service cannot be en- forced as between the parties. Hence, the endorsement as well as making and delivery of a promissory note, is an act within the statute prohibiting secnlar business on Sunday.^ An en- 405, 30 S. W. 113, 48 Am. St. Rep. (Mass.), 543; Hilton v. Houghton, 640; Kaufman v. Hamm, 30 Mo. 35 Me. 143; Lovejoy v. Whipple, 387. See, also, Foster v. Woolen, 18 Vt. 379, 46 Am. Dec. 157. 67 Miss. 540, 7 So. 501; Compare 6. Bar.ks v. Werts, 13 Ind. 203. Hanchett v. Jordan, 43 Minn. 149, 7. Grant v. McGrath, 56 Conn. 45 N. W. 617. 333, 15 A. 370. 4. More v. Clymer, 12 Mo. App. 8. Davis v. Barger, 57 Ind. 54. 11; Glover v. Cheatham, 19 Mo. 9. Steere v. Trebilcock, 108 App. 656. Mich. 464, 66 N. W. 342. 5. Beman v. Wessels, 53 Mich. 1. Hand v. Pub. Co., 41 Minn. 549, 19 N. 179; Wilson v. Winter, 188, 42 N. W. 872. See, also, 6 Fed. Rep. 16; Bell v. Mahin, 69 Smith v. Wilcox, 24 N. Y. 353, 82 Iowa, 408, 29 N. W. 331; Schwab Am. Dec. 302. V. Rigby, 38 Minn. 395, 38 N. W. 2. Benson v. Drake, 55 Me. 555. 101; Hill v. Dunham, 7 Gray 20Y §§ 186, 187 CONTEACTS IN VIOLATION OF LAW. Ch. 6 dorsement creates a new contract; it affects the liability of the maker as well as the contract to which it is subsidiary.^ A notice to a tenant that after the expiration of his existing con- tract, he will be charged an increase of rent, is of no avail, if such notice is given on Sunday, and the tenant simply remains in possession after his term, because this does not raise any con- tract to pay such increased rent.* In Missouri athletic sports are not prohibited.^ A bond void because executed on Sunday may still be used in evidence as an admission of liability.® And so an acknowl- edgment or new promise made on Sunday may be used in evi- dence for the purpose of removing the bar of the statute of limitations.^ Selling tickets to theatre for performance, on Sunday, is laboring on Sunday and is prohibited.^ In Maine a party re- scinding Sunday contract must return consideration.® § 187. Ordinary calling. — In some of the States the statute prohibits persons from doing any work, business, or labor "of his ordinary calling," Under this statute a party may contract to labor or do work not in his ordinary calling, and the contract will be valid. -"^ And so making a mortgage may be outside of the party's ordinary calling,^^ or a promissory note.'^^ Such statutes do 3. First Nat. Bank v. Kingsley, Bank v. Kingsley, 84 Me. Ill, 24 84 Me. Ill, 24 A. 794. A. 794; Wheelden v. Lyford, 84 4. Cannon v. Ryan, 49 N. J. Eq. Me. 114, 24 A. 793. 314, 23 A. 285. 10. Drury v. Defountaine, 1 5. St. Louis Agricultural, etc. Taunt. 131; Merritt v. Earle, 31 Asso. V. Delano, 108 Mo. 217, 18 S. Barb. (N. Y.) 38; Moore v. Mur- W. 101. dock, 26 Cal. 514; Mills v. Wil- 6. Lea v. Hopkins, 7 Pa. St. 492. liams, 16 S. Car. 593; Kaufman 7. Thomas v. Hunter, 29 Md. v. Hamm, 30 Mo. 387; Allen v. 406; Compare Baumgardner v. Gardiner, 7 R. I. 22; Ames v. Taylor, 28 Ala. 687. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. 8. Quarles v. State, 55 Ark. 10, Dec. 463. 17 S. W. 269, 14 L. R. A. 192 and 11. Hellams v. ABljercrombie, 13 note. S. Car. 110, 40 Am. Rep. 684. 9. Berry v. Clary, 77 Me. 482, 12. Sanders v. Johnson, 29 Ga. 1 A. 360; Wentworth v. Woodside, 526. 79 Me. 156, 8 A. 763; First Nat. 208 Cll. () AGREEMENTS IN VIOLATION OF STATUTE. §§ 187, 188 not apply to all persons, but to such only as have some ordinary calling; but every species of labor, business, or work, whether public or private, in the ordinary calling of a tradesman, arti- ficer, workman, laborer, or other person, is within the prohibi- tion of the statute.^" And so a release by a creditor to an assignee under a voluntary assignment, and delivered on Sunday is not void, not being labor, business, or work of the ordinary calling of either of the parties to it." Where the statute prohibits the exposure of merchandise for sale on Sunday, it extends to public sales only, and not to private sales. ^^ If the statute requires busi- ness houses to be closed on Sunday, the command must be obeyed. ^^ § i88. Work of necessity. — The word necessity as used in the various statutes, is not susceptible of an accurate and en- tirely comprehensive definition. Each case must be decided ac- cording to the circumstances, and it is, therefore, more a ques- tion of fact than of law whether the labor done in a particular case is to be deemed of necessity or not. An absolute and phy- sical necessity is not meant or required.^ Work, to prevent a great waste of property, has always been held to be within the exception of such statutes. The necessity for the work to be done must be real and urgent, and must not have been the re- sult of negligence or indolence on the part of the person doing the labor.^ Works of necessity are not limited to the preserva- tion of life, health, or property from impending danger. The necessity may grow out of, or be incident to, the general course of business, or even be an exigency of a particular trade or business, and yet be within the exemption of the statute. Hence, the dan- ger of navigation being closed may make it lawful to load a ves- 13. Smith V. Sparrow, 4 Bing. 84; 16. State v. Gelpi, 48 La. Ann. Bloxsome v. Williams, 3 Barn. & 520, 19 So. 755. Cr. 232. 1. Johnson v. People, 42 111. App. 14. Allen v. Gardiner, 7 R. I. 22. 594; Shipley v. State, 61 Ark. 216, 15. Boynton v. Page, 13 Wend. 32 S. W. 489, 33 S. W. 107. (N. Y.) 425; Batsford v. Every, 44 2. Parmalee v. Wilks, 22 Barb. Barb. (N. Y.) 618. (N. Y.) 539; Whitcomb v. Oilman, 35 Vt. 297. 209 § 188 CONTRACTS IN VIOLATION OF LAW. Oh. 6 sel on Sunday, if there is no other time to do so,^ The sailing of vessels engaged in commerce, and even their lading and unlad- ing, are classed among works of necessity which are excepted from the operation of such statute. And this is confirmed by the usage of all nations, so far at least as it concerns commencing a voyage on Sunday.* And running passenger trains is a work of necessity f and so is running excursion trains.® But it is said that running a freight train is not a work of necessity,^ however, this may be doubted.^ Under some of the statutes the work of a barber is a neces- sity.^ The following are works of necessity : Repairing defects in a highway;^" reaping a field of grain ;^^ shoeing horse used in carrying mail;^^ telegram from husband to wife explaining his absence ;^^ telegram informing child of his father's death ;" telegram to physician ;^^ repairing railroad tracks,^^ giving a bail bond ;^^ contract of indemnity from an absconding debtor ;^* and whatever must be done to preserve life and health. ^^ 3. McGatrick v. Wasson, 4 Ohio St. 566. 4. Philadelphia", etc. R. R. Co. v. Tow Boat Co., 23 How. (U. S.) 209. 5. Commonwealth v. Railroad Co., 80 Ky. 291, 44 Am. Rep. 475. 6. Louisville, etc. R. R. Co. v. Commonwealth, 30 S. W. 878, 17 Ky. L. J. 223. 7. Heard v. State, 92 Ga. 477, 17 S. E. 857. 8. Philadelphia, etc. R. R. Co. V. Lehman, 56 Md. 209. 9. State V. Krech, 10 Wash. 166, 38 P. 1001; People v. Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707; Un- gericht v. State, 119 Ind. 379; 21 N. E. 1082; Stone v. Graves, 145 Mass. 353, 13 N. E. 906, 12 Am. St. Rep. 419; Compare Phillips v. Innis, 4 CI. & F. 234; Eden v. People, 161 111. 296, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365. 10. Flagg v. Inhabitants, 4 Cush. (Mass.) 243. 11. Johnson v. People, 42 111. App. 594. 12. Nelson v. State, 25 Tex. App. 599, 8 S. W. 927. 13. Burnett v. Telegraph Co., 39 Mo. App. 599. 14. Western Union Telegraph Co. v. Wilson, 93 Ala. 32, 9 So. 414, 70 Am. Rep. 523. 15. Western Union Tel. Co. v. Griffin, 1 Ind. App. 46, 27 N. E. 113. 16. Yonoski v. State, 79 Ina. 393, 41 Am. Rep. 614. 17. Hammons v. State, 59 Ala. 164, 31 Am. Rep. 13 and note. 18. Hooper v. Edwards. 18 Ala. 280. 19. Aldrich v. Blackstone, 128 Mass. 148 ; Smith v. Watson, 14 Vt. 332; Stewart v. Davis. 31 Ark. 210 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 188, 189 But a telegram respecting ordinary business is not a work of charity f^ sale of tobacco is not a necessity f^ nor gathering seaweed.^^ In Illinois/^ Missouri,^* and California^^ the law is held un- constitutional which makes it unlawful for barbers to do busi- ness on Sunday. But in New York such law is upheld as a police power.^® § 189. Working on Sunday to prevent loss on week day. — Doing work on Sunday in order to prevent loss on a week day, is not a work of necessity. Thus, the clearing out of a wheel-pit on Sunday, for the purpose of preventing the stoppage on a week day, of mills which employ many hands, is not a work of necessity or charity.^^ Where the only reason for doing the work on Sunday, is because the party is doing a large business, em- ploying many hands, and the work would obviate the necessity of stopping the machinery on a week day, the statutory pro- hibition is violated and it is not a work of necessity. ^^ This does not make it a work of necessity or charity.^^ 518, 25 Am. Rep. 576; Philadel- 19; State v. Krech, 10 Wash. 166, phia, etc., R. R. Co. v. Lehman, 56 38 P. 1001; Hugerecht c. State, 119 Md. 209, 226, 40 Am. Rep. 415 and Ind. 379, 21 N. E. 1082, 12 Am. note. St. Rep. 419; Stone v. Graves, 145 20. Western Union Tel. Co. v. Mass. 353, 13 N. E. 906. Yopst, 118 Ind. 48, 20 N. E. 222, 27. McGrath v. Merwin, 112 Mass. 3 L. R. A. 224 and note. 467, 17 Am. Rep. 119. See, also, 21. State V. Ohmer, 34 Mo. App. Commonwealth v. Sampson, 97 115. Mass. 407; Commonwealth v. Jos- 22. Commonwealtli v. Sampson, selyn, 97 Mass. 411; Hamilt>on v. 97 Mass. 407. Austin, 62 N. H. 575, 13 Am. St. 23. Eden v. People, 161 111. 296, Rep. 007; Compare Hennersdorf 43 N. E. 1108, 32 L. R. A. 659, 52 v. State, 25 Tex. App. 597, 8 S. W. Am. St. Rep. 365. 926. 24. State v. Granneman, 132 28. Williams v. Hastings, 58 N". Mo. 326, 33 S. W. 784. H. 373; Hamilton v. Austin, 62 N. 25. Ex parte Jentzsch, 112 Cal. H. 575. 468. 44 P. 803, 32 L. R. A. 664. 29. Commonwealth v. Sampson, 26. People v. Havnor, 149 N. Y. 97 Mass. 407; Commonwealth v. 195, 43 N. E. 541, 31 L. R. A. 689, Josselyn, 97 Mass. 411; McGrath 52 Am. St. Rep. 707. See, also, v. Merwin, 112 Mass. 467, 17 Am. People V. Buttling, 35 N. Y. Supp. Rep. 119. 211 g§ 190-192 CONTKACTS IN VIOLATION OF LAW. Oil. 6 § 190. Works of charity. — If work is done in the cause of charity it comes within the exception.^'' Thus, the subscription to a church made on Sunday to liquidate the indebtedness on a church contracted in the erection of a building to be used as a place of worship is not labor, but is a work of charity, and is valid and binding. ^^ The purpose for which it was taken falls witliin the definition placed upon the word charity by the courts.^^ § 191. Traveling on Sunday. — Some statutes prohibit travel on Sunday, except for necessity or charity. But all traveling on Sunday is not unlawful. One may lawfully travel on Sun- day for exercise in the open air.^^ So one may go after a domes- tic and bring her home on Sunday, as such is a work of neces- sity.^* Hiring a carriage on Sunday is illegal f^ but traveling on Sunday may be justified on the ground of necessity or as a deed of charity.^*^ This subject does not come directly under contracts and cannot be further treated. § 192. Ratification. — Many courts hold that a contract void because made on Sunday, may be ratified on a secular day ; that contracts on Sunday are distinguished from' other illegal con- tracts to secure an immoral end, or for an immoral considera- tion, — being illegal only as to time, not tainted with any general corruption, they may be affirmed afterwards. If the party seek- ing redress has received anything he must restore it. If he de- clines restitution or compensation, this affirms the contract.'^ 30. Stewart V. Davis, 31 Ark. 518, 34. Cro-sman v. Lynn, 121 Mass. 25 Am. Rep. 576. 301. 31. Bryan v. Watson, 127 Ind. 35. Tillock v. Webb, 56 Me. 100; 42, 26 N. E. 637, 11 L. R. A. 63. Compare Buck v. Biddeford, 82 Me. 32. Doyle v. Lynn, 118 Mass. 195, 433, 19 A. 912. 19 Am. Rep. 431; Allen v. Duffie, 36. Buck v. Biddeford, 82 Me. 433, 43 Mich. 1, 4 N. 427, 38 Am. Rep. 19 A. 912. See, also, Horton v. 159 and note; Dale v. Knepp, 98 Tramway Co., 66 Conn. 272, 33 A. Pa. St. 389, 42 Am. Rep. 624. 914. 33. OConnell V. Lewiston, 65 Me. I.Adams v. Gay, 19 Vt. 358; 34. " Sargeant v. Butts, 21 Vt. 99; Sum- 212 Ch. 6 AGRJEOiMEWTS llSi VIOLATION OF STATUTE. § 192 But the better rule is that a contract made on Sunday in vio- lation of a statute is absolutely void, and no subsequent rati- fication will sustain an action upon it.' Such a contract has no legal force or obligation. This illegal contract cannot be rati- fied, because its want of validity does not depend in any degree upon the party's choice. The law annuls, it, and there can be no subject of ratification. The party might make a new con- tract ; but any arrangement or agreement between the parties on any secular day, whether direct or express, or implied from their dealings with each other's property, would be a new and inde- pendent transaction. It is not accurate to speak of ratification by a party of something which the law forbids., and which is made void, not from any want of his full consent, but in spite of it.^ Ratification is to impart validity to an original agree- ment. Such act creates no new obligation ; it merely extends the continuance of, or legalizes, one already in existence. The maxim of the law is: "Omnis ratihabitio retro trahitur, et man- dato priori aequiparatur " — every subsequent ratification has a retrospective effect, and is equivalent to a prior command. Hence, there can be no such thing in law, strictly speaking, as a ner v. Jones, 24 Vt. 317; Banks v. (Mass.), 209; Bradley v. Kea, 14 Werts, 13 Ind. 203; Sayles v. Well- Allen (Mass.), 20; Meriwether v. man, 10 R. I. 465; Haacke v. Lit- Smith, 44 Ga. 541; Butler v. Lee, erary Club, 76 Md. 429, 25 A. 422; 11 Ala. 885, 46 Am. Dec. 230; Hopkins v. Stefan, 77 Wis. 45, 45 Ramey v. Capps, 22 Ala. 288; Al- N. W. 676; Evansville v. Morris, 87 len v. Deming, 14 N. H. 133, 40 Am. Ind. 209, 14 Am. Rep. 763; Kuhns Dec. 170; Winfield v. Dodge, 45 V. Gates, 92 Ind. 66; Harrison v. Mich. 355, 7 N. 966, 40 Am. Rep. Colton, 31 Iowa, 16; Tucker v. 476; Grant v. McGrath, 56 Conn. West, 29 Ark. 386; Smith v. Case, 333, 15 A. 370; Plaisted v. Palmer, 2 Oreg. 190; Wilson v. Milligan, 63 Me. 576; Kountz v. Price, 40 75 Mo. 41 ; Russell v. Murdock, 79 Miss. 341 ; Compare Winehell v. Iowa, 101, 44 N. W. 237, 18 Am. St. Carey, 115 Mass. 560, 15 Am. Rep. Rep. 348; Melchoir v. McCarty, 31 151; Gennert v. Wuestner, 53 N. J. Wis. 256, 11 Am. Rep. 605; Camp- Eq. 302, 31 A. 609; Nibert v. Bog- bell V. Young, 9 Bush. (Ky.), 245; hurst, 47 N. J. Eq. 201, 20 A. 252; Van Hoven v. Irish, 10 Fed. Rep. Ryno v. Darby, 20 N. J. Eq. 231; 13. Reeves v. Butcher, 31 N. J. L. 225; 2. Day v. McAllister, 15 Gray Cannon v. Ryan, 49 N. J. L. 314, 8 (Mass.), 433; Finn v. Donahue, 35 A. 293. Conn. 216; Pope v. Linn. 50 Me. 3. Stebbins v. Peck, 8 Gray 83; Ladd v. Rogers. 11 Allen (Mass.), 553. §§ 192, 193 CONTKACTS IN VIOLATION OF LAW. Oh. 6 ratification of a transaction which, at the time of its perform- ance, was prohibited by statute. The parties cannot legalize that which the law has declared illegal. It is competent to them to impart a new efficacy to a voidable act, but they have no power to give life to an act which, from reasons of public policy, has been ordained by the legislature, to be absolutely void.^ But a new contract, express or implied, may be made on the same subject, as though nothing had been done on Sunday.^ § 193. Third persons. — Dating of a contract on a week day, when it is really executed on Sunday, does not render it valid. But, in favor of an innocent party, an indorsee, assignee, or other innocent party, if he bona fide and for a valuable consid- eration acquires his interest on a week day, the contract will be good. So a maker of a note executed on Sunday has no equity existing as to a payee or bona fide assignee after maturity. It is only against the person in equal fault that the maker can be allowed to allege his own turpitude.^ There is no reason why a note should be avoided in the hands of the payee, who was not aware of its invalidity, and has not himself participated in any violation of the statute prohibiting labor and business on Sunday.^ So an innocent indorsee is not affected by the circumstance of a note dated on a week day, which was in reality executed on Sunday.^ A party to a con- tract, who has not himself violated the law, is not precluded 4. See Watts v. Van Ness, 1 Hill C. 443 ; Rosenblatt v. Townsley, 73 (N. Y.), 76; Merriam v. Stearns, Mo. 536. 10 Cush. (Mass.) 257; Reeves v. 1. Leightmens v. Kadetska, 58 Butcher, 31 M. J. L. 224. Iowa, 676, 12 N. 736, 42 Am. Rep. 5. Bradley v. Rea, 103 Mass. 129; Johns v. Bailey, 45 Iowa, 241. 188, 4 Am. Rep. 524; Pope v. Linn, 2. Ray v. Cattell, 12 B. Mon. 50 Me. 83; Finn v. Donahue, 35 (Ky.) 532; Dahoney v. Dahoney, 7 Conn. 216; Pate v. Wright, 30 Ind. Bush (Ky.), 217; Hilton v. Hough- 476, 95 Am. Dec. 705 ; Butler v. Lee, ton, 35 Me. 143 ; Commonwealth 11 Ala. 885, 46 Am. Dec. 230: v. Kendig, 2 Pa. St. 448; Lovejoy Rainey v. Capps, 22 Ala. 288; Wil- v. Whipple, 18 Vt. 379, 46 Am. Dec. liams V. Paul, 6 Ring. 653; Simp- 157. son V. Nicholls, 3 Mees. & Wei. 240; 3. Trieder v. Bank, 31 Ark. 128; Van Hoven v. Irish, 3 McCrary, C. Iloise v. Burapass, 40 Ark. 545. 214 Ch. G AGREEMENTS IN VIOI.ATION OF STATUTE. §§ 193-195 from enforcing such contract, and that the acceptance of a bond on a secular day, which was signed on the Sabbath, is not a violation of the law/ And if some steps are taken toward the execution of a contract on Sunday, but is not fully consum- mated until a secular day, such contract is. not in contravention of the statute.^ And the fact that a bond for costs was signed on Sunday, but delivered to the court on a week day, does not render it void.^ § 194. Contracts dated on Sunday. — Because a contract is dated on Sunday does not make it a Sunday contract. Hence, making and delivering on a secular day, of a promissory note dated and to take effect on a subsequent Sunday, is not work prohibited by the statute, for the observance of the Sabbath.^ So, where a land contract was delivered on a week day, the mere fact that it was dated as if made on Sunday is not material, and it is valid.^ If the contract is entered into on a week day, and dated to be performed on Sunday, it is still valid,^ unless some- thing prohibited by the statute is to be done.^*' § 195. Executed on Sunday. — A contract made and con- cluded on Sunday cannot be enforced by action in some States.* Hence, a loan of money made on Sunday cannot be recovered back.^ And so a party to whom property has been delivered 4. Evansville v. Morris, 87 Ind. N. 910; Stacy v. Kemp, 97 Mass. 269, 44 Am. Rep. 763. 166. 5. Beitenman's Appeal, 55 Pa. 10. Smith v. Wilcox, 24 N. Y. St. 183; Merrill v. Downs, 41 N. 353, 82 Am. Dec. 302. H. 72; State v. Young, 23 Minn. 1. Pike v. King, 16 Iowa, 49; 551; Prather v. Harlan, 6 Bush (N. Greene v. Godfrey, 44 Me. 25; Kin- Y.), 185. ney v. McDermott, 55 Iowa, 674. 8 6. Hall V. Parker, 37 l\Iich. 590, N. 656, 39 Am. Rep. 191; Finn vc 26 Am. Rep. 540. See, also, Hilton Donahue, 35 Conn. 216; Compare V. Houghton, 35 Me. 143. Tucker v. Mowrey, 12 Mich. 378; 7. Stacy v. Kemp, 97 Mass. 166. Brazee v. Bryant. 50 Mich. 136. 15 8. Lamore v. Frisbie, 42 Mich. N. 49; Smith v. Betin, 15 N. H. 577. 186, 3 N. 910. 2. Finn v. Donahue, 35 Conn. 9. Aldridge v. Bank, 17 Ala. 45; 216. Lamore v. Frisbie, 42 Mich. 186, 3 215 § 195 CONTRACTS IN VIOLATION OF LAW. Cll. 6 under a contract made on Sunday may maintain replevin there- for, if retaken from his possession without his consent by the other party.^ Where both parties to a contract have failed to comply with the law, neither party can invoke the aid of the law to repudiate it." Money paid on Sunday and retained afterwards discharges, the debt.^ So, payments made on Sunday and not returned, but allowed on a final accounting, will not avoid the contract on which they were received, as one made in violation of the Sun- day laws.^ However the cases are in conflict as to executed contracts. Executory contracts cannot be enlorced when illegal because made on Sunday. And it has been held that an executed con- tract made by an agent having full power, is binding on his principal, though it was made on Sunday, and is within the scope of the agent's authority. Hence, the mere fact that an agent, in the course of exercising a delegated authority, himself violates a prohibitive statute, does not liberate or discharge the principal from the obligation of the contract, if the contract be one within the scope of his authority. Thus, where an agent, with full power, trades his principal's horse on Sunday, and the contract is executed, the principal cannot sustain an action of replevin to regain the horse, which was delivered to the de- fendant by the agent.' 3. Kinney v. McDerraot, 55 Iowa, 5. Johnson v. Willis, 7 Gray 674, 8 N. 656, 39 Am. Rep. 191. See, (Mass.), 164. also, Smith v. Bean, 15 N. H. 577; 6. Lamore v. Frisbie, 42 Mich. Pattee v. Greely, 13 Met. (Mass.) 186, 3 N. 910. 284. 7. Ricards v. Ricards (Md.), 56 4. Greene v. Godfrey, 44 Me. 25. At. Rep. 397. 216 Ch. 6 AGREEMENTS IN VIOL.1TION OF STATUTE, § 196 ARTICLE III. Statutes Regulating Trade and Professions. Section 100. Contracts Prohibited by Statute. 197. Sealing of Weights and Measures. 19S. Brokers — Peddlers. 199. Lawyers. 200. Physicians. 201. School Teachers. 202. Articles of Commerce — Sales Without Inspection. 203. Minors — Prohibited Work. 204. Contract Valid in Part and Void in Part. 205. Sale of intoxicants Without a License. § 196. Contracts prohibited by statute. — It is familiar law, both in England and America, that a contract prohibited, either expressly or impliedly, by statute, is illegal and cannot be en- forced.^ Where a contract is made in a manner prohibited by a statute passed for the protection of a buyer, no action can be maintained upon it; and where the statute directs the mode in which, the contract shall be made, not following the directions is equivalent to disobeying a prohibition. And, if the statute imposes a penalty upon the act done, this will make the con- tract void in like manner as if it were in terms prohibited, be- cause a penalty implies a prohibition.^ However, when the statute enacts as one of the means of raising a revenue, that those engaged in a particular occupation shall take out a license and pay a certain sum for it, or be subject to the payment of a greater sum, by way of penalty, for neglecting to do so, the only consequence that follows the neglect or omission is the liability 1. Perkins v. Watkins, 2 Baxt. 2. Law v. Hodgson, 11 East, 300; (Tenn.) 187 ; Holt v. Green, 73 Pa. Bartlett v. Viner. Carth. 252; St. 198; Dillon v. Allen; 4(> Iowa, Little v. Poole, 9 Barn. & Cr. 192; 299, 26 Am. Rep. 145 ; McConnell v. Foster v. Taylor, 5 Barn. & Adol. Kitchens, 20 S. Car. 430, 47 Am. 887; Cundell v. Dawson, 4 C. B. Rep. 845; Wood v. Armstrong, 54 376; ^^^leeler v. Russell, 17 Mass. Ala. 150, 25 Am. Rep. 671 and note; 258: Allen v. Hawks, 13 Pick. Johnson V. Hulings, 103 Pa. St. 408, (Mass.) 82; Pattee v. Greely. 13 49 Am. Rep. 131. Met. (Mass.) 284. 217 §§ 190, 197 CONTRACTS IN VIOLATION OF LAW. Cll. 6 to the penaltj/ for the penalty is imposed only for the purpose of securing the payment of the amount required for the taking out of the license/ But where the object of requiring that a license shall be ob- tained is to limit the pursuit of certain callings to those who are declared duly qualified by the granting to them of a license, then the penalty implies a prohibition against engaging in that pursuit, unless a license is procured f or where, for the purpose of securing a more effectual compliance with the requirement of a revenue law, it is enacted that no one shall engage in or carry on a particular occupation, until he shall have obtained a license as provided for in the act, it is an, express prohibition.® § 197. Sealing of weights and measures. — Statutes are en- acted which have in view the prevention of fraud or imposi- tion. In such case, though there be nothing but a penalty im- posed for violation, such contracts are void. Thus, a statute for selling and disposing of goods, wares and merchandise by unsealed and unproved scales or measures, implies a prohibi- tion ; and such sales being made in violation of law, no recovery can be had for the price.' Hence, no action lies to recover the price of milk sold by the can, at wholesale, in can not sealed ac- 3. Johnson v. Hodgson, 11 East, Rep. 20; Penn. v. Bowman, 102 111. 300 ; Foster v. Taylor, 5 Barn. & 523 ; Downing v. Ringer, 7 Mo. 585 ; Cr. 898 ; Witherall V. Jones, 3 Barn. Williams v. Cheney, 3 Gray & Cr. 221; Brown v. Duncan, 10 (Mass.), 222; Jones v. Smith, 3 Barn. & Cr. 93. Gray (Mass.), 500; Hustis v. Pick- 4. Griffith v. Wells, 3 Denio (N. ands, 27 111. App. 270. Y.), 227. 7. Griffith v. Wells, 3 Denio (N. 5. Bartlett v. Viner, Garth. 252; Y.), 226; Lewis v. Welch, 14 N. H. De Begius v. Armistead, 10 Bing. 294; Brackettv. Hoyt, 29 N. H. 264; 107; Foster v. Taylor, 5 Barn. & Smith v. Arnold, 106 Mass. 269; Ad. 887. Woods v. Armstrong, 54 Ala. 150, 6. Bartlett v. Viner, Carth. 252; 25 Am. Rep. 671 and note; Inger- Mitchell V. Smith, 4 Dal. (U. S.) soil v. Randall, 14 Minn. 304; Bis- 269; Griffith v. Wells, 3 Denio (N. bee v. McAllen, 39 Minn. 143, 39 Y.), 226; Smith v. Mawhood, 14 N. W. 299; Finch v. Barclay, 87 Mees. & Wei. 403; Banking Co. v. Ga. 393, 13 S. E. 566. Rantenberg, 103 111. 460, 42 Am. 218 Ch. G AGREEMENTS Ii\ VIOI>.VT10N OK STATUTE. §§ 197, 198 cording to statute, although the sealer refused to seal them, for the statute price.^ § 198. Brokers — Peddlers. — Where a statute or ordinance enacts a penalty for the carrying of a particular business without a license, no action can be maintained for services per- formed by one who violates the statute or ordinance in perform- ing them. Thus, where it is unlawful to exercise within the city the business of a real estate broker without a license, a per- son so engaged in negotiating the sale or exchange of real prop- erty, in violation of such ordinance, can recover no commission for his services,^ though the sale is valid.^ So, a broker who has purchased mining stock for a third party, in violation of an or- dinance, without a license, cannot maintain an action for com- missions.^ But a party not a broker may sell real estate without a license and collect a commission.* In South Carolian it is said that one of the leading canons of construction in cases of this kind, is the test whether or not the license or exaction is a police regulation, or a tax assessment for the security and collection of the revenue. If the former, the calling itself is invalid, unless the requirement is complied with ; but, if it is a tax for revenue, then the act done is valid. The law does not operate on the business or calling, and affect that, but on the person, and punishes him with penalty or other- wise.^ Hence, the fact that a broker has not paid the license 8. Miller v. Post, 1 Allen son v. Huling, 103 Pa. St. 501; (Mass.), 434; Ritchie v. Boynton, Holt v. Green, 73 Pa. St. 198, 13 114 IVIass. 431. See, also, Eaton v. Am. St. Rep. 737; Stevenson v. Kegan, 114 Mass. 433; Bisbee v. Ewing, 87 Tenn. 46, 9 S. W. 30. McAllen, 39 Minn. 143, 39 N. W. 2. Murray v. Bond, 167 111. 368, 299; Fineh v. Barclay, 87 Ga. 393, 47 N. E. 717, 59 Am. St. Rep. 297. 13 S. E. 566. 3. Hustis v. Pickards, 27 111. 1. Richardson v. Brix, 94 Iowa, App. 270. 626, 63 N. W. 225; Buckley v. 4. O'Neill v. Sinclair, 153 111. Humanson, 50 Minn. 195, 52 N. W. 525, 39 N. E. 124. 385, 36 Am. St. Rep. 637; Hustis 5. McConnell v. Kitchens, 20 S. V. Piekands, 27 111. App. 270; Jobn- Car. 436; In re Jager, 29 S. Car. 219 § 198 CONTRACTS IN VIOLATION OF LAW. Oh. 6 tax required by an ordinance is no defense against an action brought by him to recover compensation on a sale duly made.* No action lies for service rendered in peddling goods for an- other without license in violation of law.' Nor can a special act of the legislature exempt honorably discharged soldiers from paying a license to peddle. This is so, as the Fourteenth Amendment to the Federal Constitution forbids such discrimi- nation/ because all persons subject to such legislation shall be treated alike under like circumstances and conditions, both in the privileges conferred and liabilities imposed.^ So any statute which provides that a license to peddle shall not apply to vet- erans of the civil war is void, because it is a discrimination, having no connection with the duties of the citizens as tax- payers, and their exemptions of the tax therein required of others exercising the same calling is favoritism, and a denial of the equal protection of the laws.^ A State may require a license fee from persons in one occupation, and not from those in an- other, provided no discrimination is made between those of the same class ; but when such discrimination exists, it impairs that equal right which all can claim in the enforcement of the laws. To discriminate between citizens by denying to one class the privilege of transacting business without complying with con- ditions and exactions not required of others, when the ground of classification is wholly arbitrary, is a denial of the equal protection of the law. 445, 7 S. E. 605; Fairly v. Wappoo 8. Magoun v. Bank, 170 U. S. Mills, 44 S. Car. 227, 22 S. E. 283, 18 S. Ct. 594, 42 L. Ed. 1037. 108, 29 L. R. A. 215. 9. State v Garbroski, 111 Iowa, 6. Fairly v. Wappoo Mills, 44 496, 82 N. W. 959, 56 L. R. A. 570, S. Car. 227, 22 S. E. 108, 29 L. 82 Am. St. Rep. 524; State v. Har- R. A. 215. rington, 68 Vt. 623, 35 A. 515, 34 7. Stewartson V. Lathop, 12 Gray L. R. A. 100; State v. Cadigan, 73 (Mass.), 52. See, also. Banks v. Vt. 245, 50 A. 1079, 57 L. R. A. 666, McCosker, 82 Md. 518, 34 A. 539, 87 Am. St. Rep. 714. See, also. In 51 Am. St. Rep. 478; Common- re Keymer, 148 N. Y. 219, 42 N. E. wealth V. Newhall, 164 Mass. 338, 667, 35 L. R. A. 447 ; Brown v. Rus- 41 N. E. 647; State v. Shedroi sell, 166 Mass. 14, 43 N. E. 1005, (Vt.), 54 At. Rep. 1081. 53 Am. St. Rep. 357 and note, 32 L. R. A. 253. 220 Ch. G AGRKEMENTS IN VIOLATION OF STATUTE. §§ 198, 199 In passing an ordinance, a city must not establish an ex- orbitant license fee for peddling and selling goods. So, a license fee of ten dollars a day imposed on itinerant merchants is in- valid, because it is unreasonably burdensome, in general re- straint of trade and prohibitory of business.^*' So, a fee of two hundred and fifty dollars a month, or twenty-five dollars a day, imposed on a transient merchant is void.^^ In general, when a clear case is presented, showing that the ordinance imposes a fee which is unreasonable or oppressive, the courts will not en- fore it, the fee being an unauthorized restraint of trade. ^^ § 199. Lawyers. — Under the same principle, a lawyer who has not obtained a license, as required by the internal revenue law act of the United States CongTess, cannot recover for pro- fessional services rendered since the passage of the act, and be- fore it was repealed.^ And, in general, an unlicensed attorney cannot recover compensation for professional services.^ But a law firm, one of which has been duly licensed, may recover in a joint action for services rendered by the firm, when there is no prohibitory statute which controls.^ And in Virginia it is held that lawyers practicing their profession without paying the license tax prescribed, are subject to the penalty, but their clients on that account cannot refuse to pay them their fees for professional service.* It must be remembered that if a law re- quiring a license declares in terms that the act or calling is un- 10. Carralton v. Bazzett, 159 111. - 607; Hannibal v. Telephone Co., 31 284, 42 N. E. 837, 31 L. K. A. 522. Mo. App. 23. 11. Othemway v. Zekind, 95 1. Hall v. Bishop, 3 Daly (N. Iowa, 622, 64 N. W. 646, 29 L. R. A. Y.), 109. See, also, Holshue v. 734, 58 Am. St. Rep. 447. Morgan, 170 Pa. St. 217, 32 A. 623. 12. Springfield v. Jacobs, 101 2. Hillson v. Bro^vne, 3 Colo. 304; Mo. App. 339, 73 S. W. 1097; Tug- Ames v. Oilman, 10 Met. (Mass.) man v. Chicago, 78 111. 405; Cald- 243; Ex parte Fellows, 2 Scam. well V. Alton, 33 111. 416, 85 Am. (111.) 369; Hughes v. Dougherty, Dec. 282 and note; Morse v. West 62 HI. App. 464. Port, 110 Mo. 502, 19 S. W. 881; 3. Harland v. Lilienthal, 53 N. Gratiot v. Railway Co., 116 Mo. Y. 440. 450, 21 S. W. 1094, 16 L. R. A. 189; 4. Yates v. Robertson, 80 Va. La Mar v. Weidman, 57 Mo. App. 475. 221 §§ 199, 2 CM) CONTBACTS IN VIOLATION OF LAW. Ct. 6 lawful unless the law is complied with, then the act or calling is prohibited, and a contract made under it cannot be sued on. If, however, there is no express and specific prohibition, then it is necessary to construe the act or ordinance and see whether the intent is to prohibit.^ § 200. Physicians. — The application of the law is made as to physicians who undertake to practice the profession of medi- cine without a license required by statute; and where the law prohibits the act, the physician can recover no compensation for his services if he has not procured the license,^ though it appears that he may recover upon an implied contract for ser- vices rendered after such license is procured.^ The physician must comply with the statute when prohibitory, or he cannot collect for his services.^ This is upon the principle that where a statute has for its manifest purpose, the promotion of some object of public policy, and prohibits the carrying on of a profession, occupation, trade or business, except in compliance with the statute, a contract made in violation of such statute cannot be enforced.^ 5. Harris v. Runnels, 12 How. 710; Eiehardson v. Dorraan, 28 (U. S.) 84. Ala. 679; Jordan v. Dayton, 4 Ohio, 1. Haworth v. Montgomery, 91 295; Underwood v. Scott, 43 Kans. Tenn. 16, 18 S. W. 399; Orr v. 714, 23 P. 942; Dow v. Haley, 30 Meek, 111 Ind. 40, 11 N. E. 787; N. J. L. 354; Bibber v. Simpson, 59 Cooper V. Griffin, 13 Ind. App. 212, Me. 181; Downs v. Minchew, 30 40 N. E. 710; Eastman v. State, 109 Ala. 86; Gaither v. Lindsey (Tex.), Ind. 278, 10 N. E. ^7, 58 Am. Rep. 83 S. W. 225. 400; Coyle v. Campbell, 10 Ga. 570. 4. Haworth v. Montgomery, 91 2. Gardner v. Tatum, 81 Cal. Tenn. 16, 18 S. W. 399; Compare 370, 22 P. 880. Aiken v. Blaisdell, 41 Vt. 655, 666. 3. Adams v. Stewart, 5 Har. See, also, People v. Arendt, 60 111. (Del.) 144; Holmes v. Halde, 74 App. 89; Paquin v. State Board, 19 Me. 28, 43 Am. Rep. 567 ; Puckett v. R. I. 365, 33 A. 870, Boucher v. Alexander, 102 N. Car. 95, 8 S. E. State Board, 19 R. I. 361, 33 A. 707, 3 L. R. A. 43; Bailey v. Mogg, 878; McCurry v. Gibson, 108 Ala. 4 Denio (N. Y.), 60; Davidson v. 451, 18 So. 806, 54 Am. St. Rep. Bohlman, 37 Mo. App. 576; East- 177; State v. Bonham, 96 Iowa, man v. State, 109 Ind. 278, 10 N. 252, 65 N. W. 154; Maxwell v. E. 97, 58 Am. Rep. 400; Cooper v. Swigart, 48 Neb. 789, 67 N. W. 789; Griffin, 13 Ind. App. 212, 40 N. E. 222 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 200-202 But a physician does not come under the rule of a common carrier or innkeeper, and, therefore, may refuse to attend any person who calls him, even if the usual fee is tendered.^ § 201. School teachers. — So, a school teacher is entitled to no compensation for services, if he has not a certificate as pre- scribed by law.^ So, where a teacher is employed who has no certificate to teach, the contract of hiring is void, and is not sus- ceptible of subsequent ratification.^ But a teacher is entitled to compensation for services rendered in good faith under a license prima facie correct, notwithstanding irregularity in issu- ing it by the proper officer.^ § 202. Articles of commerce — Sales without inspection, — Articles of commerce, such as fertilizers, are generally sold under restrictions, and the statute must be followed in order to make a valid sale. Thus, a contract for the sale of a fertilizer not labeled, as required by statute, is void, although such sale is not expressly prohibited. Because the penalty fixed for selling without complying with the statute, implies a prohibition, it being manifest that the statute was enacted for the purpose of protecting the public against the fraudulent sale of goods, not for the purpose of raising revenue.' And so, where a merchant sells fertilizers without complying with the statute and takes a note for the purchase-money, he cannot maintain an action on the note.^° So, where articles of commerce are subject to inspec- tion before they can be sold, a contract of sale is void if made Harrison v. State, 102 Ala. 170, 15 Dist., 27 Minn. 433; Board v. Wag- So. 563; O'Coanor v. State, 46 aman (Md.), 35 At. Rep. 85. Neb. 157, 64 N. W. 719; State v. 7. Wells v. People, 71 111. 532. Smith, 60 Mo. App. 283. 8. Hill v. Swinney, 72 Miss. 248, 5. Hurley v. EddenfieM, 156 Ind. 16 So. 497. See, also, Keller v. 416, 59 N. E. Rep. 1058, 53 L. R. Hewitt, 109 Cal. 146, 41 P. 871. A. 135, 83 Am. St. Rep. 198. 9. Vanmeter v. Spurrier, 94 Ky. 6. Jemness v. School Dist., 12 22, 21 S. W. 337; Brown v. Adair, Minn. 448 ; Sinnott v. Colombet, 107 104 Ala. 652, 16 So. 439. Cal. 187, 40 P. 329; Ryan v. School 10. McConnell v. Kitchen, 20 S. Car. 430, 47 Am. Rep. 845. 223 §§ 202, 203 CONTRACTS IN VIOLATION OF LAW. Oh. 6 before the inspection provided by statute, and if the article proves worthless, this is wholly immaterial. And in Georgia there can be no recovery, even of the contract comes into the hands of a bona fide holder/^ These cases are decided on the principle that a contract void which a statute prohibits under penalty is void although the statute does not expressly so provide/^ And a subsequent re- peal of the statute without any saving clause as to penalties already incurred, will not validate the contract void under the law in existence when the contract was made.^^ § 203. Minors — Prohibited work. — A father cannot bring an action to collect the wages of his minor child where the work is prohibited by statute. So, where a parent hires his son out to work in a factory, which is forbidden by statute, he cannot collect for the minor's wages. Because when he begins an action for the compensation, he is suing for an act in violation of the statute, for having, done a forbidden thing. ^ Such stat- ute is intended for the good of the minor, and also for the good of the public. And so the law will not help a man to recover pay for doing what the law says shall not be done.^ And so an employer who puts a child, under the age specified by law, to work on a printing press-, where the minor is injured, the employer is liable civilly for damages, on. account of his violation of law, and the question of negligence of the child is for the jury.^ The employer having violated the law, he cannot call upon the law to help him escape the liability or injury. It is only justice that he restores the minor's injury by a money 11. Johnson v. McConnell, 65 Ga. 13. Woods v. Armstrong, 54 Ala. i29; Conley v. Blalock, 71 Ga. 161. 150, 25 Am. Rep. 671 and note. 12. Woods V. Armstrong, 54 Ala. 1. Birkett v. Chatterton, 13 R. 150. 25 Am. Rep. 671 and note; I. 299, 43 Am. Rep. 30. O'Donnell V. Sweeney, 5 Ala. 468, 39 2. Peck v. Burr, 10 N. Y. 294; Am. Dec. 336. See, also. Pacific Levy v. Yates, 8 Ad. & El. 129 ; Gal- Guano Co. V. Mullen, 66 Ala. 582 ; lini v. Laborie, 5 T. R. 242. Campbell v. Segars, 81 Ala. 259, 20 3. Marino v. Lahmaier, 28 N. Y. So. 668. L. Jour. 2139, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 807. 224 Ch. 6 AGKEEMENTS IN VIOLATION OF STATUTE. §§ 203, 204 compensation. Whether the employment of a minor in viola- tion of the child labor law, is negligence per se by the employer or only evidence of negligence is a question not answered alike by the courts. Many hold the violation of such law is negli- gence per se, when the minor is injured in the employment, and others that it is evidence of negligence. This last rule is the New York doctrine.^ The true rule should be that whenever it is clear from the interpretation of the statute that the exact consequences against which it was intended to provide have act- ually ensued from its violation, the act. is negligence per se; but if the injury is merely collateral, the breach is evidence of negligence of the employer.^ The object of the statute is to fix the age limit below which it is neither safe nor proper to employ a child. It shows that a child below the age limit is not capable of exercising due care around machinery, and any such employ- ment is a dangerous and wrongfvil act. The employer should be liable for all the direct consequences, that is, all the natural and probable consequences.® § 204. Contract valid in part and void in part. — As a gen- eral rule, where a promise is made for one entire consideration, a part of which is fraudulent, immoral, or unlawful, and there has been no apportionment made, or means of apportionmeni furnished by the parties themselves, it is well settled that no action will lie upon the promise. If the bad part of the con- sideration is not severable from the good, the whole promise fails."^ When it appears that the consideration was made up of sev- eral distinct transactions, some of which are entirely honest and 4. Marino v. Lahmaier. 173 N. Cush. (Mass.) 1, 59 Am. Dec. 131; Y. 530, 66 N. E. 572, (51 L. R. A. Woodruff v. Wentworth, 133 Mass. 807. 309; Clark v. Ricker, 14 N. H. 44; 5. Hays v. Railroad Co., Ill U. Woodruff v. Hinman, 11 Vt. 592, S. 228, 4 S. Ct. 369. 34 Am. Dec. 712; Pickenny v. Rail- 6. Stone v. Railroad Co., 171 way Co., 3 C. P. 235 ; Harrington v. Mass. 544, 51 N. E. 1. Dock Co., 3 Q. B. D. 549; Bishop v. 7. Robinson v. Green, 3 Met. Palmer, 146 Mass. 469, 16 N. E. (Mass.) 159; Rand v. Mather, 11 299, 4 Am. St. Rep. 339. 225 §§ 204, 205 CONTKACTS IN VIOLATION OF LAW. Oh. 6 fair, and tlie valid consideration can be separated with certainty and ease from the vicious, then it may be held good for so much as is free from the taint of illegality.^ § 205. Sale of intoxicants without a license. — Statutes are enacted to regulate the sale of intoxicating liquors. These regu- lations are intended to protect the public against the conse- quence which may be expected to follow from allowing all per- sons, at their pleasure, to deal in strong liquors. 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.^ Such statutes look beyond the question of revenue, and have in view the protection of the public health or morals, or the prevention of frauds by the seller, and such contracts cannot be enforced.^ And, in an action upon an account stated, the defendant may plead and prove that the whole claim was founded in an illegal transaction f such as the sale of intoxicating liquors in violation, of law.* But the mere knowledge by the vendor that liquor is to be resold in violation of the statute, without participation in the illegality, will not vitiate the sales he makes to the intermediate dealers.^ But if the vendor designedly contributes to the scheme, 8. Carleton v. Woods, 28 N". 247 ; Griffitli v. Wells, 3 Denio (N. H. 290; Feldman v. Gamble, 26 N. Y.), 226. See, also, Springfield J. Eq. 494; Scott v. Gilmore, 3 Bank v. Merrick, 14 Mass. 322. Taunt. 226 ; Gotten v. McKenzie, 2. Law v. Hodgson, 2 Camp. 147 ; 57 Miss. 418; Shurman v. Thomp- Brown v. Duncan, 10 Barn. & Cr. son, 11 Ad. & E. 1027; Sawyer v. 93; Foster v. Taylor, 3 Nev. & Smith, 109 Mass. 220; Eaton v. Man. 244; Little v. Poole, 9 Barn. Kegan, 114 Mass. 433; Allen v. & Cr. 192; Wheeler v. Russell, 17 Pearce, 84 Ga. 606, 10 S. E. 1015. Mass. 258. 1. Knowlton v. Dorety, 87 Me. 3. Thomas v. Hawkes, 8 Mees. & 518, 33 A. 18, 47 Am. St. Rep. 349; Wei. 140; Cocking v. Ward, 1 C. Storz V. Finkelstein, 46 Neb. 577, B. 858, 870; Kennedy v. Brown, 13 65 N. W. 195, 30 L. R. A. 644; C. B. N. S. 677; Rundlett v. Woodford v. Hamilton, 139 Ind. Weber, 3 Gray (Mass.), 263. 481, 39 N. E. 47; Gipps Brewing 4. Dunbar v. Johnson, 108 Mass. Co. V. De France, 91 Iowa, 108, 58 519. N. W. 1087, 28 L. R. A. 386; Hoi- 5. Tatum v. Kelly, 25 Ark. 209. den V. Brooks, 66 N. H. 184, 20 A. 226 CL 6 AGRJSEMENTS IN VIOLATION OF STATUTE. § 205 or is to derive a benefit from it, or if there is unity of purpose between him and the party to be supplied, he is affected with, the latter's criminality, and the contract is void.^ All sales with- out a license are prohibited and are illegal. Such statutes are not for the mere purpose of revenue, but for the regulation of the sale of intoxicants, and where no license has been pro- cured, the vendor cannot collect the price from the vendee.' And so the owner of a building, who wilfully suffers it to be used for the illegal sale of intoxicating liquors, cannot recover for the use and occupation of the same for the period during which he suffers it to be so illegally used.^ A party may sell intoxicating liquors in another State, if not against the statute of that State, and collect the price f but if it be against the statute of the latter State and a contract of that State, it will be illegal.^"^ 6. Fisher v. Lord, 63 N. H. 514, 3 A. 927; Foster v. Thurston, 11 Cush. (Mass.) 322; Riley v. Jordan, 122 Mass. 231; O'Bryan v. Fitz- gerald, 48 Ark. 48, 3 S. W. 527. 7. Territt v. Bartlett, 21 Vt. 184; Vannoy v. Patton, 5 B. Mon. (Ky.) 248; Cobb v. Billings, 23 Me. 470; Lewis V. Welch, 14 N. H. 294; Sol- oman v. Dresehier, 4 Minn. 278; Melchoir v. McCarthy, 31 Wis. 252, 11 Am. Rep. 605; Bach v. Smith, 2 Wash. Ter. 145; Bancroft v. Dumas, 21 Vt. 456; Boutwell v. Foster, 24 Vt. 485. 8. Mitchell v. Scott, 62 N. H. 596. See, also. Bliss v. Brainard, 41 N. H. 256; Allen v. Deming, 14 N. H. 133, 40 Am. Dec. 179; Lewis V. Welch, 14 N. H. 294. 9. Holden v. Brooks, 66 N. H. 184, 20 A. 247. 10. Gipps Brewing Co. v. De France, 91 Iowa, 108, 58 N. W. 1087, 28 L. R. A. 3B6, 51 Am. St. Rep. 329. . 227 § 206 CONTKACTS IN VIOLATION OF LAW. Ch. 6 AKTICLE IV. Usurious Contracts. Section 206. Definition. 207. Statutory Provisions. 208. Intent is Essential to Constitute Usury, 209. Lending and Borrowing Money. 210. Legal Interest — Commission. 211. Agent of the Party Loaning. 212. Discount of Accommodation Paper. 213. Taking Personal Property as Interest. 214. Cash and Credit. 215. In Purchase Price of Land. 216. Bonus for Consideration of Making the Loan. 217. Antedating a Note — Interest Payable in Advance. 218. Hiring or Renting Securities. 219. Building and Loan Association. 220. Building Associations Must Keep Within the Statute. 221. Premiums and Exchange. 222. Compound Interest. 223. Statutory Provisions. 224. Interest Coupons. 225. Recovering Back Usurious Interest. 226. Computation of Interest — Compounding. 227. Taxes and Expenses. 228. Commission and Discount. 229. Attorney's Fees. 230. Sale of Security — Innocent Purchaser. 231. Absolute Sale with Agreement to Repurchase. 232. National Banks. 233. Mistake in Taking Interest. 234. Renewal Notes and Mortgages. 235. Contracts Having an Independent Existence. 236. Evidence — Sufficiency. 237. Who May Plead Usury. 238. Waiver of Usury. 239. Burden of Proof. 240. Place of Payment of Interest — Conflict of Laws. 241. Payment may be Controlled by Contract. 242. Computation of Interest — At Stated Periods. 243. The Law of Another State Must be Pleaded. § 2o6. Definition. — Usury is the excess over the legal rate charged to a borrower for the use of money. Originally, the 228 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 206-208 word was applied to all interest reserved for the use of money ; and in the early ages taking such interest was not allowed.^ To constitute usury there must be: 1. A loan, expressed or im- plied ; 2. An understanding between the parties that the money shall be returned ; 3. That a greater rate of interest than is al- lowed by law shall be paid or agreed to be paid ; 4. A corrupt intent to take more than the legal rate for the use of the sum loaned.^ Money paid above the legal rate for the forbearance of an existing debt is usury.^ § 207. Statutory provisions. — The statutory provisions as to the law of usury are frequently changed and modified. Some of the States have no usury laws, and there is no uniformity in the laws of the other States in this regard. In many of the States there is a forfeiture of the usury above the statutory rate; and in other States all usurious contracts are void. In few of the States it is a misdemeanor to take usury.* § 208. Intent is essential to constitute usury. — To charge one with usury he must know of and be a party to the intent to violate the law against usury.^ While intent is essential to con- stitute usury, yet the intent must be deduced from, and de- termined by, the facts. The voluntary taking and reserving a greater interest or compensation for a loan than that allowed by law is per se usurious. So the offense is not ordered dismissed by a want of intent to violate the statute or by giving the trans- action another name than that of a loan.^ 1. Bouvier's L. Diet. 84; Compare Omaha Loan and 2. Miller v. Ins. Co., 118 N. Car. Trust Co. v. Hanson, 46 Neb. 870, 612, 24 S. E. 484, 54 Am. St. Rep. 65 N. W. 1058. See What Law 741; Balfour v. Davis, 14 Oreg. 47; Governs Usurious Contracts. — 17 Roe V. Kiser, 62 Ark. 92, 34 S. W. Harv. L. Review, 568. 534, 54 Am. St. Rep. 288; Tyler on 4. Pingrey on Mortg. 770. Usury, 110; McGuire v. Campbell, 5. Jackson v. Travis, 42 Minn. 58 ni. App **8. 438, 44 N. W. 316; Garvin v. Len- 3. Hathaway v. Hagan, 59 Vt. ton, 62 Ark. 370, 35 S. W. 430. 75, 8 A. 678; Bang v. Windmill Co., 6. Cooper v. Nock, 27 111. 301; 96 Tenn. 361, 34 S. W. 516; Chase Kelley v. Lewis, 4 W. Va. 456; Cul- V. Whitten, 62 Minn. 498, 65 S. W. ver v. Pullman, 59 Hun (N. Y.), 229 §§ 208,209 CONTRACTS IN" VIOLATION OF LAW. Ch. 6 Because interest has been calculated and included in the mortgage debt in excess of the strict legal right, does not make a usurious contract ;^ and an agreement for the highest rate of interest, payable semi-annually or quarterly, is not usurious,* nor is taking the highest rate in advance for a whole year.* An agreement by a borrower upon mortgage to allow the lender to retain part of the land mortgaged after being repaid principal and interest of the loan, if it is part of the mortgage transactions, is usurious, and will not be enforced.^" But the mortgagor may agree to pay the taxes, which may be included with the interest, and the agreement will not be usurious. ^^ § 209. Lending and borrowing of money. — Where the trans- action is not the loaning of money, the question of usury can- not arise. ^^ But if the transaction be really a borrowing and loaning of money at an unlawful rate of interest, no ingenuity can give it a form that will shield it against impeachment and judicial investigation.^^ If the parties understand that more 615, 12 N. Y. S. 663; Fiedler v. Darrin, 50 N. Y. 437 ; Steele v. An- drews, 19 N. J. Eq. 409; Scruggs V. Mort. Co., 54 Ark. 566, 16 g. W. 563; Duvall v. Bank, 7 Gill & J. (Md.) 44; Childers v. Deane, 4 Eand. (Va.) 406. 7. Spencer v. Ayrault, 10 N. Y. 202, 8. Goodrich v. Eeynolds, 31 111. 490, 83 Am. Dec. 240; Meyer v. Muscatine, 1 Wall. (U, S.) 384; Mowry v. Bishop, 5 Paige (N. Y.), 98. 9. Telford v. Garrels, 132 01. 550, 24 N. E. 373; Tholen v. Duffy, 7 Kans. 405 ; Fowler v. Trust Co., 141 U. S. 384, 408, 411, 12 S. Ct. 8; Mitchell V. Lyman, 77 111. 525; Brown v. Mortg. Co., 110 111. 235; Hoyt V. Pawtucket Inst., 110 111. 390. 390; Vahlberg v. Keaton, 51 Ark. 534, 11 S. W. 878, 4 L. R. A. 462, 14 Am. St. Rep. 73; English v. Smock, 34 Ind. 115, 7 Am. Rep. 215; Newell V. Bank, 12 Bush. (Ky.) 57; Polen V. Palmer, 53 111. App. 223; Bank V. Cook, 60 Ark. 283, 30 S. W. 35, 29 L. E. A. 761 and note, 46 Am. St. Rep. 171 and note; Parker v. Cousins, 2 Gratt. (Va.) 372, 44 Am. Dec. 388. 10. Gleason v. Burke, 20 N. J. Eq. 300. See, also, Lombard v. Gregory, 81 Iowa, 569, 47 N. W. 298; Suc- cession of Latchford, 42 La. Ann. 529, 7 So. 628; Southall v. Parish, 85 Va. 403 ; Keagy v. Trout, 85 Va- 390, 7 S. E. 534. 11. Dutton V. Aurora, 114 111. 138, 28 N. E. 461; Compare Hodgdon v. Davis, 6 Dak. 21, 50 N. W. 478. 12. Struthersv.Drexel, 122 U. S. 487, 7 S. Ct. 1293. 13. Gaither v. Clarke, 67 Md. 18, 9 A. 632, 10 A. 309. 230 Ch. G AGREEMENTS IN VIOLATION OF STATUTE. §§ 209-211 than legal interest is taken, no contrivance can cover it, and the real nature of the transaction will be considered ; but if no loaning and borrowing of money is made, the transaction will not be usurious as there can be no basis for usury." §210. Legal interest — Commission. — A loaner of money may receive the legal rate of interest and also a commission for the care and management and sale of property shipped him. Thus a contract between a commission merchant and a dealer in pro- duce, by which the former agrees to advance money at the legal rate of interest to enable the dealer to purchase or carry his produce, and is also to receive a percentage upon the money advanced as a commission for the care, management and sale of the property, is not per se usurious ;^^ the omis is upon the party seeking to impeach the transaction to show a guilty intent and that the contract was to cover usury. ^^ Such question may be submitted to the jury, as such contract is not per se and of neces- sity usurious ; but it does not follow that every contract, usual and customary in its terms, is in all cases to be submitted to a jury with liberty to find it usurious and void upon mere con- jecture or caprice, and without evidence to impeach it, merely because the contract may be made a cover for usury, and imder some circumstances may be invalid for that reason." § 211. Agent of the party loaning. — If the agent of the party loaning the money takes commission without the knowl- edge and consent of the loaner, this is not usury.^ But if the 14. Hartranftv.UTilinger, 115 Pa. 190; Blackburn v. Hayss, 59 Ark. St. 270, 8 A. 244; Drury v. Wolfe, 366, 27 S. W. 240. 34 111. App. 23. 134 111. 294, 25 N. 16. Matthews v. Coe, 70 N. Y. E. 626 ; Tyson v. Rickard, 3 Har. & 230. 2(5 Am. Rep. 583 ; Thomas v. J. (Md.) 109, 5 Am. Dec. 424; Murray. 32 N. Y. 605; Booth v. Swayne v. Riddle, S7 W. Va. 291, Sweezy, 4 Seld. (X. Y.) 280; Smith 16 S. E. 512. V. Marvin, 27 N. Y. 137. 15. Elliott V. Sugg, 115 N. Car. 17. Cockle v. Flack, 93 U. S. 344. 236. 20 S. E. 450; Cockle v. Flack, 1. George v. Security C, 109 Ala. 93 U. S. 344; Norwood V. Faulkner, 548, 20 So. 331; Fowler v. Trust 22 S. Car. 367, 53 Am. Rep. 717; Co., 141 U. S. 385, 12 S. Ct. 8; Woolsey v. Jones, 81 Ala. 88, 4 So. Call v. Palmer, 116 U. S. 98, 6 S. 231 §§ 211, 212 CONTRACTS IN VIOLATION OF LAW. Ch. 6 leaner instructs his agent to take a commission, or knows it and the rate of interest is full legal rate, then such transaction is usurious.^ And if the agent included the commission in the prin- cipal of a note, and takes full legal rate of interest besides, then the transaction is usurious though the loaner did not know of the agent's commission.^ § 212. Discount o£ accommodation paper. — It is commonly held that where a promissory note has been fairly made, and there is no usury between the original parties, so that the payee has acquired a legal right to sue the maker thereon, he may then dispose of it at any rate of discount from its face, and the purchaser will have a right to enforce its full payment against the maker.* In respect to an accommodation note sold or nego- tiated at a greater rate of discount than legal interest, the au- thorities are not uniform. One class of cases holds that the pur- chaser of such note from the payee, being the first party paying anything for it, is therefore the first owner, and that, as the payee before the sale of the note had not acquired a legal right to sue the accommodation maker, the purchaser must pay the full face of the note, or the transaction will be usurious ; that, as between the maker and the payee, the note is without con- sideration and void in the hands of the payee, and becomes valid only upon being negotiated to a bona fide purchaser, and hence a party who buys an accommodation note before it has been used Ct. 301; Whaley v. Mort. Co., 74 Bank v. Scott, 91 Va. 652, 22 Fed. Rep. 73, 20 C. C. A. 306, 42 S. E. 487, 29 L. R. A. 827, 50 Am. U. S. App. 90; Ditmas v. Sackett, St. Rep. 860; May v. Campbell, 7 92 Hun (N. Y.), 381, 36 N. Y. S. Humph. (Tenn.) 450; Salt Marsh v. 690. Bank, 17 Ala. 761; French v. Grin- 2. Fowler v. Trust Co., 141 U. die, 15 Me. 163; Nichols v. Fearson, S. 385, 12 S. Ct. 8; Whaley v. 7 Pet. (U.S.) 103; Mun v. Commis- Mortg. Co., 74 Fed. Rep. 73, 20 C. sion Co., 15 Johns. (N. Y.) 43; C. A. 300, 42 U. S. App. 90. Jackson v. Travis, 4^ Minn. 438, 44 3. Stephens v. Olson, 62 Minn. N. W. 316; Claflin v. Boorum, 122 295, 64 N. W. 898; Cronin v. Olson, N. Y. 385, 25 N. E. 360; Rodecker 60 Minn. 534, 63 K W. 108. v. Littauer, 59 Fed. Rep. 857, 8 4. Robinson v. Smith, 62 Minn. C. C. A. 320, 19 U. S. App. 455. 62, 64 N. W. 90; Lynchberg Nat. 232 Cli. G AGREEMENTS lA' VIOLATION' 0¥ STATUTE. §§ 212-214: for any business purpose stands in the same situation, in re- spect to the defense of usury, as if he were the payee named therein, and this though he had no knowledge that the note was accommodation paper, and supposing it to be business paper." But the better rule is that the defense of usury cannot be set up against the purchaser of an accommodation note, taken at a greater rate of discount than legal interest, unless such pur- chaser has knowledge of tlie character of the paper.^ So, where one buys an accommodation note of the payee, not knowing that it was accommodation paper, but supposing that it was already a valid subsisting security in the hands of the payee, the transaction is not usurious, though a greater discount was al- lowed than legal rate.' § 213. Taking personal property as interest. — Usury can taint a contract where personal property is taken as interest, instead of money. So where a lender receives money or other valuable thing, in any greater sum or value for a loan than the legal rate, which he accepts as interest, it will render the con- tract usurious.^ And this is so whether the property is taken for the purpose of evading the usury law or not.^ § 214. Cash and credit. — A party may take a less amount for property where cash is paid than when he sells on credit, and this will not amount to usury. Hence, when a note is given for S.Williams v. Banks, 11 Md. Jackson v. Fassitt, 33 Barb. (N. Y.) 198; Corcoran v. Bowers, 6 Ohio 645; Middletown Bank v. Jerome, St. 19; Sylvester v. Swain, 3 Allen 18 Conn. 488; Humphrey v. Clark, (Mass), 134; Clark v. Sisson, 22 27 Conn. 381; Dickerman v. Day, N. Y. 312; Carlisle V. Hill, 16 Aia. 31 Iowa, 444, 7 Am. Rep. 156; 398; Holmes v. Williams, 10 Paige Holmes v. Bank, 53 Minn. 350, 55 (N. Y.), 326, 40 Am. Dec. 250 and N. W. 555. note; Powell v. Waters, 17 Johns. 7. Holmes v. Bank, 53 Minn. 350, (N. Y.) 176. 55 X. W. 555. 6. Sherman v. Biackman, 24 III. 1. Sapp v. Cobb, 60 Ark. 367, 30 347; Otto V. Durege, 14 Wis. 571; S. W. 349. Gaul V. Willis, 26 Pa. St. 257; Ram- 2. Cummins v. Wire, 2 Halst. say V. Clark, 4 Humph. (Tenn.) Ch. (N. J.) 73; Low v. Prichard, 244, 40 Am. Dec. 645; Whitwarth 36 Vt. 183; Voorhis v. Staed, 63 V. Adams, 5 Rand. (Va.) 333; Mo. App. 370. 233 §§ 214-216 CONTRACTS IN VIOLATION OF LAW. Oh. 6 the price of goods purchased on a credit, and the rate is more than legal interest, but this method was adopted solely as a means of expressing a difference between cash and credit pric© of the goods, there is no usury.^ If what is called interest, or what is aimed at on the basis of a certain rate of interest, is in fact a part of the purchase-money or price of the article, as, for instance, land, and not a mere cover for a loan or for the forbearance of money, it is not usurious, but is as really a part of the purchase-price for the land as is the prnicipal sum.^ It is neither a present loan, nor is it a forbearance in respect to some debt previously existing, but is a part of the contract price of the thing sold.^ §215. In purchase price of land. — A stipulation in a note for the purchase-money of land calling for more than legal rate is usurious.^ But, in the purchase of, if the vendee agrees to pay as part of the purchase price, a rate of interest on the de- ferred payments in excess of the legal rate, the contract is not usurious.^ And so, where there is an advance in the cash price of land, because credit was given, this is not usury, the advance being part of the consideration, and the vendee executing his notes for the same.^ This was a sale of land, where the vendor was willing to sell for so much at a cash valuation, or for so much on credit. § 216. Bonus for consideration of making the loan. — A bonus paid by the borrower to the lender of money for making a 1. First Nat. Bank v. Mann, 94 4. People's Bank v. Jackson, 43 Tenn. 17, 27 S. W. 1D15, 27 L. R. A. S. Car. 86. 20 S. E. 786, 27 L. R. A. 561 and note, 45 Am. St. Rep. 696; 569 and note, 49 Am. St. Rep. Cutler V. Wright, 22 N. Y. 427. 823. 2. Swayne v. Riddle, 37 W. Va. 5. Reger v. O'Neal, 33 W. Va. 291, 16 S. E. 512. 159, 10 S. E. 375, 6 L. R. A. 427; 3. Hogg V. Ruffner, 1 Black (U. Dykes v. Bottoms, 101 Ala. 390, 13 S.), 115; Crawford v. Johnson, 11 So. 582; Swayne v. Riddle, 37 W. Ind. 258. See, also, Primley v. Va. 291, 16 S. E. 512. Shirk. 60 111. App. 312; Saxe v. 6. Dykes v. Bottoms, 101 Ala. Womack, 64 Minn. 162, 66 N. W. 390, 13 So. 582. See. also, Jackson 269; Hawley v. Kountze, 6 App. v. Morris, 29 S. W. 435, 16 Ky. L. Div. 217, 39 N. Y. S. 897. R. 684. 234 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 216, 21Y loan may make the transaction usurious. And the bonus, in computing, for the purpose of determining whether the loan is usurious, is to be deducted as of the date when it is payable. If payable at the time of the loan, it is to be deducted from the principal as of the date of the loan, and the remainder, or what the borrower receives and retains, is to be taken as the basis for computation.^ So where part of the money loaned is with- held, the borrower paying interest from the time the transaction took place, it is usury, if it resulted in paying more than legal interest.^ But the mere fact that a note is given for an amount in ex- cess of that actually due does not render the note usurious.^ And an agreement to pay a per cent, quarterly or otherwise for the extension of time for the payment of a loan in addition to the legal rate of interest thereon, is usurious notwithstanding the increased interest is called "bank commission." * But where there is no time set for payment, a deduction of a greater rate than the legal interest is not usurious.^ And when it is not a loan a deduction is not usurious.^ In general, if the lender exacts a bonus for loaning the money, besides taking the full legal rate, it is usury.'' But a bonus paid by a borrower to his own agent for procur- ing a loan is no part of the sum paid for the loan, and is not usury, notwithstanding the lender takes full legal interest.* § 217. Antedating a note — Interest payable in advance. — !N^o device to cover up usury will avail. Thus, when parties con- 1. Phelps V. Montgomery, 60 6. Meaker v. Fiero, 145 N. Y. Minn. 303, 62 N. W. 260; Smith v. 165, 39 N. E. 714. Parsons, 55 Minn. 520, 57 N. W. 7. Hewitt v. Dement, 57 111. 510; 311; Anderson v. Smith 108 Mich, Walter v. Foutz, 52 Md. 147; Fan- 69, 65 N. W. 615. ning v. Dunham, 5 Johns. Ch. (N. 2. East River Bank v. Hoyt, 29 Y.) 122; Harris v. Wicks, 28 Wis. How. Pr. 280, 32 N. Y. 119. 198; Stack v. Sperry, 6 Lea 3. Minneapolis Harvest Works v. (Tenn.), 411, 40 Am. Rep. 47; Row- Kaessner, 41 Neb. 710, 60 N. W. 8. land v. Bull, 5 B. Mon. (Ky.) 146. 4. Bowdoin v. Hammond, 79 Md. 8. Goodwin v. Bishop, 145 HI. 173, 28 A. 769. 421, 34 N. E. 47: Dryfus v. Burnes, 5. Philadelphia v. Kelly, 166 Pa. 53 Fed. Rep. 410. St. 207, 31 A. 47. 235 §§ 217-219 CONTRACTS IN VIOLATION OF LAW. Cll. 6 tract for a loan of money at the highest rate of interest, and the note is made to bear interest from date and is dated at a time prior to that when the money is paid to the borrower, as a device to cover usnry, the transaction is tainted with usury.^ But where the loan is transacted through the mails, and a rea- sonable time transpires between the date of the execution of the papers and their final acceptance, there is no usury because the borrower did not have the money at the date of the papers.^ And if the delay is caused by the borrower's own negligence, the contract is not usurious because the money is not paid at the date of the contract.^ The mere payment of interest in advance is not necessarily usurious ;* but an arrangement to pay interest in advance may be such as to be usurious.^ § 218. Hiring or renting securities. — A contract by which a party lends United States bonds, and the borrower agrees to pay over to the owner the interest paid the government thereon, and a per cent, in addition, is not usurious. Such a contract is merely one of renting or hiring, and is as legitimate as will be the hiring of a horse or renting of a house, with the agreement that the party may pledge or sell, but at the same time under- taking, with security, the return of the property in kind to the original owner, or account for its value. ^ § 2ig. Building and loan association. — A building and loan association is an organization created for the purpose of accumu- lating a fund by monthly subscription or savings of its mem- bers, to assist in building or purchasing for themselves real estate by loaning to them the requisite money from the funds of the society upon good security, l^early every State in the 1. Vail V. Van Doren, 45 Neb. inson, 35 S. W. 275, 18 Ky. L. R. 450, 63 N. W. 787. 78. 2. Daley v. Investment Co., 43 5. Hiller v. Ellis, 72 Miss. 701, Minn. 517, 45 N. W. 1106. 18 So. 95, 41 L. R. A. 707 and 3. Rose V. Munford, 36 Neb. 148, note. 54 N. W. 129. 6. Marshall v. Riee, 85 Tenn. 502, 4. Warren Deposit Bank v. Rob- 3 S. W. 177. 236 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. § 219 Union has a general statute relating to the incorporation of such associations, which statutes generally differ in some de- gree. But these associations are not generally subject to the usury laws by reason of excess of premiums contracted to be paid by their members to them, or loans to them, over the rate of interest permitted by law.^ But to entitle mutual building and loan associations to the benefit of this exemption from the usury laws, they must conduct their business in good faith, and loan their funds only to bona fide members. They cannot loan their funds to strangers, upon usurious terms ; otherwise they would become simply associations of legalized usurers, availing themselves of the privileges and exemptions of the statute, in- tended only for strictly mutual building and loan associations. The sale of stock may be a mere cover for usury.^ And when they are so conducted that the borrower's contract requires of him only lawful interest, it is not usury.^ Usury cannot exist between the parties bearing one to another the intimate relation existing between members of a building and loan association.'* Such loans are not rendered usurious by a premium which each borrower agrees to pay for the loan since such premium is neither a prepayment of interest nor a deduc- tion of money belonging to the member, but merely represents the agreed discount of the future dividends of his share of stock. ^ When there is actual usury in the transaction, the association is responsible like other parties.® 1. Hawkins v. Association, 96 2. City Loan Co. v. Cheney, 61 Ga. 206, 22 S. E. 711; Goodrich v. Minn. 83, 63 N. W. 250. Association, 96 Ga. 803, 22 S. E. 3. Natches Build. & Loan Asso. 585; Central Build. & Loan Asso. v. Shields, 71 Miss. 63, 15 So. 743. V. Lampson, 60 Minn. 422, 62 N. See, also, Granite State Provident W. 544. See, also, Hensel v. Asso- Association v. Monk (N. J.), 30 ciation, 85 Tex. 215, 20 S. W. 116; At. Rep. 872. International Build. & Loan Asso. 4. Conservative Build. & Loan V. Abbott, 85 Tex. 220, 20 S. W. Asso. v. Cady, 55 111. App. 469. 118; Reeve v. Association, 56 Ark. 5. Sullivan v. Association, 70 335, 19 S. W. 917, 18 L. R. A. 129 Miss. 94, 12 So. 590; Red Bank and note; Succession of Latchford, Mut. Build. & Loan Asso. v. Patter- 42 La. Ann. 529, 7 So. 628. son, 27 N. J. Eq. 223. 6. Henderson Build. & Loan Asso. 237 §§ 220-222 CONTRACTS IN VIOLATION OF LAW. Oh. 6 § 220. Building associations must keep within the statute. — A corporation which makes its loans to members in the approved form of building association loans, but whose aims and nature do not bring its property within the statute as a building as- sociation, is not allowed to enforce reservations lawfully per- mitted to such institutions.^ And, hence, the transaction be- tween a quasi building and loan association and its borrowing stockholder is simply a loan, and is usurious, where he is liable, under certain circumstances, to pay more than the amount loaned and legal interest.^ § 221. Premiums and exchange.— The sale of securities at a premium cannot subject the party to an action to recover back the premium on the ground of usury ; whether the premium was computed in the contract of sale at a certain percentage in excess of the legal rate for the time past, or stated at a gross sum, or as compound, is immaterial.^ The payment of exchange is not usury, unless it appears that this allowance was a mere device on the part of the mortgagee to evade the usury laws.^ And paying premium on gold in buying an exchange to pay a mortgage held in a foreign country, where gold is the basis of currency, is not usurious.^ § 222. Compound interest. — The law, as a general rule, will not allow the recovery of compound interest. There are two ex- ceptions to this rule : 1. In relation to interest bearing coupons attached to the principal note or other securities for the pay- ment of money. Such coupons, when payable to bearer, have, V. Johnson, 88 Ky. 191, 10 S. W. 87, St. 67; Kupfert v. Association, 30 3 L. R. A. 289 and note; Burling- Pa. St. 465; Rhoads v. Association, tonMut.L. Asso. v. Heider, 55 Iowa, 82 Pa. St. 180. 424, 5 N. 518, 7 N. 686; City Loan 8. Meroney v. Association, 116 Asso. V. Gallagher, 25 Ohio St. 208. N. Car. 882, 21 S. E. 924, 41 Am. See, also, Southern Building & Loan St. Rep. 841. Asso. V. Harris, 98 Ky. 41, 32 S. W. 1. Culver v. Bigelow, 43 Vt. 249. 261; United States, etc. Co. v. 2. Williams v. Hance, 7 Paige Scott, 98 Ky. 695, S4 S. W. 235. (N. Y.), 581. 7. Williams v. Association, 45 3. Oliver v. Shoemaker, 35 Mich. Md. 546; Jarrett v. Cope, 68 Pa. 464. 238 CJi. G AGREEMENTS IX VlOLATIOiS OF STATUTE, §§ 223-224 by mercantile iisuage, legal effect of promissory notes. The interest of such coupons is not compounded indefinitely. 2, In case the interest has become due and remains unpaid, the debtor may then agree to have the accrued interest added to the prin- cipal and it becomes interest bearing.^ When the borrower has compounded the interest a promise by him to pay such com- pound interest is valid if supported by a consideration.^ But many courts hold that the adding of the interest every year to the principal, is usury.^ § 223. Statutory Provisions. — The statutes of many States control as to compounding interest, and must be consulted. In Arkansas, when a payment falls short of paying the interest due at the time of making such payment, the balance of interest must not be added to the principal.'* In California the interest, by written agreement, if not paid when due, may be added to the principal f in Louisiana it is otherwise.^ In Idaho compound interest is not allowed to be contracted for in the original agree- ment.' Interest cannot be compounded in Minnesota.^ § 224. Interest coupons. — Money loaners now generally take notes with coupons attached for the payment of a specified sum at certain periods, and if not paid at the time stated, the amount stated in the coupon draws interest from the date of its ma- turity.^ Such coupons are in effect promissory notes and draw 1. Bowman v. Neely, 151 111. 37, v. Hill, 67 N. Y. 162, 23 Am. Rep. 37 N. E. 840; Leonard v. Williams, 99- 23 111. 377; Stickney v. Moore, 108 3. Waring v. Cunliff, 1 Ves. Jr. Ala. 590, 19 So. 76. See, also, 99; Chambers v. Goldwin, 9 Ves. Gross V. Coffey, 111 Ala. 468, 20 254; Thornbill v. Evans, 2 Atk. So. 428; Stewart v. Petree, 55 N. 330; Leith v. Irwin, 1 Myl. & K. Y. 621, 14 Am. Rep. 352; Crider v, 277. Association, 89 Tex. 597, 35 S. W. 4. Dig. of Stat. 1884, sec. 4738. 1047; Scott V. Saflford, 37 Ga. 384; 5. Civil Code, 1885, sec. 1919. Columbia County v. King, 13 Fla. 6. Rev. Code, 1870, art. 1939. 251; Hill v. Meeker, 23 Conn. 592; 7. Rev. Stat. 1887, see. 1265. Lewis Invest. Co. v. Boyd, 48 Neb- 8. Laws of 1879, ch. 66. 604, 67 N. W. 456. 9. Columbia County v. King, 13 2. Tillotsson v. Nye, 88 Hun (N. Fla. 451; Gelpcke v. Dubuque, 1 Y.), 101, 34 N. Y. S. 606; Young Wall. (U. S.) 175, 206; Harper v. 239 §§ 224-226 CONTRACTS IN VIOLATION OF LAW. Oh. 6 interest after maturity.^" Hence, overdue coupons bear interest after maturity at the lawful rate of interest, and taking such interest is not usury. ^^ However, interest upon interest, as rep- resented by coupons, must be allowed or refused, as may be required by the statute of the State.^^ § 225. Recovering back usurious interest. — In many States, money paid as usurious interest is allowed to be recovered back on the theory that the law regards the payment as made under duress.^ But the general rule is that money voluntarily paid, with full knowledge of all the material facts, cannot be recov- ered back, even though made upon illegal consideration, which the law will not enforce.^ In Illinois an agreement after in- terest is due to make it a principal sum does not render the transaction usurious;^ but in a usurious contract the debtor is entitled to have all payments on account of usury, applied in diminution of the principal unpaid.* § 226. Computation of interest — Compounding. — Taking the legal rate of interest in advance is not usury. ^ But where the Ely, 70 111. 581; Hollingsworth v. 321; Stickney v. Moore, 108 Ala. Detroit, 3 McLean, C. C. 472. See, 599, 9 So. 76. also. Bowman v. Neely, 151 111. 37, 1. Albany v. Abbott, 61 N. H. 37 N. E. 840. 158. 10. Miller v. Railroad Co., 40 Vt. 2. Caldwell v. Wentworfn, 14 N. 399, 94 Am. Dec. 413; Gelpcke v. H. 431. Dubuque, 1 Wall. (U. S.) 175; 3. Haworth v. Huling, 87 111. 23; Hollingsworth v. Detroit, 3 Mc- Gilmore v. JBissell, 124 111. 488, 17 Lean, C. C. 472; Mercer County v. N. E. 758; Drury v. Wolfe, 134 111. Hubbard, 45 111. 139; Johnson v. 294, 25 N. E. 626; Thayer v. Star Stark County, 24 EL 75; Bennson Mining Co., 105 111. 540; McGovern V. Savage, 130 111. 352, 22 N. E. v. Ins. Co., 109 111. 151; Bowman 838. V. Neely, 151 111. 37, 37 N. E. 840. 11. United States Mortg. Co. 4. Fowler v. Trust Co., 141 U. S. V. Sperry, 138 U. S. 313, 11 S. Ct. 384, 408, 411, 12 S. Ct. 8. 321. 5. Bank v. Cook, 60 Ark. 288, 46 12. Ohio V. Frank, 103 U. S. 697; Am. St. Rep. 171 and note, 30 S. W. Phinney v. Baldwin, 16 111. 108, 61 35, 29 L. R. A. 761 and note; Polen Am. Dec. 62; Chicago v. Allcock, 86 v. Palmer, 53 111. App. 223; Hoyt 111. 384; United States Mort. Co. v. Pawtucket Inst., 110 HI. 390; V. Sperry, 138 U. S. 313 ,11 S. Ct. Bloomer v. Mclnerney, 30 Hun (N. 240 Cb. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 226-228 accrued annual interest is added to the principal and then on that amount the interest is paid in advance, that is usury.® But the adding in to the principal the overdue interest, and giving a note for the whole amount, without taking interest in ad- vance upon the whole, is not usury f but this matter is some- times regulated by statute, which must be consulted. § 227. Taxes and expenses. — An agreement to pay taxes on the mortgaged debt in addition to the highest legal rate is not usurious.^ So, the payment by the borrower, in addition to full legal interest, of the costs of drawing the mortgage and examin- ing the title to the security does not constitute usury.^ Where a note has been withheld or antedated in order to evade the usury law, this is usury. ^'^ But if the completion of the contract had been caused by tlie delay of the mail, then it would not be usury.^^ § 228. Commission and discount. — An agent of the borrower may take a commission for loaning money, from the borrower, where the loaner is not interested, the legal rate of interest be- ing the highest allowed;^ but an executor cannot be such an Y.), 201: Mitchell v. Lyman, 77 1. Dreyer v. Goldy, 62 111. App. 111. 525. 347; Stansell v. Trust Co., 96 Ga. 6. First Nat. Bank v. Davis, 108 207, 22 S. E. 898 ; New England 111. 633. Mort. Co. v. Baxley, 44 S. Car. 81, 7. McGovern v. Ins. Co.. 109 111. 21 S. E. 444; Gray v. Van Blarcom, 151. 29 N. J. Eq. 454; Spring v. Reed, 8. Banks v. McClellan, 24 Md. 28 N. J. Eq. 345; Van Wyck v. 62, 87 Am. Dec. 594. Watters, 81 N. Y. 352; Guggen- 9. Kidder v. Vandersloot, 114 111. heimer v. Grieszler, 81 N. Y. 293; 133, 28 N. E. 460; Ammor.dson v. Rogers v. Buckingham, 33 Conn. 81 ; Ryan, 111 111. 506; Ellenbogen v. Eslava v. Cranipton, 61 Ala. 507; Griflfey, 55 Ark. 268, 18 S. W. 126; Phillips v. Roberts, 90 111. 952; New Daley v. Association, 43 Minn. 517, England Mort. Co. v. Gay, 33 Fed. 45 N. W. 1100; Dayton v. Moore, Rep. 636; Estevez v. Purdy, 66 N. 30 N. J. Eq. 543. Y. 446; Whaley v. Mort. Co., 74 10. Bar r V. Church (N. J.), 10 At. Fed. Rep. 73, 20 C. C. A. 306, 42 Rep. 287; Vail v. VanDoren, 45 U. S. App. 90; Jordan v. Hum- Neb. 450, 63 N. W. 787. phrey, 31 Minn. 495, 18 N. 450; 11. Daly V. Invest. Co., 43 Minn. Board v. Millword, 51 Ark. 548, 11 517, 45 N. W. 1100. S. W. 88; Pass v. Security Co., 241 §§ 228, 229 CONTRACTS IN VIOLATION OF LAW. Oh. 6 agent.^ When the agent has the general oversight of his prin- cipal's money, and loans it without any special authority, and in soich sums and at such times as he pleases, and is only re- stricted as to the least amount of interest to be taken, if the agent exacts usury upon his loans by taking full legal rate of interest and also a commission, the principal is affected and the transaction is usurious.^ An agent generally may loan money and take commission where there is no arrangement to this effect between the agent and the lender.'* But when the principal ratifies the agent's usurious contract, then the principal becomes affected with the usury and must' abide the consequences.^ Even the lender himself may charge for extra services and expenses rendered or incurred by him in good faith, for to constitute usury, the charge must be for the loan or forbearance.* § 229. Attorney's fees. — Generally a stipulation in a mort- gage or a note for the payment of attorney's fees in addition to 66 Miss. 365, 6 So. 239; Hughes V. Griswold, 82 Ga. 299, 9 S. E. 1092; Telford v. Garrells, 132 III. 550, 24 N". E. 573; Ginn v. Security Co., 92 Ala. 135, 8 So. 388; Davis V. Sloman, 27 Neb. 877, 44 N. W. 41 ; Weems v. Mort. Co., 86 Ga. 760, 13 S. E. 89. 2. Landis v. Saxton, 89 Mo. 375, 1 S. W. 359. 3. Payne v. Newcomb, 100 111. 611; Fowler v. Tiust Co., 141 U. S. 384, 12 S. Ct. 8 ; Banks v. Flint, 54 Ark. 40, 14 S. W. 709, 16 S. W. 477, 10 L. R. A. 459 and note; Hall V. Maudlin, 58 Minn. 137, 59 N. W. 985, 49 Am. St. Rep. 492; Horkan V. Nesbit, 58 Minn. 287, 60 N. W. 132; Bliven v. Lydecker, 130 N. Y. 102, 28 N. E. 625; Kemmitt v. Adamson, 44 Minn. 121, 46 N. W. 327; Stein v. Swenson, 44 Miun. 218, 46 N. W. 360. 4. Hoyt V. Pawtucket Inst., 110 111. 390, 398; Telford v. Garrells, 132 111. 550, 554, 24 N. E. 573; San- ford V. Kane, 133 111. 199, 205, 24 N. E. 414, 8 L. R. A. 724, 23 Am. St. Rep. 602 ; Ginn v. Security Co., 92 Ala. 135, 8 So. 388; May v. Flint, 54 Ark. 573, 16 S. W. 575; Weems v. Mort. Co., 86 Ga. 760, 13 S. E. 89. 5. Bliven v. Lydecker, 130 N. Y. 102, 28 N. E. 625; Hyatt v. Clark, 118 N. Y. 563, 23 N. E. 89; Hoyt V. Thompson, 19 N. Y. 207. 6. Dayton v. Moore, 30 N. J. Eq. 543; Atlanta Min. Co. v. Gwyer, 48 Ga. 9; Horton v. Thur- ber, 85 N. Y. 530 ; Matthews v. Coe, 70 N. Y. 239; Ammondson v. Ryan, 111 111. 506; De Forest v. Strong, 8 Conn. 513; Compare Jackson v. May. 28 111. App. 305. 242 CJl. 6 AGREEMENTS IN VIOLATION OF STATUTE. 229, 230 legal interest, in case the holder is compelled to sue, does not render the morti^age or note usurious,^ provided the fee is rea- sonable.^ Attorney's fees are not allowed in all the States. Ken- tucky, Ohio, Michigan, and North Carolina hold that the stipu- lation in a mortgage for attorney's fees is void as against public policy.^ It is generally held reasonable attorney's fees may be provided for in case the mortgagee has to foreclose the mortgage. Such a contract of itself does not make the contract usurious.* But tlie statute cannot be avoided by any shift or device which may be resorted to by the parties, in order to cover np a usuri- ous contract.^ But a provision in a mortgage for the " expenses of the sale " does not include attorney's fees." § 230. Sale of security — Innocent purchaser. — As a general rule a mortgage once issued may be sold without affecting an innocent purchaser in any of the consequences of taking usuri- ous interest.^ The mortgagee may sell the mortgage at a dis- count before taken, if it be not a plan to cover up usury.^ And 1. Williams v. Flowers, 90 Ala. 136, 7 So. 439, 24 Am. St. Rep. 772 ; Fowler v. Trust Co., 141 U. S. 384, 408, 411, 12 S. Ct. 1, 7, 8; Siegel V. Drumm, 21 La. Ann. 8; Weath- erly v. Smith, 30 Iowa, 131, 6 Am. Rep. 663; Hunter v. Linn, 61 Ala. 492 ; Billingsbey v. Dean, 1 1 Ind. 331; Huling v. Drexell, 7 Watts (Pa.), 126; American Freehold Land-lNIortg. Co. v. Whaley, 63 Fed. Rep. 743; Mumford v. Tolan, 54 111. App. 471; Smith v. Silvers, 32 Ind. 321; National Bank v. Danforth, 80 Ga. 55, 7 S. E. 546: Barton v. Bank, 122 111. 352, 13 N. E. 503. 2. Hunter v. Linn, 61 Ala. 492; Clawson v. ]\Iunson. 55 111. 309. 3. Thomasson v. To\vnsend. 10 Bush (Ky.), 114, 19 Am. Rep. 58; Dow V. Updike, 11 Neb. 95; Rilling V. Thompson, 12 Bush (Ky.), 310; State V. Taylor, 10 Ohio, 378; Tins- ley V. Harkins, 111 N. Car. 346, 16 S. E. 325, 32 Am. St. Rep. 801; Van Marter v. McMillan, 39 Mich. 303; Leavans v. Bank, 50 Ohio St. 591, 34 N. E. 1089; Williams v. Rich, 114 N. Car. 235. 4. Barton v. Bank, 122 111. 352, 13 N. E. 503; Telford v. Garrels, 132 111. 550, 24 N. E. 573; Clawson V. Munson, 55 111. 394; Mclntyre v. Yates, 104 111. 491; Haldeman v. Ins. Co., 120 111. 390, 11 N. E. 526. 5. Leonard v. Patton, 106 111. 99, 104. 6. Thomas v. Jones, 84 Ala. 302, 4 So. 270. 7. Jockson V. Travis, 42 Minn. 438, 44 N. W. 316; Sickles v. Flan- agan, 79 N. Y. 224; Smith v. Cross, 00 N. Y. 549; Dunham v. Cudlipp, 94 N. Y. 129; Mix v. Ins. Co., 11 Ind. 117. 8. Armstrong v. Freeman, 9 Neb. 11, 2 N. 353. 243 §§ 230', 231 CONTKACTS IN VIOLATION OF LAW. Oh. 6 a corporation may sell its bonds at a discount and not violate the law as to nsury.^ Where a trust deed gives power to sell the property for any amount that may be due on the second note, a trustee sale is not rendered invalid by the existence of usury in the loan, when the sum for which the land is sold is less than the amount due after deducting the usurious interest. ^*^ A purchaser under a junior mortgage has the right to remove the lien of the prior usurious mortgage by discharging only so much of the debt secured thereby as the law recognizes as valid ; and this right is not defeated by a conveyance subse- quently made by the mortgagor to the prior mortgagee. -^^ But to be an innocent purchaser, he must take the note or security in the regular course of busines^^.^" § 231. Absolute sale with agreement to repurchase. — Usury cannot be covered up by a pretended sale of land with a lease back to the vendor.-^ So when land is sold and the trans- action is apparently a conditional sale, it will not be sustained as such unless it clearly appears that it is not a scheme to cover usury.^ In Georgia, all titles to property made as a part of a usurious contract are void. So when a deed is infected with usury it is void as title. And if void as title, it cannot have effect as an equitable mortgage, because unless title passes an equitable mort- gage is not created by the conveyance of the land.^ 9. Traders' Nat. Bank v. Wood- Merklin, 65 Md. 579, 5 A. 544; Mor- lawn Manuf. Co., 90 N. Car. 298, 3 rison v. Markham, 78 Ga. 161, 1 S. S. E. 363. E. 425. 10. Ammondson v. Ryan, 111 111. 2. Gleason v. Burke, 20 N. J. Eq. 506. 300. 11. Maloney v. Echart, 81 Tex. 3. McLaren v. Clark, 80 Ga. 423, 281, 16 S. W. 1030. 7 S. E. 230: Broach v. Smith, 75 12. Freden v. Eichards. 61 Minn. Ga. 159: Morrison v. Markham, 78 490, 63 N. W. 1081; Stephens v. Ga. 161, 1 S. E. 4'25 : Baggett v. Olson, 62 Minn. 295, 64 N. W. 898. Trulock, 77 Ga. 369, 3 S. E. 162; 1. Gaither v. Clark, 67 Md. 18, Pope v. Marshall, 78 Ga. 635, 4 S. 8 A. 740; Grand United Order v. E. 116. 244 Ch. G AGREEMENTS IN VIOLATION OF STATUTE. § 232 § 232. National banks. — It is the general law that national banks may reserve and receive whatever interest is allowed by the law of the State regulating the matter.^ So, national banks may take as high a rate of interest as is allowed either to in- dividuals or banks of issue in the various States of their organi- zation.^ In all the States where there is a statute fixing the rate of interest, the only limitations upon these rights must be found in the State statutes.^ But the penalty prescribed by the national bank statute for usurious discounting paper by na- tional banks, is exclusive, and that imposed by State statute cannot be applied and enforced.* The national banking law^ provides that the party paying usurious interest to a national bank may recover twice the amount of interest paid ; but this rule does not apply to discounting negotiable papers. The ac- tion to recover twice the amount of the usury must be com- menced within two years. The bank may apply the usurious in- terest on the principal of the note unless the maker has applied it on the interest,® and the usury is retained in the debt, no mat- ter how many renewals have been made, and the debt may re- cover twice the amount of all the interest paid.' And jurisdic- tion is vested in the State as well as in the federal court.^ 1. La Dow V. Bank, 51 Ohio St. 91 U. S. 29; Bank v. Pratt, 115 234, 37 N. E. 11; Wiley v. Star- Mass. 539, 15 Am. Rep. 138; Bank buck, 44 Ind. 298, 15 Am. Rep. 235 ; v. Garlinghouse, 22 Ohio St. 492, Newell V. Bank, 12 Bush (Ky.), 10 Am. Rep. 751; Davis v. Randall, 57; Rockwell v. Bank, 4 Colo. App. 115 Mass. 547; Higley v. Bank, 26 562, 36 P. 905. Ohio St. 75, 20 Am. Rep. 759 ; Flor- 2. National Bank v. Bruhn, 64 ence R. R., etc., Co. t. Bank, 106 Tex. 571, 53 Am. Rep. 771; Hinds Ala. 364, 17 So. 720. V. Marmolejo, 60 Cal. 229 ; Farmers' 5. Rev. Stat. U. S. section 5198. Nat. Gold Bank v. Stover, 60 Cal. 6. Brown v. Nat. Bank, 169 U. 387; Guild v. Bank, 4 S. Dak. 566. S. 41 G, 420, 18 S. Ct. 390. 57 N. W. 499. 7. Colgin v. Bank, 16 Tex. App. 3. Rockwell v. Bank; 4 Colo. 346, 40 S. W. 634; Citizens' Nat. App. 562, 36 P. 905. Bank v. Domiell (1904), 25 S. Ct. 4. Barnet v. Bank, 98 U. S. 555 ; 49. Stephens v. Bank, 111 U. S. 197, 4 8. Endres v. Bank, 66 Minn. 257, S. Ct. 336, 337; Bank v. Dearing, 68 N. W. 1092. 245 §§ 233, 234 CONTRACTS IN VIOLATION OF LAW. Oil. 6 § 233. Mistake in taking interest. — Where illegal interest is taken by mistake, it is not usury. Thus, where interest upon a loan was computed at a usurious rate and included in the principal of a promissory note, which by its terms bore interest only from maturity, if it appears that illegal interest was taken by mistake, the contract is not usurious;'* because there was no intent in making and receiving a note to provide for the pay- nient of the illegal rate of interest.^*' § 234. Renewal notes and mortgages. — Every renewal not© given for a usurious loan of money is subject to the defense of usury between the original parties and purchasers with notice.^ And where a new note is given at the maturity of an old one and includes interest on the loan to date at a usurious rate, the renewal note is tainted with usury though the original note was not usurious.^ And so a mortgage which is given to secure a pre-existing debt, which is tained with usury, will be vitiated by the original indebtedness.^ If a party takes a renewal mortgage without knowledge of the taint of usury in the original, he will be protected.* But it is not usury for one to loan money to a debtor who uses it in paying his usurious debt to his creditor.^ 9. Brown v. Bank, 86 Iowa, 527, Bank v. Orchard, 39 Neb. 485, 58 53 N. W. 410; Garvin v. Linton, 62 N. W. 144. Ark. 370, 35 S. W. 430, 37 S. W. 2. McDonald v. Beer, 42 Neb. 569. 437, 60 N. W. 868 ; Parsons v. Bab- 10. Tyler on Usury, 103; Lloyd cock, 40 Neb. 119, 58 N. W. 726. V. Scott, 4 Pet. (U. S.) 205; McEl- 3. Bell v. Lent, 24 Wend. (N. Patrick v. Hicks, 21 Pa. St. 402; Y.) 230; Berry v. Thompson, 17 Price V. Campbell, 2 Call (Va.), Johns. (N. Y.) 436; Vickery v. 110, 1 Am. Dec. 535; Smythe v. Dickson, 35 Barb. (N. Y.) 96. See, Allen, 67 Miss. 146, 6 So. 627; also, McCraney v. Alden. 46 Barb. Bearce v. Barstow, 9 Mass. 45, 6 (N. Y.) 272; Cope v. Wheeler, 41 Am. Dec. 25; Bevier v. Covell, 87 N. Y. 303; Exley v. Berryhill, 37 N. Y. 50; Tyson v. Richard, 3 Har. Minn. 182, 33 N. W. 567. & J. (Md.) 109, 5 Am. Dec. 424; 4. Kilner v. O'Brien, 14 Him (N. Gibson v. Stearns, 3 N. H. 185; Y.), 414; Sherwood v. Archer, 10 McFarland v. Bank, 4 Ark. 44, 37 Hun (N. Y.), 73; Jenkins v. Lewis, Am. Dec. 761; Henry v. Sanson, 2 25 Kans. 479; Coon v. Spicer, 65 Tex. Civ. App. 150, 21 S. W. 69. N. Car. 401. 1. McDonald v. Aufdengarter, 41 5. Wilson v. Harvey, 4 Lans. (N. Neb. 40, 59 N. W. 762; Exeter Nat. Y.) 507. Sre, also. Hann v. De- 246 Cll. 6 AGREEMENTS IX VIOT.ATIO.N OK STATUTE. §§ 234-236 And notes given to a third party for money to be applied in payment of other notes which are usurious are not themselves usurious,® provided it is not a guise to cover up usuryJ § 235. Contracts having an independent existence. — Where one of several and independent loans is usurious, the taint does not adhere to the others, though all were between the same parties at the same time, and secured by the same mort- gage.« If a usurious agreement is independent of the loan and mort- gage, and not a condition of the loan, and capable of being sus- tained without reference to them, either as a sale on considera- tion or as a gift, it may be enforced.^ iVnd a valid mortgage is not affected by a subsequent usurious agTeement.^*' Obligations and securities having an independent existence, and free from usury, are not affected by the statute, although the subject of a contract tainted with usury. A valid and sub- sisting debt is not destroyed because included in a security or made the subject of a prohibited contract. Although formally satisfied and discharged, and the security surrendered, it may be revived and enforced in case the new security is avoided.^^ § 236. Evidence — Sufficiency. — A fair preponderance of evi- dence is only necessary to establish the fact of usury.^^ But the law presumes that the loan was not usurious, and proof that a kater (N. J.). 20 At. Rep. 657; 441. See, also, Ciim v. Post, 41 Hendrickson v. Godsey, 54 Ark. 155, W. Va. 397, 23 S. E. 613. 15 S. W. 113; Trible v. Nichols, 53 8. Jackson v. May, 28 111. App. Ark. 271, 13 S. W. 796, 22 Am. St. 305; Crippen v. Heermance. 9 Rep. 190. Paige (X. Y.), 211. 6. Vaught V. Kider, 83 Va. 659, 9. Gleason v. Burke, 20 N. J. 3 S. E. 293, 5 Am. St. Rep. 285; Eq. 300. Cottrell V. Southwick. 71 Iowa, 50, 10. Allison v. Schmitz. 31 Hun 32 N. W. 22; Trimble v. Thorson, (X. Y.), 106. 80 Iowa, 246, 45 N. W. 742 ; Brown 11. Patterson v. Birdsall, 64 N". Y. V. Bank, 86 Iowa, 527, 53 K W. 294, 21 Am. Rep. 609; Smith v. 410. Hollister, 14 X. J. Eq. 153. 7. Luekens v. Hazlett, 37 Minn. 12. Phelps v. Montgomery, 60 .Aiinii. 303, 62 X. W. 260. 247 §§ 236, 237 CONTRACTS IN" VIOLATION OF LAW. Oil. 6 bonus or commission in addition to the highest legal rate of interest authorized has been exacted by an agent of the prin- cipal does not raise a presumption of usury. ^^ But where a con- tract is tainted with usury on its face, it will take clear proof to show that usury was not intended.^* § 237. Who may plead usury. — One class of decisions holds that the plea of usury as a defense is personal to him from whom the usury has been exacted, his privies in blood, estate or contract,^ so a subsequent purchaser cannot set it up.^ So, one not a party to the contract cannot attack it on account of usury.^ But where several persons purchase a track of land and give their joint note and mortgage for the purchase-money, and then one of them buys the whole interest of the others, he may plead usury to the whole note, and is not limited in his plea to one- third of it, he being liable for the whole debt.^ If one loans money at usurious rates and the borrower pays the usury agi'eed upon, and the lender deposits the money so received in the bank, the bank cannot set up the fact that the money was obtained through usury, in defense of a suit to re- cover the deposits.^ Another line of decisions holds that not only the party who 13. Greenfield v. Monaghan, 85 2. Ready v. Huebner, 46 Wis. Iowa, 211, 52 N. W. 193; Barthell 692, 1 N. W. 344, 32 Am. Rep. 749; V. .Jensen, 86 Iowa, 736, 53 N. W. Darst v. Bates, 95 111. 493; Sellers 124. V. Botsford, 11 Mich. 59; Butts v. 14. Henry v. McAllister, 93 Ga. Broughton, 72 Ala. 294; Union 667, 20 S. E. 66. Nat. Bank v. Bank, 122 111. 510, 14 1. Holladay v. HoUaday, 13 N. E. 859; Lamoile County Nat. Oreg. 523, 11 P. 260, 12 P. 821; Bank v. Bingham, 50 Vt. 105, 28 Phillips V. Ogle, 21 D. C. 199; Hill Am. Rep. 490 and note; Cheney v. V. Taylor, 125 Mo. 331, 28 S. W. Dunlap, 27 Neb. 401, 43 N. W. 178. 599; People's Bank v. Jackson, 43 3. Hill v. Taylor, 125 Mo. 331, S. Car. 86, 20 S. E. 786, 49 Am. St. 28 S. W. 599. Rep. 823; Moses v. Association, 4. People's Bank v. Jackson, 43 100 Ala. 465, 14 So. 412; Fenno v. S. Car. 86, 20 S. E. 786, 49 Am. St. Sayre, 3 Ala. 458; Porter v. Bank- Rep. 823. ing Co., 40 Neb. 274, 58 N. W. 721; 5. Porter v. Banking Co., 43 Neb, Chapins v. Mathol, 91 Hun, 565, 274, 58 N. W. 721. 36 N. Y. S. 835. 248 Ch. G AGKEEMENTS IN VIOLATION OF STATUTE. §§ 237, 238 makes a usurious contract; but any person who is seized of his estate and vested with his rights, where he has assumed the pay- ment of the debt, may interpose the defense of usury, although a mere stranger cannot.^ Under this class of cases a judgment creditor of a mortgagor may plead usury,^ So any one in legal privity under this doctrine with a mortgagor may set up this defense.^ The law in force at the time of bringing the suit will con- tinue in force as to the relief afforded by it.^ One who volun- tarily pays unlawful interest upon a usurious contract cannot recover it back by suit.^" § 238. Waiver of usury. — The general rule is that for one to avail himself of the plea of usury he must set it up, or he will be considered to have waived it. A mortgagor may waive usury, and he and those in privity with him cannot avail themselves of this defense ; as where he sells the land subject to the mort- gage, the purchaser cannot set up usury in the mortgage note as a defence. ^^ So, a mortgagor is estopped to set up usury when he sells his equity of redemption subject to the mortgage, which grantee assumes as part payment, and such estoppel binds grantee.^^ And a mortgagor who has conveyed the mortgaged land to the mortgagee, in consideration of a release from per- sonal liability on the mortgaged debt cannot afterward attack ■ ■ I 6. Westerfield v. Bried, 26 N. J. 8. Shufelt v. Shufelt, 9 Paige Eq. 357; Mason v. Lord, 40 N. Y. (N. Y.), 137, 37 Am. Dec. 381; 476; Pearsall v. Kingsland, 3 Edw. Stein v. Swensen, 44 Minn. 218, 46 (N. Y.) 195. X. W. 360. 7. Stein v. Swensen, 44 Minn. 9. Edmunds v. Bruce, 88 Ya. 218, 46 N. W. 360; Carow v. Kelly, 1007, 14 S. E. 840. 59 Barb. (N. Y.) 239; Thompson v. 10. Kirkpatrick v. Smith, 55 Mo. Van Vechten, 27 N. Y. 568 ; Gunni- 389, Ranson v. Hays, 39 Mo. 445. son V. Gregg, 20 N. H. .100; Speng- 11. Stiger v. Burt, 111 111. 328; ler V. Snapp, 5 Leigh (Va.), 478; Log-Cabin Permanent Build. Asso. Chaffe V. Wilson, 59 Miss. 42; v. Gross, 71 Md. 456, 18 A. 896; Greene v. Tyler, 39 Pa. St. 361; Fulford v. Keerl, 71 Md. 397, 18 A. Compare Powell v. Hunt, 11 Iowa, 663. 430; Gaither v. Clarke, 67 Md. 18, 12. Essley v. Sloan, 116 111. 391, 8 A. 740. 6 N. E. 449. 249 §§ 238-240 CONTRACTS IN VIOLATION OF LAW. Oh. 6 the mortgage on the ground of usury, since the conveyance con- stitutes a voluntary" payment of the entire debt.^^ § 239. Burden of proof. — The burden of proof is on the party alleging;" he must establish usury by a clear preponder- ance of the evidence. ^^ In a mortgage for purchase^money, the fact that the sum secured is greater than that named in the con- sideration of the conveyance to the mortgagor, with interest, is no evidence of usury.^^ Under the Illinois statute, a inortagor in defending may avail himself of the defense of usury before tender of the amount legally due." § 240. Place of payment of interest — Conflict of laws. — Where the rate of interest in the State in which the contract is made, and in the State in which it is to be performed, differ, the parties may contract for the rate at either place.^ The rights of parties to a contract are to be judged of ])y that law which they intended, or, rather, by which they may justly be presumed to have bound themselves.^ The law of the country where the contract is made governs as to the nature, the obligation, and the interpretation of it,^ 13. Mason v. Pierce, 142 111. 331, Co., 99 Ga. 87, 24 S. E. 848; Under- 31 N. E. 503. wood v. Mortg. Co., 97 Ga. 238, 14. Puterbaugh v. Fariell, 73 111. 24 S. E. 847; Craven v. 213; Kihlholz v. Wolff, 103 111. Bates, 96 Ga. 78, 23 S. E. 362. 202 ; Martin v. Johnson, 84 Ga. 481, 15. Phelps V. Montgomery, 60 20 S. E. 1082; Osborne v. Bank, Minn. 303, 62 N. W. 2G0; Hotel Co. 175 Pa. St. 494, 34 A. 858; Mott V. Wade, 97 U. S. 13; Conover v. v. Rowland, 85 Mich. 561, 48 N. W. Van Mater, 18 N. J. Eq. 481; New 638; Smith v. Parsons, 55 Minn. England Mort. Sec. Co. v. Gay, 33 520, 37 N. W. 311; Hubbell v. Ins. Fed. Rep. 636. Co., 95 Tenn. 585, 32 S. W. 965; 16. Vesey v. Ackington, 16 N". H. Wittkowski v. Harris, 64 Fed. Rep. 479. 712. 17. Clark v. Finlon, 90 111. 245; 2. Lloyd v. Giubert. 6 Best & Tooke V. Newman, 75 111. 215. S. 100; Central Trust Co. v. Bur- 1. Nickles v. Asso., 93 Va. 380, ton, 74 Wis. 329, 43 N. W. 141. 25 S. E. 8; Aimstead v. BIythe 3. Peninsular, et(\ Co. v. Shand, (Miss.), 20 So. 298; Hill v. Mortg. 3 Moore, P. C. N. S. 272, 290. 250 Ch. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 240, 241 unless the contracting parties clearly appear to have had some other law in view.'* Where a proposition to loan money was accepted by the lender in another State where he resided and where the contract was, by its terms to be performed, the contract is governed by the laws of that State.^ Loans made in other States may be at the rate of interest allowed by the State where the contract or loan is made, although such rate is in excess of that fixed by the law of the loaner's residence.® But a note void in the State where it was executed, for usury, cannot be enforced in another State though it would not have been usurious if made in the latter State.' § 241. Payment may be controlled by contract,— Theparties may contract where the payment of the (^n^e secured shall be made. Thus, the parties may agree that tht -^ebts shall be paid in a State other than where the contract is luade, and in such case the place where the contract is to be fulfilled will govern, as to the legal effect of the contract.^ In case of a mortgage, if the mortgagee resides in the State where the land lies, and the mortgagor in another State, if no place of payment is named, then the law of the mortgagee's State will govern.^ The parties 4, Cox V. United States, 6 Pet. 6. Sheldon v. Hactun, 91 N. Y. (U. S.) 172; Scudder v. Bank, 91 124; Tilden v. Blair, 21 Wall. (U. U. S. 406; Pritchard V. Norton, 106 S.) 241; Scudder v. Bank, 91 U. U. S. 124, 1 S. Ct. 102; Lamar v. S. 406. 412; Pratt v. Adams, 7 Micou, 114 U. S. 218, 5 S. Ct. 857; Paige (N. Y.), 615: Wayne County Watts V. Camors, 115 U. S. 353, Savings Bank v. Low, 81 N. Y. 566, 362, 6 S. Ct. 91; Liverpool Steam 37 Am. Rep. 533. Co. V. Ins. Co., 129 U. S. 397, 453, 7. McGarry v. Nicklin, 110 Ala. 9 S. Ct. 480. 559, 17 So. 726, 55 Am. St. Rep. 40 5. Bank v. Gibson, 60 Ark. 269, and note. 30 S. W. 39. See, also. United 1. Slaeum v. Pomery, 6 Cranch States Mort. Co. v. Sperry, 138 U. (U. S.) 221; Duncan v. Helm,, 22 S. 313, 11 S. Ct. 321; Newman v. La. Ann. 418; Fitch v. Remer, 1 Kershaw, 10 Wis. 333; Mills v. Flippen, C. C. 15. Wilson, 8 Pa. St. 118; Cope v. 2. Mills v. Wilson, 88 Pa. St, Wheeler, 41 N. Y. 303; Dobbin v. 118; Pingrey on Mort. 796. Hewitt, 19 La. Ann. 513; Cubbedge V. Napier, 62 Ala. 518. 251 § 241 CONTRACTS IN VIOLATION OF LAW. Clh. 6 may stipulate for interest in either State, so long as it be not a plan to cover up a usurious transaction.^ But if made payable in another State to cover up usury, the debt will be declared usurious.^ When the contract does not control, in determining what law governs the true inquiry is as to the intention of the parties. The fact that the contract would not be held invalid by the laws of the State where the land lies where the mortgagor resides, and where the money is intended to be used, furnishes ground for the presumption that the law there will govern as intended by the parties.^ So, a loan made in New Hampshire, upon land in the State, may be made payable in New York, and at a higher rate than allowed by the New Hampshire law.® In respect to mortgages the law of the place of contract, or of the place of performance, determines the question of usury irrespective of the place where the land is situated.'' Con- tracts are to be governed by the law of the place of performance, and, if the interest allowed at the place of performance is higher than that permitted at the place of contract, the parties may stipulate for the higher interest without incurring the penalty of usury. And so, if the rate of interest be higher at the place of contract than at the place of performance, the parties may lawfully contract in that case also for the highest rate. These rules, however, are subject to the qualification that the parties act in good faith, and that 3. Townsend v. Riley, 46 N. H. 5. Newman v. Kershaw, 10 Wis. 300; Peck v. Mayo, 14 Vt. 33, 38, 333; Richards v. Bank, 12 Wis. 39 Am. Dec. 205; Martin v. John- 697; Vliet v. Camp, 13 Wis. 208; son, 84 Ga. 481, 10 S. E. 1092; Chapman v. Robertson, 6 Paige (N. Mott V. Rowland, 8'5 Mich. 56, 48 N.), 627, 31 Am. Dec. 264 and note. N. W. 638; Smith v. Parsons, 55 6. Townsend v. Riley, 46 N. H. Minn. 520, 57 N. W. 311; Wittkow- 300. ski V. Harris, 64 Fed. Rep. 712. 7. Campion v. Kille, 14 N. J. 4. Cope V. Wlieeler, 41 N. Y. Eq. 229; DeWolf v. Johnson, 10 303; Williams v. Fitzhugh, 37 N. Wheat. (U. S.) 367; Cotheal v. Y. 444; Lockwood v. Mitchell, 7 Blydenburgh, 1 Halst. (N. J.) 17, Ohio St. 387. 631 ; Dolman v. Cook, 14 N. J. Eq. 56. 252 Oil. 6 AGREEMENTS IN VIOLATION OF STATUTE. §§ 241-243 the form of the transaction is not adopted to disguise its real character.* g 242. Computation of interest — At stated periods. — Where the payments are in installments with interest at certain times, the interest begins from the making of the contract, and the interest falls due on the specified intervals.^ In case of a mortgage, if it provides that the whole debt shall fall due if the interest is not paid when due, the mortgagee can enforce the payment of the interest alone or the whole debt at his election.^" When no payments have been made on the mortgage, the in- terest must be computed from the date of the note until the rendition of the decree. It must not then be compounded.^^ A settlement and payment of a debt, with compound interest, where there has been contract to pay interest at stated periods, or to pay interest in that manner, is a usurious transaction.^^ § 243. The law of another State must be pleaded. — In set- ting up the usury law of another State as a defense, it must be averred and proved as a matter of fact.^ The defense of usury not having been made, the court should not declare a contract made in another State usurious, although upon its face it bears a rate of interest in excess of that allowed by the law of the State where the suit is brought.^ The manner of enforcing the remedy is not binding upon the 8. Gelpcke v. Dubuque, 1 Wall. 12. Ward v. Bandon, 1 Heisk. (U. S.) 175, 206; Hollingsworth v. (Tenn.) 490. Detroit, 3 McLean, C. C. 472; Dun- 1. Camp v. Randall, 81 Ala. 240, lap V. Wiseman, 2 Disney (Ohio), 2 So. 287; Klinck v. Price, 4 W. 398. See, also, Clark v. Iowa City, Va. 4, 6 Am. Rep. 268; Campion 20 Wall. (U. 8.) 583; Genoa v. v. Kille, 14 N. J. Eq. 229; Hosford Woodneff, 92 U. S. 502; Amy v. v. Xichols, 1 Paige, (N. Y.), 220; Dubuque, 98 U. S. 470, '473. Dolman v. Cook, 14 N. J. Eq. 56; 9. Conners v. Holland, 113 Mass. Andrews v. Torrey, 14 N". J. Eq. 50: Hastings v. Wiswall, 8 Mass. 355, 27 Am. Dec. 63. 455. 2. Reiff v. Bakken, 36 Minn. 333, 10. Waples V. Jones, 62 Mo. 440. 31 N. W. 348. 11. Barker v. Bank. 80 111. 96. 253 § 243 CONTEACTS IN VIOLATION" OF LAW. Oh. 6 courts of other States.^ And when the court can use his discre- tion, he may refuse to allow the statute of another State, as to the contract, to be set up, where he is of the opinionthat such statute is unconscionable.* The defendant should file such a plea as the law of the foreign State prescribes.^ 3. Matthews v. Wason, 6 Fed. 4. Corning v. Ludlum, 28 N. J. Rep. 461. See, also, Wheelock v. Kq. 398. Lee, 04 N. Y. 242; Bissell v. Kel- 5. Bowman v. Miller, 25 Gratt. logg, 65 N. Y. 432. (Va.) 331, 18 Am. Rep. 686. 254 CHAPTER VII. Wagers aud Gaxaing Contracts. AKTICLE I. Wagers in General. Section 244. Wagers — Definition. 245. Liability of Wagers at Common Law. 246. In the United States. 247. Statutory Provisions. § 244. Wagers — Definition. — A wager is a bet; a contract by which two or more parties agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event.^ Or it is a promise to pay money or to deliver property upon the de- termination or ascertainment of an uncertain event or fact, the consideration for the promise being either a present payment or transfer by the other party, or a promise to do so upon the event or fact being determined or ascertained in a particular way.^ Or it is a contract conditional upon an event in which the parties, have no interest except that which they create by wager.^ But Leake's definition is not broad enough, because parties may make a wager on matter in which they are in- terested.* It may be defined as an agreement between parties, differing as to an uncertain fact f or a forecast of a future event, that on the transpiring of what will disclose the truth, a designated 1. Bouvier's L. Diet. 4. Anson on Cont. 173. 2. Hampden v. Walsh, 1 Q. B. 5. Goode v. Elliott, 3 Term R. Div. 189. 693; Pugh v. Jenkins, 1 Q. B. 631. 3. Lenke on Cont. 377. 255 §§ 244, 245 CONTRACTS IN VIOLATION OF LAW. Ch. 7 sum of money or other tiling shall be transferred from one who is found to be in the wrong to the other who is ascertained to be in the right.'' If from the terms of the engagement one of the parties may gain but cannot lose and the other may lose but cannot gain, and there must be either a gain by the one or a loss by the other according to the happening of the contingency, it is a gaming contract. Thus, a merchant who gives to a designated class of customers an opportunity to secure by means of a nickel-slot machine any article of value additional to that for which such customers have paid, is a gaming device, and against the statute as to gaming.^ § 245. Liability of wagers at common law. — Wagers or wag- ering contracts upon indifferent subjects are valid at com- mon law.^ But all wagers which tended to a breach of the peace, or to injure the feelings, character, or interests of third per- sons, or which are against the principles of morality, or of sound policy, were void at common law.^ In England it is held that contracts, although wagers, are not void at common law, and that the statute has not made them illegal but only non-enforceable.^ But, in the United States, all wagering contracts are held to be illegal and void as against public policy.* 6. Bishop on Cont. 530. liott, 3 Term R. 693; Da Costa v. 7. Meyer v. State, 112 Ga. 20, Jones, 2 Cowp. 734. 37 S. E. 96, 51 L. R. A. 496, 81 Am. 3. Thacker v. Hardy, 4 Q. B. St. Rep. 17. This was a slot ma- Div. 685, 8 and 9 Vict. c. 109, sec. chine used by a cigar merchant. 18; Fitch v. Jones, 5 El. & B. 238. 1. Goode V. Elliott, 3 Term Rep. 4. Dickson v. Thomas, 97 Pa. St. 693; Jones v. Randall, 1 Cowp. 37; 278; Gergory v. Wendell, 40 Mich. Da Costa v. Jones, 2 Cowp. 734; 432; Lyon v. Culbertson, 83 111. 33, Bimn V. Riker, 4 Johns. (N. Y.) 25 Am. Rep. 349; Melchert v. Tele- 427, 4 Am. Dec. 292; Bernard v. graph Co., 3 McCreary, C. C. 527; Taylor, 23 Oreg. 416, 39 P. 968, 37 Barnard v. Backhaus, 52 Wis. 593, Am. St. Rep. 693 and note, 18 L. R. 6 N. 252, 9 N. 595; Kingsbury v, A. 859 and note. Kirwan, 77 N. Y. 612; Story v. Sol- 2.4 Kent's Com. 466; Green- oman, 71 N. Y. 420; Love v. Harvey, hood's Pub. Pol. 226; Goode v. El- 114 Mass. 80; Irwin v. Williar, 110 U. S. 499, 4 S. Ct. 160. 256 Cb. 7 WAGERS AND GAMING CONTRACTS. §§ 240, 247 § 246. In the United States. — The law is interpreted differ- ently in many of the United States as to the legality, at common law, of wagering contracts. Here wagering contracts are void by the common law, and contracts which are void at common law, because they are against public policy, like contracts which are prohibited by statute, are illegal as well as void. They are prohibited by law because they are considered vicious, and it is not necessary to impose a penalty in order to render tbem illegal.^ But the rule in the United States is not uniform, and in some States wagers have been enforced.^ § 247. Statutory provisions. — The States have enacted laws making all gambling contracts either void, or both illegal and void. By the English statute^ it is enacted that any sum or value exceeding £100 lost in playing at any game, or in betting on the players, shall not be recoverable, and that any contract or security given for the same shall be void. Another statute provides that securities for money lost in playing at games, or betting on the players, or knowingly advanced for such purposes, shall be void, and that the loser of £10 or more, after paying it, may recover it back. A later statute,^ repealed the act of Anne so far as regarded the avoidance of securities as specified in that act, and provides that they shall thenceforth be taken to have been given originally upon an illegal consideration. An- other statute* enacts that all contracts, whether by parol or in 5. Bishop V. Palmer, 146 Mass 469, 16 N. E. 299, 4 Am. St. Rep 339; Gibbs v. Gas Co., 130 U. S 396, 9 S. Ct. 553; Harvey v. Mer ritt, 150 Mass. 1, 22 N. E. 49. 5 L R. A. 200 and note, 15 Am. St. Rep 159; Love v. Harvey, 114 Mass. 80: West V. Holmes, 26 Vt- 530; El dred v. Malloy. 2 Colo. 320, 25 Am McLaughlin, 6 Whart. (Pa.) 176; Rice V. Gist, 1 Strob. (S. Car.) 82; Wilkinson v. Towsley, 16 Minn. 299, 10 Am. Dec. 139. 6. Cothran v. Ellis, 125 111. 496, 16 N. E. 646; Campbell v. Richard- son, 10 Johns. (M". Y.) 406; Dewees v. Miller, 5 Harr. (Del.) 347; Trenton Ins. Co. v. Johnson, Rep. 752; Wheeler v. Spencer, 15 24 N. J. L. 576; Kirkland v. Ran- Conn. 28; Bernard v. Taylor, 23 den, 8 Tex. 10, 58 Am. Dec. 94; Oreg. 416, 39 P. 968, 18 L. R. A. .Johnson v. Russell, 37 Cal. 070. 889 and note, 39 Am. St. Rep. 693 1. 16 Car. 11, ch. 7. and note; Stoddard v. Martin, 1 R. 2. 9 Anne, ch. 14. L 1, 19 Am. Dec. 643: Lucas v. Har- 3. 5 and 6 Wm. IV, ch. 41. per, 24 Ohio St. 328; Edgall v. 4. 8 and 9 Vict., ch. 109. 257 §§ 247, 248 CONTKAOTS IN VIOLATION OF LAW. Oh. 7 writing, by way of gaming or wagering, shall be mill and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made, pro- vided that this statute shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or con- tribute, for or towards any plates, prizes, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise. This act repeals the statute of 16 Charles and Anne, but has no effect on the act of 5 and 6 William, as to securities. The statutes of the various States differ consider- ably and must be consulted in many cases to know what the law is. But all of them bear considerable resemblance to the Eng- lish. AETICLE II. BoAED OF Trade Dealings. Section 248. Dealing in Futures — When Valid. 249. Options — Futures — Margins. 250. Corners in Grain on Board of Trade. 251. Brokers. 252. Designation of Transaction by the Parties. 253. Construction of Gambling Laws. 254. Intent — Deal in Futures. 255. Selling Commodities not in Existence. 256. Parol Evidence. 257. Rights of Innocent Holder of Note Given on Option Contract. § 248. Dealing in futures — When valid. — Stock exchanges were created because the business requirements made them necessary. Without them those that have products to sell and those that wished to buy would have to spend their time in seeking customers. They are labor-saving concerns, logical, inevitable, and absolutely required for the expansion of trade and commerce of the civilized world. They are necessary to the business world as improved machinery to the manufactur- ing and farming operations. They are legitimate institutions. 258 Ch, Y WAGERS AND GAMING CONTRACTS. § 248 Their misuse by gamblers does not condemn them. Every in- vention of man for the amelioration of the race may be diverted, in some particulars, from legitimate channels. All, or nearly all, of the great accumulations of property in the hands of capi- talists were obtained in speculation, sometimes legal, sometimes illegal. To assert that the gambling element dominates the stock or produce exchange, is erroneous and far from the facts. Legitimate speculation even in staple products which everybody uses is sometimes burdensome and the States and Congress have enacted laws to regulate such manipulation. These laws will be treated in their proper places in this chapter. It is well settled that purchases or sales of commodities of any kind for future delivery are valid when not against a statute, although the seller may not own the commodity at the time the contract is made, and will have no other means of per- forming than by going into market and making the requisite purchase when the time for delivery arrives.^ Marginal con- tracts which are void by statute, have no reference to trans- actions between commission merchants, their customers and patrons.^ And the mere purchase of stocks on a margin is not necessarily a gambling contract.' Stocks may be bought on credit, just as flour or sugar or any other commodity, and the credit may be for the whole price or for a part of it, and with security or without it. "Margin" is security, nothing more, and the only difference between stocks and other commodities is that as stocks are more commonly made the article of gambling speculation than some other things, and courts are disposed to look more closely into stock transac- tions to ascertain their true character. If they are real purchases and sales, they are not gambling though they are done partly or wholly on credit.^ 1. Western Union Telegraph Co. 2. Connor v. Black, 119 Mo. 126, V. Littlejohn, 72 Miss. 1025, 18 So. 24 S. W. 184. 418; Warren v. Scanlon, 59 111. 3. Peters v. Grim, 149 Pa. St. App. 138; Hatch v. Douglas, 48 163, 24 A. 192, 34 Am. St. Rep. Conn. 116, 40 Am. Eep. 154. 599. 4. Hopkins v. O'Kane, 169 Pa. St. 478, 32 A. 429. 259 §§ 248, 249' CONTRACTS IN VIOLATION OF LAW. Ch, 7 The law against the sale of stocks on margin does not prevent any legitimate transfer of stock, whether through the agency of a broker or otherwise, nor any legitimate and bona fide pledge of stock certificates as security for borrowed money, whether borrowed for the purpose of paying for the stock or any other purpose ; and where such is not only the form, but the substance of the contract, the inhibition of the statute does not apply.^ § 249. Options — Futures — Margins. — A contract whereby one of the parties is to have the option to buy or sell at a future time a certain commodity, on the understanding of both that there is to be no delivery of the commodity, the party losing to pay to the other the difference in the market price simply, is by common law, as well as by statutes, in nearly all the States, a gambling contract, or wager upon the future price of the com- modity, and is, therefore, void.^ If, in a formal contract for the purchase and sale of com- modities to be delivered in the future at a fixed price, it is actu- ally agreed that the commodities shall not be delivered and the price paid, but that, when the appointed time for performance arrivesi, a settlement shall be made by a payment in money of the difference between the contract price and the market price of the commodities at that time, this is a wagering contract. But if it is agreed that the contract shall be performed accord- 5. Shcehy V. Shinn, 103 Cal. 325, 70 N. Y. 202, 26 Am. Rep. 573; 37 P. 397; Scales v. State (Tex.), Kahn v. Walton, 46 Ohio St. 195, 81 S. W. 947. 20 N. E. 203; Lester v. Buel, 49 1. Board of Trade v. Kinsey Co., Ohio St. 240, 30 N. E. 821, 34 Am. 121 Fed. Rep. 670; Peterson v.Gur- St. Rep. 556; Harvey v. Merrill, ren, 62 111. App. 163; Cover v. 150 Mass. 1, 22 N. E. 48, 52 L. R. Smith, 82 Md. 586, 34 A. 465; Con- A. 200, 15 Am. St. Rep. 159; Gre- nor V. Black, 132 Mo. 150, 33 S. gory v. Wandell, 39 Mich. 337, 33 W. 783; Walker v. Johnson, 59 111. Am. Rep. 390; Cockrell v. Thomp- App. 448; Pearce v. Rice, 142 U. S. son. 85 Mo. 510; Rumsey v. Berry, 28, 12 S. Ct. 130; Irwine v. Williar, 65 Me. 570; Burt v. Meyer, 71 Md. 110 U. S. 499, 505, 4 S. Ct. 501; 467, 18 A. 746; Stewart v. Schall, Embrey v. Jemison, 131 U. S. 336, 65 Md. 289, 4 A. 399. 9 S. Ct. 776; Bigelow v. Benedict, 260 Ch. 7 WAGEltS AND GAMlWa CONTEACTS. § '249 ing to its terms if either party requires it, and either party shall have a right to require it, the contract is not a wagering contract because one or both parties intend, when the time for perform- ance arrives, not to require performance, but to substitute there- for a settlement by the payment of the difference between the contract price and the market price at that time. To constitute a wagering contract, it is sufficient, whatever may be the form of the contract, that both parties understand and intend that one party shall not be bound to deliver the commodity and the other to receive it and pay the price, but that the settlement shall be made by the payment of the differ- ence in prices." In general, where a person contracts with another to purchase stock for him with the understanding that the stock shall not be delivered and that the only difference in the market price shall be paid or received, the transaction is a wager on future market price and is void under the statute.^ But a future sale and de- livery of a commodity at a fixed price, with a bona fide intention to fulfill the requirement of the agreement, is valid and not a wagering contract.* But a statute invalidating contracts giv- 2. Dunn v. Bell, 85 Tenn. 581. 4 W. 113, 1 Am. St. Rep. 145 and S. W. 41; Pearce v. Foot, 113 111. note; White v. Barber, 123 U. 8. 228, 55 Am. Rep. 414; Flagg v. 392, 8 S. Ct. 221; Tomblin v. Gilpin, 17 R. I. 10, 19 A. 1084; Callen, 69 Iowa, 229, 28 N. W. 573;- Mohr V. Miesen, 47 Minn. 228, 49 Pickering v. Cease, 79 111. 328; Mc- N. W. 862 ; Lawton v. Bletch, 83 Grew v. Produce Exchange, 85 Tenn. Ga. 663, 10 S. E. 353; Kirkpatrick 572, 4 S. W. 38, 4 Am. St. Rep. 771; V. Bonsall, 72 Pa. St. 155; Maxton Lyon v. Culbertson, 83 111. 33, 25 V. Green, 75 Pa. St. 166; Evering- Am. Rep. 349; Johnson v. Kaune, ham V. Meighan, 55 Wis. 354, 13 21 Mo. App. 22. N. 269; Lowry v. Dillman, 59 Wis. 3. Standard Mill Co. v. Flower, 197, 18 N. 14; Cothran v. Ellis, 125 46 La. Ann. 315, 15 So. 16; West v. ni. 496, 16 N. E. 648; Shaw v, Wright, 86 Hun, 436, 33 N. Y. S. Clark, 49 Mich. 384, 13 N. 786. 43 898; Kingsbury v. Kirwan 77 N. Y. Am. Rep. 474; Bullard v. Smith, 612; Story v. Saloman, 71 N. Y. 139 Mass. 492, 2 N. E. 86; Harvey 420; Schreiner v. Orr, 55 Mo. App. V. Merrill, 150 Mass. 1, 22 N. E. 49, 406; Cover v. Smith, 82 Md. 586, 5 L. R. A. 200 and note, 15 Am, St. 34 A. 465 ; Conner v. Black, 132 Mo. Rep. 59; Whitesides v. Hunt, 97 150, 33 S. W. 783. Ind. 191, 49 Am. Rep. 44; Craw- 4. Clewes v. Jamison, 182 U. S. ford V. Spenser, 92 Mo. 498, 4 S. 461, 21 S. Ct. 845. 261 §§ 249, 250 CONTKACTS IN VIOLATION OF LAW. Ck. 7 ing an option to sell or buy, at a future time any commodity, wLetlier delivery is contemplated or not, is not in violation of any constitutional provision.'' This is on the ground that if, by taking all the circumstances that attend the pursuit of a particular vocation, the State thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless an unmistakable infringement of right secured by the fundamental law. Such statute must be deemed a valid law, and as such must be en- forced, though it infringes to a degree upon the property right of citizens, as it prevents option contracts which are wagering. A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. The object of this legislation is to suppress abso- lutely gambling in future sales, and to this extent private rights must be deemed secondary to the public good. A contract which on its face is one of sale with a provision for future delivery, being valid, the burden of proving that it is invalid, as being a mere cover for the settlement of differ- ence rests with the party making the assertion.® And the de- fendant may introduce the charter of a stock exchange to show that it makes only actual sales, and has no right to deal in futures.'' § 250. Corners in grain on board of trade. — Contracts to corner the market in relation to grain or other commodity are made void by statute or are void because against public policy.^ And also a loan for making a corner is void.^ A combination of several parties to enhance the price of grain by making large purchases and preventing a fair selling thereof, whereby an 5. Booth V. Illinois, 184 U. S. 7. Scales v. State (Tex.), 81 S. 425, 22 S. Ct. 425, 186 111. 43, 57 W. 947. N. E. 798, 50 L, R. A. 762, 78 Am. 1. Craft v. McConoughy, 79 111. St. Rep. 229 and note. 346, 22 Am. Rep. 171; Samuels v. 6. Clews V. Jamison, 182 U. S. Oliver, 130 111. 73, 22 N. E. 499. 461, 21 S. Ct. 845. 2. Raymond v. Leavitt, 46 Mich. 447, 9 N. 525. 262 Ch. 7 WAGERS AND GAMING CONTRACTS. §§ 250, 251 immense lot of grain is put into the hands of a firm in the com- bine, and thus forcing up the price of grain in the market, is contrary to public policy and no party to the agreement can maintain an action for services growing out of the transaction.^ Legitimate dealing on the board of trade is as valid as other sales and purchases of grain and such contracts will be enforced by the courts. And where, in a contract, the term " market price " is used, parties will be conclusively held to have had in contemplation an honest market price, and not any fictitious or corner price which might possibly occur upon the market or exchange involved ; or the average market price of the lawful market on the board of trade.* § 251. Brokers. — A broker may negotiate a wagering con- tract without being privy to the illegal intent of the principal parties to it which renders it void, and in such case, being in- nocent of any violation of law, and not suing to enforce an un- lawful contract, has a meritorious ground for the recovery of compensation for services advanced. But when the broker is privy to the unlawful design of the parties, and brings them to- gether for the purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction.^ The weight of authority in the United States is that brokers who knowingly make contracts that are void and illegal as against public policy, and advance money on account of them at 3. Foss V. Cummings, 149 111. N. E. 646; Fareira v. Gabell, 89 353, 36 N. E. 553. Pa. St. 89; Crawford v. Spencer, 4. Waite v. Paud (Chi. Super. 92 Mo. 498, 4 S. W. 713, 1 Am. St. Ct.), 25 Nat. Cor. Rep. 118, 37 Chi. Rep. 745 and note; Lowry v. Dill- Leg. News, 25. man, 59 Wis. 197, 18 N. 4; White- 5. Embrey v. Jemison, 131 U. S. sides v. Hunt, 97 Ind. 191, 49 Am. 336, 9 S. Ct. 776; Harvey v. Mer- Rep. 441; First Nat. Bank v. Pack- rill, 150 Mass. 1, 22 N. E. 410, 5 ing Co., 66 Iowa, 41, 23 N. W. 255; L. E. A. 200 and note, 15 Am. St. Rumsey v. Berry, 65 Me. 570; Rep. 159. See, also, Kahn v. Wal- DeMary v. Bartenshaw, 131 !Mich. ton, 46 Ohio St. 195, 20 N. E. 203; 326, 91 N. W. 647. Cothran v. Ellis, 125 111. 496, 16 263 §§ 251-253 CONTKACTS IN VIOLATION OF LAW. Ch. 7 the request of their principals, cannot recover either the money advanced or their commissions.** And where the purchase or sale of a commodity is adopted as a mode to disguise a wager upon the market price of the com- modity at a future time, the fact that one of the parties as- sumes to make the purchase, or sale, as a commission merchant only, will not alter the relation in which they stand as parties to the wager. Each is in law jxirticeps criminisJ § 252. Designation of transaction by the parties. — The designation given to the transactions hy the parties themselves is not conclusively determinative of their character or of their le- gality.^ Whether a transaction or a series of transactions between a broker and his customer for the purchase of stocks that are not immediately delivered, or of which an immediate delivery is not contemplated, is in contravention of the statute, is a ques- tion to be determined in each particular case, and the circum- stances under which the transaction is had, and the conduct of the parties in reference thereto, will have great influence in determining this fact.^ It is not the purpose of the statute to interfere with legitimate business, or to make void all time con- tracts for the purchase of shares in incorporated companies.^ § 253. Construction of gambling laws. — The court will take judicial knowledge that the object of these statutes was to strike 6. Embrey v. Jemison, 131 U. S. 1. Kullman v. Simmes, 104 Cal. 336, 9 S. Ct. 776; Harvey v. Mer- 595, 38 P. 362. rill, 150 Mass. 1, 2'2 N. E. 419, 5 2. Kullman v. Simmes, 104 Cal. L. E. A. 200 and note; 15 Am. St. 595, 38 P. 302. Eep. 159. 3. Cashman v. Root, 89 Cal. 373, 7. Lester v. Buel, 49 Ohio St. 26 P. 883, 12 L. R. A. 511, 23 Am. 240, 39 N. E. 821, 34 Am. St. Rep. St. Rep. 482. See, also, Hatch v. 556; Kahn v. Walton, 46 Ohio St. Douglas, 48 Conn. 116, 40 Am. Rep. 195, 20 N. E. 203; Pearce v. Foot. 154; Peters v. Grim, 149 Pa. St. 113 111. 228; Conners v. Black, 119 163, 24 A. 192, 34 Am. St. Rep. Mo. 126, 24 S. W. 184; Dows v. 599; Scales v. State (Tex.), 81 S. Glaspel, 4 N. Dak. 257, 60 N. W. W. 947. 60; Pope v. Hanke, 155 HI. 617, 40 N. E. 839, 28 L. R. A. 568. 264 Ch. 7 WAGERS AN1> GAMING CONTRACTS. §§ 253, 254 down a species of gambling in commodities, wherein parties are wont to contract for the purchase of connnodities to be de- livered at a future day, upon the speculation that they would advance in price sufficiently to meet their agreements or pur- chases/ To give effect to this statute it is as much the duty of the courts to see that it is not evaded as that it is not directly violated.'' But there is no warrant for eonstruinu' the statute with any unreasonable strictness. It should be construed justly, to the end that the legislative intention may be accomplished. Legitimate transactions on the board of trade are of the utmost importance in commerce. Such contracts, whether for immedi- ate or future delivery, are valid in law, and receive its sanction and all the support that can be given them. It is against gambl- ing contracts that the law applies, and no subtle construction aught to be adopted to defeat the end of justice.^ § 254. Intent — Deal in futures. — Where the transactions for the delivery and sale of commodities in the future are not made with the intention that any commodity shall be received or de- livered, but that the understanding that each transaction shall be settled by the payment of the difference between the con- tract price and the market price at the time fixed, they are mere wagers or gambling contracts and are void.''^ This intention may be established not merely by the assertion of the parties but by all the attending circumstances of the transactions ;^ and is 4. Cashman v. Root, 89 Cal. 373, 111. 617, 40 N. E. 839, 28 L. R. A. 26 P. 883, 12 L. R. A. 511, 23 Am. 568; Barnard v. Backhaus, 52 Wis. St. Rep. 482. 593, 6 N. 252, 9 N. 595; Crawford 5. Sheehy v. Shinn, 103 Cal. 325, v. Spencer, 92 Mo. 498, 4 S. W. 713, 37 P. 393. 1 Am. St. Rep. 745 and note; First 6. Pearce v. Foote, 113 111. 228, Nat. Bank v. Packing Co., 66 Iowa, 239, 55 Am. Rep. 414. 41, 23 N. W. 255. 1. Jamison v. Wallace, 167 111. 2. Crawford v. Spencer, 92 Mo. 388, 47 N. E. 762, 59 Am. St. Rep. 498, 4 S. W. 713, 1 Am. St. Rep. 302; Schneider v. Turner, 130 111. 745 and note; Pope v. Hanke, 155 28, 22 N. E. 497, 6 L. R. A. 164 and 111. 617, 40 N. E. 839, 28 L. R. A. note; Cothran v. Ellis, 125 111. 196, 568. 16 N. E. 646; Pope v. Hanke, 155 265 §§ 254, 255 CONTEACTS IN VIOLATION OF LAW. Ch. 7 a question for the jury, to be determined by the circumstances of all the evidence.^ In regard to option contracts, they are valid and enforceable. If it is not the intention in making a contract, that any prop- erty shall be delivered or paid for, but that the fictitious sale shall be settled on differences, the contract is void. But if it is the bona fide intention of the seller to deliver, or the buyer to pay, and the option consists merely in the right of delivery within a given time, the contract is valid, and the putting up of margins to cover losses which may accrue from the fluctua- tions of prices is legitimate and proper,* while this is the law, yet several States have passed laws making all option contracts invalid as gambling contracts and, therefore, void. These statutes are constitutional and are given their full force by the courts.^ § 255. Selling commodities not in existence. — At one time it was held that when the vendor had neither the commodities, nor entertained any contract to buy them, at the time of the sale, nor had any reasonable expectation of receiving them by consignment, but intended to go into the market and buy the articles he engaged to deliver, no action could be maintained on such contract. That doctrine has been changed by the au- 3. Hill V. Johnson, 38 Mo. App. L. R. A. 164 and note; Fichter v. 383; Pope V. Hanke, 155 111. 617, 40 Frank, 41 Fed. Eep. 859; Osgood N. E. 839, 28 L. R. A. 568. v. Bender, 75 Iowa, 550, 39 N. W. 4. Bigelow V. Benedict, 79 N. Y. 887, 1 L. E,. A. 655 and note, 82 202; Kirkpatrick v. Bonsai, 72 Pa. Iowa, 171, 47 N. W. 100; Schlee v. St. 155; Hanna v. Ingram, 93 Ala. Guckenkeimer, 179 111. 593, 54 N. 482, 9 So. 621; Pieronnet v. Lull, E. 302; Minnesota Lumber Co. v. 10 Neb. 45, 6 N. 759; Lester v. Buel, Coal Co., 160 111. 85, 43 N. E. 774; 49 Ohio St. 249, 30 N. E. 821, 34 Preston v. Smith, 156 111. 359, 40 Am. St. Rep. 55'6; Godman v. N. E. 949, 31 L. R. A. 529; Burnett Meixel, 65 Ind. 32 ; Clewes v. Jami- v. Baxter, 64 111. App. 544 ; Cor- son, 182 U. S. 461, 21 S. Ct. 845. coran v. Coal Co., 138 111. 390, 28 5. Booth V. Illinois, 184 U. S. N. E. 759; People v. Booth, 186 111. 425, 21 S. Ct. 845, 186 El. 43, 50 43, 57 N. E. 798, 50 L. R. A. 762, L. R. A. 762, 78 Am. St. Rep. 229 184 U. S. 425, 21 S. Ct. 485, 78 and note, 57 N. E. 79 ; Schneider v. Am. St. Rep. 229 and note. Turner, 130 111. 28, 21 N. E. 497, 6 266 Ch. 7 WAGERS AND GAMING CONTRACTS. § 255 thorities of to-day, and now the vendor may contract for tlie sale of an article not in his possession, and such rule is entirely in accordance with public policy.^ If this was not the rule, the mercantile business of the present day could no longer be suc- cessfully carried on if merchants and dealers were unable to purchase that which as to them had no actual or potential ex- istence. A dealer has a clear right to sell and agree to deliver at some future time that which he then has not, but expects to go into the market and buy; and it is equally clear that the parties may mutually agree that there need not be a present delivery of the commodities, but that such delivery may take place at some other time.^ But there is a difference, and a dis- tinction must be made between a contract where there is a bona fide intent to fulfill the agi'eements according to their terms, and those where the difference in the market price is to be paid. If the parties agree at the time of making the contract that no title to any property shall pass or any delivery be made, or when, from the nature of the contract, it must be apparent that the intent of the parties was such that at some future speci- fied time the party losing should pay to the other the difference between the selling price at that time and the time of making the contract, it will be a contract which the law refuses to en- force, for the reason that it is clearly a wager upon the price of the commodity, at some future day.^ 1. Bryan v. Lewis, Ry. & Moody, 3. Whitesides v. Hunt, 97 Ind. 386, a; Walcott v. Heath, 78 III. 191, 49 Am. Rep. 441; Grizwood v. 433; Rumsey v. Berry, 65 Me. 570; Blane, 11 C. B. 526; Yerkes v. Sal- Ashton V. Dakin, 4 Hurl. & N. 867; oman, 11 Hun (N. Y.), 471; Cam- Cole V. Milmine, 88 HI. 349; Logan eron v. Durkheim, 55 N. Y. 425; V. Musie, 81 111. 415; Gregory v. Story v. Salomon, 71 N. Y. 420; Wendell, 39 Mich. 337, 33 Am. Pickering v. Cease, 79 HI. 328; Eep. 390 ; Bona's Appeal, 55 Pa. St. Lyon v. Culbertson, 83 HI. 33, 25 294; Noyes v. Spaulding, 27 Vt. Am. Rep. 349; Bigelow v. Benedict, 420; Hibblewhite v. McMorine, 5 70 N. Y. 202, 26 Am. Rep. 573; Mees. & Wel. 462; Kingsbury v. Maxton v. Gheen, 75 Pa. St. .166; Kirwin, 43 N. Y. Super. 451; Pix- Peabody v. Speyers, 56 N. Y. 230; ley V. Boynton, 79 111. 351. Williams v. Tiedemann, 6 Mo. App. 2. Gregory v. Wendell, 39 Mich. 299; Sampson v. Shaw, 101 Mass. 337, 33 Am. Rep. 340. 145, 3 Am. Rep. 327; Kirkpatrick 267 §§ 256, 257 CONTKACTS IN VIOLATION OF LAW. Ch. 7 § 256. Parol evidence — Charter of corporation. — Parol evi- dence is admissible between the parties when the contract was made ; that the commodity should not be delivered but that only the difference in the market price should be paid or received.* And so the intention that none of the commodity in question should be delivered may be shown by parol evidence, and that the difference in the market price should be adjusted between the parties.^ And a charter of a stock exchange may be offered in evidence to show what powers the exchanges have in selling commodities, and that only actual sales are made.^ § 257. Rights of innocent holder of note given on option contract. — The general rule is that illegality of consideration, even though such consideration grows out of an act prohibited by statute, cannot be set up against the bona fide assignee of a note, unless the statute expressly, or by necessary implication, declares the note to be void.^ That such notes are void between the parties does not admit of discussion.^ Some of the expressions in the text-books are to the effect that, where a statute expressly declares the contract or transac- tion which forms the consideration of the note or bill illegal, it is void in the hands of a bona fide holder for value; but the V. Bonsall, 72 Pa. St. 155; Rudolf 6. Scales v. State (Tex.). 81 S. V. Winters, 7 Nebr. 125; Bartlett W. 947. V. Smith, 13 Fed. Rep. 263; Bar- 1. Pope v. Hanke, 155 111. 617, 40 nard v. Backhaus, 52 Wis. 593, 6 N. E. 839, 28 L. R. A. 568; Daniel N. 252, 9 N. 595; Scales v. State on Neg. Inst. 197, 808, 3 Kent's (Tex.), 81 S. W. 947. Com. 79, 80; Thacker v. Hardy, 4 4. West V. Wright, 86 Hun, 436, Q. B. Div. 685; Cunningham v. 33 jSr. Y. S. 898; Watte v. Wieker- Bank, 71 Ga. 490; Lully v. Morgan, sham, 27 Neb. 457, 43 N. W. 259; 21 D. C. 88; Grizewood v. Blane, Sprague v. Warren, 26 Nebr. 326, 11 C. B. 526. See, also, Lyons v. 41 N. W. 1113, 3 L. R. A. 679 and Hodgen, 90 Ky. 280, 13 S. W. 1076; note; Boyd v. Hanson, 41 Fed. Rep. Compare Shaw v. Clark, 49 Mich. 174. 384, 13 N. 786, 43 Am. Rep. 474; 5. Dwight V. Badgley, 60 Hun Third Nat. Bank v. Harrison, 10 (N. Y.), 144, 14 N. Y. S. 498; Gaw Fed. Rep. 243. V. Bennett, 153 Pa. St. 247, 25 A. 2. Bride v. Clark, 161 Mass. 130, 414, 34 Am. St. Rep. 699; Hentz v. 36 N. E. 745. Jewell, 20 Fed. Rep. 592. 268 Ch. 7 WAGERS AND GAMING CONTRACTS. §§ 257, 258 weight of authority sustains the position that, while such note or bill is void as between the parties to it, it is not void as against the holder for value without notice unless the statute also declares the note or bill itself to be void.^ Illegality is not the circumstance which avoids negotiable securities in the hands of a bona fide holder, because, in the absence of express declara- tion by the legislature that the securities shall be void, it Avill be no defense against a bona fide holder, wdthout notice of the illegality.* To hold such notes void, in the absence of statutory provisions declaring them void, would be materially to obstruct the circulation of negotiable instruments, and thereby seriously embarrass mercantile transactions. They are only void in the hands of an innocent party for value, when the statute declares them void.^ ARTICLE III. Rights Under Gambling Contracts. Section 258. Law of the Place — Gambling Contracts. 259. Recovering Back the Money Lost. 260. Constitutionality of Statute to Recover Back Money Lost in Wagering Contracts. 26 L Action to Recover Back Money Lost in Gambling Contract. 262. Offering a Reward or Premium. 263. Entrance Fee — Competitors in Horse Racing. 264. Bookmaking and Pool Selling. 265. Difference Between Wager and Premium or Reward. § 258. Law of the place — Gambling contracts. — A contract that is valid in one State will be enforced in another State, unless it is against good morals, or is repugnant to the policy or positive institutions and laws of such State.^ The nature, valid- 3. Daniel Neg. Inst. 808; Eagle Backliaus, 52 Wis. 503, 6 N. 252, V. Kohn, 84 111. 292; Chit, on Bills, 9 N. 595; Pope v. Hanke, L55 111. 115, 116. 617. See, also, Vallett v. Parker, 4. Pope V. Hanke, 155 111. 617, 6 Wend. (N. Y.) 615. 40 N. E. 839, 28 L. R. A. 568. 1. Phinney v. Baldwin, 16 111. 5. Traders Bank v. Alsop, 64 108, 61 Am. Dec. 62; Mumford v. Iowa, 97, 9 N. 863; Barnhard v. Canty, 50 111. 370, 99 Am. Dec. 525. 2G9 §§ 258, 259 CONTKACTS IN VIOLATION OF LAW. Cll. 7 itj, and interpretation of contracts must be governed by the laws of the country where made or where they are to be per- formed.^ But the law of any State has no force or validity propria vigore beyond the territorial limits of the State. Whatever extraterri- torial validity it may have is owing to the comity which pre- vails between different States or nations. That comity does not require that such law should be executed when it is against the public policy of the State where the remedy is sought, or in violation of its own laws.^ Hence, the validity of a note in the hands of an innocent holder in the State where the contract was made, does not require the enforcement of such note by the courts of another State, in which the statute makes such notes void even in the hands of a bona fide holder.* If the transactions out of which an alleged debt arose oc- curred in a State, and are within the statute prohibiting gam- bling and both parties are citizens of such State, a court of equity of this State will restrain the creditor from proceeding against the debtor in another State to which the creditor has resorted to evade the laws of the State where the contract was made.^ § 259. Recovering back the money lost. — The right of ac- tion to recover back money paid in pursuance of a wagering contract depends wholly upon the statute; no remedy being al- lowed at common law.® The party having knowingly partici- 2. Evans v. Anderson, 78 111. 37 A. 372, 37 L. K A. 654, 60 Am. 558; Austedt v. Sutter, 30 111. 164; St. Rep. 352. See, also, Bushby v. Yeatman v. Cullen, 5 Blackf. (Ind.) Wunday, 5 Madd. 297; Portarling- 280; WoodruflF v. Hill, 116 Mass. ton v. Soulby, 3 Mylne & K. 104; 310. Keyser v. Rice, 47 Md. 203, 28 Am. 3. Mumford v. Canty, 50 111. Rep. 448; Cole v. Cunningham, 133 370; Faulknor v. Hyman, 142 Mass. U. S. 107, 10 S. Ct. 241; Densmore 53, 6 N. E. 846; Hill v. Spear, 50 v. Neuesheimer, 32 Hun (N. Y.), N. H. 253, 9 Am. Rep. 205 ; Fisher 204 ; Don v. Lippman, 5 CI. & F. 8 ; V. Lord, 63 N. H. 514, 3 A. 927. Liverpool Marine Credit Co. v. Hun- 4. Pope V. Hanke, 155 111. 617, 40 ter, 3 Ch. App. 486. N. E. 839, 28 L. R. A. 568. 6. Weyburn v. White, 22 Barb. 5. Miller v. Gittings, 85 Md. 601, (N. Y.) 82. 2Y0 Ch. 7 WAGEES AND GAMING CONTKACTS. §§ 259-2G2 pated in an illegal transaction, the common law will leave liira without remedy in case of loss.^ But in most of the States a statute has been passed giving the loser the right to recover back the money lost in a wagering contract § 260. Constitutionality of statute to recover back money lost in wagering contract. — The acts relative to Avagering con- tracts in securities and commodities are constitutional/ on the principle that the laws aiming at the suppression of gambling contracts are for the public good. Neither is the objection ten- able that the statute is unconstitutional because it makes cer- tain conduct prima facie evidence of the existence of certain facts.® § 261. Action to recover back money lost in gambling con- tracts. — An action for money had and received, which has been lost in gambling contracts, is an action on contract.^'' And de- mand for the money lost before commencing action is not necessary in order to maintain suit for the recovery of money lost in gaming. ^^ § 262. Offering a reward or premium.— The mere trotting or racing of horses, when done in a proper manner and not in tbe public streets or highways, is not an illegal act at common law ; and it is well settled that betting on the result of a horse race is not illegal at common law.^^ The mere racing or trotting of 7. Crawford v. Spencer, 92 Mo. 10. Crandell v. White, 164 Mass. 498, 4 S. W. 713, 1 Am. St. Rep. 54, 21 N. E. 204. 745 and note; Irwin v. Williar, 110 11. Johnson v. McGregor, 55 111. U. S. 499, 4 S. Ct. 160; Embrey v. App. 530. Jemison, 131 U. S. 336, 9 S. Ct. 12. See Da Costa v. Jones, Cowp. 776; Phelps v. Holderness, 56 Ark. 729; Goods v. Elliott, 3 Term R. 300, 19 S. W. 921; Dows v. Glas- 693; McAllester v. Haden, 2 Camp, pel, 4 N. Dak. 251, 60 N. W. 60. 438; Blaston v. Pye, 2 Wils. 309; 8. Crandell v. White, 164 Mass. Gibbons v. Gouverneur, 1 Denio (IST. 54, 41 N. E. 204. Y.), 170; Van Valkenburgh v. Tor- 9. Holmes v. Hunt, 122 Mass. rey, 7 Cow. (N. Y.) 252; Bunn v. 505, 23 Am. Rep. 381. Riker. 4 Johns. (N. Y.) 426, 4 271 §§ 262-264- CONTRACTS IN VIOLATION OF LAW. Cll. 7 horses, when conducted in a proper place and in a proper man- ner, is not an illegal act. Offering a reward or premium to the successful competitor in such a race or trot is therefore just as lawful as the offering a reward for competing in any other lawful business ;^" but in some States such reward is prohibited in certain cases." § 263. Entrance fee — Competitors in horse racing. — The fact that the parties competing for the reward or premium offered are required to pay something in the way of an entrance fee before they are allowed to compete does not make the transaction a betting or gaming transaction. All competitors for premiums in agricultural societies are required to pay an entrance fee, and these entrance fees go to make up the premiums offered to the competitors.^ It is only when it is shown that the offering a reward or premium to the competitors is a mere subterfuge for bettting and gaming on a horse-race or an uncertain event, that it comes within the law prohibiting betting and gaming.^ Thus, if two men owning trotting horses should contribute equally or otherwise a sum of money, and put it into the hands of some other person for the purpose of offering it as a premium or reward to them only, and to the owner of the horse that should win the race, such a transaction will come under the rule that prohibits betting on a horse or other race.^ § 264. Bookmaking and pool selling. — That bookmaking and pool-selling are each betting upon the horse-race or particu- lar event upon which they are made or sold, is not questioned. In Am. Dec. 292; Campbell v. Rich- 1. People v. Fallon, 4 App. Div. ardson, 10 Johns. (N. Y.) 406. 82, 39 N. Y. S. 865; Biegler v. 13. Porter v. Day, 71 Wis. 296, 37 Trust Co., 62 111. App. 560; Ballard N. W. 259; Harris v. White, 81 N. v. Brown, 67 Vt. 586, 32 A. 485; Y. 532; Misner v. Knapp, 13 Org. Porter v. Day, 71 Wis. 296, 37 N. 135, 9 P. 65, 57 Am. Rep. 6; Delier W. 259. V. Agri. Society, 57 Iowa, 481, 10 2. Gibbons v. Gouverneur, 1 De- N. 872; Alvord v. Smith, 63 Ind. nio (N. Y.), 170. 58. 3. Gibbons v. Gouverneur, 1 14. Bronson Agri. & B. Asso. v. Denio (N. Y.), 170. Ramsdell, 24 Mich. 441. 272 Ch. 7 WAGEKS AM> OAMING CONTRACTS. §§ 264,265 the first, the betting is with the book-makers; in tlie second, the betting is among the purchasers of the pool, the paying a com- mission to the seller/ In Illinois the proviso of the act against book-making and pool selling, that its provisions shall not ap- ply to the actual enclosure of fair or race-track association, confers no such right to carry on book-making and pool-selling within such enclosure,^ § 265. Difference between v^ager and premium or revi^ard. — A bet or wager is ordinarily an agreement between two or more persons that a sum of money or some valuable thing, in con- tributing which all agi-eeing take part, shall become the prop- erty of one or more of them on the happening in the future of an event at the present imcertain, and the stake is the money or thing thus put upon the chance. There is in a wager this element that does not enter into a premium or reward, that each party to the wager gets a chance of gain from others, and takes a risk of his own to them. A premium is ordinarily some valu- able thing, oifered by a person for the doing of something by others, into the competition of which he does not enter. He has no chance of gaining the thing offered ; and if he abides by this offer, that he must loose it and give it over to some of those contending for it is reasonably certain.^ This is the difference, when a premium or prize is offered in good faith to the winner in a competitive contest, which con- test is not unlawful in itself, the transaction is a lawful one, and the person offering the prize or premium will be held liable in the law to make good his offer to the winner.^ 1. James v. State, 63 Md. 242; State v. Falk. 66 Conn. 250, 33 A. Commonwealth v. Simonds, 79 Ky. 913. 618. 3. Harris v. White, 81 N. Y. 532. 2. Swigart v. People, 154 HI. 284, 4. Porter v. Day. 71 Wis. 296, 40 N. E. 432; Chicago v. Brownell, 37 N. W. 259. 146 111. 64, 34 N. E. 595. See, also, § 26f CONTKACTS IN VIOLATION OF LAW. Cll. 7 AETICLE IV. Insueance Conteacts, Section 266. Wagering Contracts of Insurance. 267. Assignment of Policy. 268. Limiting Amount of Debt in Insurance. 269. Benevolent Associations. § 256. Wagering contracts of insurance. — At common law, wagering contracts of insurance were valid, and no insurable interest was necessary to make contract valid.^ But in the United States, irrespective of statute, contracts of insurance with a person who has no insurable interest in the property or life are mere wagering contracts, and are void.^ In order to take the case out of the objection of being a wager policy, it is necessary to show that the insured has some interest in the life of the cestui que vie; so tliat the real purpose is not a wager, but to secure such advantage, supposed to depend on the life of another. Whatever may be the nature of such interest, and whatever the amount insured, it can work no injury to the in- surers, because the premium is proportioned to the amount; and whether the insurance be to a large or small amount, the premium is computed to be a precise equivalent for the risk taken.^ Wagering contracts of insurance have been repudiated generally in the United States.* 1. New York Life Ins. Co. v Stevens v. Warren, 101 Mass. 565; Rosenheim, 56 Mo. App. 27; Dean Beseh v. Ins. Co., 28 Ind. 64; Swee- V. Dicker, 2 Stra. 1250; Kemp v. ney v. Ins. Co., 20 Pa. St. 337; Vigne, 1 Term R. 304; Trenton Ins. Fowler v. Ins. Co., 26 N. Y. 422; Co. V. JoTmson, 24 N. J. L. 576; Crotty v. Ins. Co., 144 U. S. 621, 12 Buchanan v. Ins. Co., 6 Cow. (N. S. Ct. 749. Y.) 318; Clendening v. Church, 3 3. Loomis v. Ins. Co., 6 Gray Caines (N. Y.), 141; Lord v. Dall, (Mass.), 396; Ky. L. & C. Ins. Co. 12 Mass. 115, 117, 7 Am. Dec. 38 v. Hamilton, 63 Fed. Rep. 93, 11 and note; Dalby v. Life Assur. Co., C. C. A. 42, 22 U. S. App. 386. 15 C. B. 365. 4. Cammack v. Lewis, 17 Wall. 2. Loomis v. Ins. Co., 6 Gray ( U. S.) 642; Crotty v. Ins. Co., 144 (Mass.), 396; Lord v. Dall, 12 U. S. 621, 12 S. Ct. 749. Mass. 115, 7 Am. Dec. 38 and note; 274 Ch. 7 WAGERS AND GAMING CONTRACTS. §§ 267, 268 § 267. Assignment of policy. — It is generally held that where a policy is valid at its inception, it may be assigned to one not having an interest in the life of the insured, where not used to cover up a wagering contract.^ The rule gathered from the decisions is that where one takes out a policy upon his own life as an honest and bona fide transaction, and the amount insured is made payable to a person having no interest in the life, or where such policy is assigned to one having no interest in the life, the beneficiary in the one case and the assignee in the other may hold and enforce the policy if it was valid in its in- ception, and the policy was not procured or the assignment made as a contrivance to circumvent the law against betting, gambling and wagering policies.^ But there is respectable opposition to this doctrine, and it is held that the assignment of a policy to a party not having an insurable interest is as objectionable as the taking out of the policy in his name, and such policy is then void.^ § 268. Limiting amount of debt in the insurance. — In case of a creditor and debtor, the policy cannot be limited to the amount of the debt. If it was otherwise the creditor would be compelled to lose whatever sums he might be required to pay in effecting the insurance and paying premiums. The bene- 1. Nye V. Grand Lodge, 9 Ind. Iw v. Ashley, 3 Sim. 149; Bur- App. 131: Classey v. Ins. Co., 84 singer v. Bank, 67 Wis. 75, 30 N. Hun (N. Y.), 360, 32 N. Y. S. 335; \V. 290, 58 Am. Rep. 848 and note; Olmstead v. Keyes, 85 N. Y. 593; Murphy v. Reed, 64 Miss. 014, 1 S. Houston V. Merrifield, 51 Ind. 24. W. 761. 19 Am. Rep. 722; St. John v. Ins. 2. Olmstead v. Keyes, 85 N. Y. Co., 13 N. Y. 31, 64 Am. Dec. 529; 593; Classey v. Ins. Co., 84 Hun Valton V. Ins. Co., 20 N. Y. 32 ; ( N. Y. ) , 350, 32 N. Y. S. 335. Mutual Life Ins. Co. v. Allen, 138 3. Warnock v. Davis, 104 U. S. Mass. 24, 52 Am. Rep. 245; Eckel 4(;2: Cammack v. Lewis, 15 Wall. V. Renne. 41 Ohio St. 232; Martin (U. S.) 643; Missouri Valley L. V. Stubbins, 120 111. 387, 18 N. E. Ins. Co. v. Sturges, 18 Kan. 93, 26 057, 9 Am. St. Rep. 620: Fitzgerald Am. Rep. 671; Bosye v. Adams, 81 V. Ins. Co., 56 Conn. 116, 13 A. 673, Ky. 368; Franklin L. Ins. Co. v. 17 A. 411, 7 Am. Rep. 288; Clark Hazzard, 41 Ind. 121; Crotty v. V. Allen, 11 R. I. 430; Ritter v. Ins. Co., 144 U. S. 621, 12 S. Ct. Smith, 70 Md. 260, 16 A. 890; Ash- 749. 275 §§ 268, 269 CONTRACTS IN VIOLATION OF LAW. Cll. 7 ficiarj takes the chances of all future contingencies.^ In Penn- sylavania creditors insured their debtor, a healthy man of forty- two years of age, in the sum of $3,000, to protect a debt of about $100. The expectancy of life of the insured was twenty-six years, and the assessment and annual dues during such time would have, together with the interest, amounted to $4,336, and the court held that it was not a gambling transaction and that a recovery for the full amount of the policy could be sus- tained.^ And so where the assignee pays $300 for the assign- ment of a policy for $2,000, and agrees to pay the dues and assessments on the policy, in the absence of proof of any age or expectancy of life of the insured, the court cannot say, as a matter of law, that the sale or assignm.ent was tainted with the vice of gambling, such question usually being one of fnct.^ § 269. Benevolent associations. — In the ordinary life in- surance, the beneficiary named in the policy acquires an inter- est in the policy, but in benevolent associations, the beneficiary acquires no vested interest until the death of the insured.* In benevolent associations, if any person is designated as a bene- ficiary who does not come within the classes named, the designa- tion is invalid.^ The association can only pay the fund to the persons designated in its constitution and by-laws, or the statute creating it. And if it should promise to pay to some other per- son the promise is void f so wagering contracts cannot be cre- ated in this kind of insurance. 1. Arnick V. Butler, 111 Ind. 578, S.Daniels v. Pratt, 143 Mass. 12 N. E. 518, 60 Am. Rep. 722 and 216, 10 N. E. 166; Rinuge v. Aid note. Soc, 146 Mass. 286, 15 N. E. 628. 2. Ulrich v. Eeinaehl, 143 Pa. 6. Britton v. Royal Arcanum, St. 238, 22 A. 862, 13 L. R. A. 433 46 N. J. Eq. 102, 18 A. 675, 19 Am. and note, 24 Am. St. Rep. 534. St. Rep. 376; Knights v. Nairn, 60 3. Nye v. Grand Lodge, 9 Ind. Mich. 44, 26 N. W. 826; ilichigan App. 131, 36 N. E. 429. Mut. Ben. Asso. v. Rolfe, 76 Mich. 4. Holland v. Taylor, 111 Ind. 146, 42 N. W. 1094; Sanger v. 121, 12 N. E. 116; Masonic Mut. Rotlischild, 123 N. Y. 577, 26 N. E. Ben. Soc. v. Burkhart, 110 Ind. 189, 3. 10 N. E. 79, 11 N. E. 449. 2Y6 Cll. 7 WAGERS AND GAMING CONTRACTS. § 270 ARTICLE V. Lottery Dealings. Section 270. Lottery — Definition — Tradinj^ Stamps. 271. Gratuitous Distribution of Property by Lot or Chance. 272. Sale of Lottery Tickets. 273. Lottery Company Chartered by the Legislature. § 270. Lottery — Definition — Trading stamps. — A lottery is a scheme by which, on one's paying money or some other thing of value, he obtains the contingent right to have something of greater value, if on appeal to chance, by lot or otherwise, un- der the direction of the manager of the scheme, it should decide in his favor.^ Or it is a transaction where a pecuniary con- sideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to receive for it.^ The term lottery has no technical meaning. The statutes generally declare a lottery to be a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name.^ Every lottery has the characteristics of a wager or bet, although every bet is not a lottery. The courts have sho^vn a general disposi- tion to bring within the term lottery every species of gaming, involving a distribution of prizes by lot or chance, and which comes within the mischief to be remedied.* Any scheme for the distribution of prizes, by lot or chance, by which one, on paying money to another, obtains a token, which entitles him to receive a larger value or nothing, as some formula or chance may determine, is a lottery.^ But a guessing contest where one 1. Cross V. People, 18 Colo. 321. 4. Yellow Stone Kit v. St«te, 88 32 P. 821, 38 Am. St. Rep. 292. Ala. 19G, 7 So. 338, 7 L. R. A. 559 2. Hull V. Rusrgles, 56 N. Y. 424; and note, 16 Am. St. Rep. 38 and Barclay v. Pearson (1893), 2 Ch. note. 154. 5. State v. Bonefl, 42 La. Ann. 3. State V. Moren, 48 Minn. 555. 1110, 8 So. 300, 21 Am. St. Rep. 51 N. W. 618. 413; Dunn v. People, 40 111. 465; g '270 CONTRACTS IN VIOLATION OF LAW. Cll. 7 j)avs money to guess on the number of votes that will be cast for a candidate or any other guessing of the number of things and the like is not a gaming transaction or lottery. And if the party paying to guess has any right to recover the money paid, it is on the gTOuud that the contest is illegal at common law or against public policy.^ The law prohibiting the use of trading stamps is unconsti- tutional. Such law does not come within the police power of the State. The use of trading stamps is not injurious to the public. And if such use does seriously interfere with the business of others, this will not make it an illegal act. Hence such statute is not the valid exercise of the legislative power and is, therefore, unconstitutional.'^ Such a scheme is not a gift enterprise, because it is not a distribution of articles by chance,^ as is done in a gift enterprise.® However, the courts are not in harmony as to the legality of prohibition of the use of trading stamps. So it has been held that giving trading stamps is not a lottery or gift enterprise in tlie ordinary sense, yet it is within the terms of the prohibition of gift enterprises under the act of Congress of 1873, and therefore the issuing of trading stamps to customers is illegal.^" In Rhode Island a statute which prohibits the merchant from giving to the purchaser, as part of the same transaction, a stamp, coupon, or other device, which would entitle him to receive from a third person some article, well-defined article, in addi- tion to the one sold, is an unwarranted interference with per- sonal liberty guaranteed by the State and the Federal Oonstitu- Commonwealth v. Sheriff, 10 Phil. 7. Young v. Commonwealth (Pa.) 203; Holman v. State, 2 Tex. (Va.), 45 S. E. 327; State v. Dal- App. 610; Chavannah v. State, 49 ton, 22 R. I. 77, 46 A. 234, 84 Am. Ala. 396; Commonwealth v. Wright, Rep. 818. 137 Mass. 250, 50 Am. Rep. 306; 8. State v. Shugart, 138 Ala. 86, Hull V. Ruggles, 65 Barb. (N. Y.) 35 So. 28. 432; State v. Clarke, 33 N. H. 329, 9. Lohman v. State, 81 Ind. 17; 66 Am. Dec. 723; State v. Bryant, Marseve v. Anderson, 106 Mass. 74 N. Car. 207; Randle v. State, 422; State v. Shugart, 138 Ala. 86, 42 Tex. 580. 35 So. 28. 6. Stevens v. Cincin. Enquirer lO. Lansburg v. Dist. Col., 11 Co.. Court Index, Nov. 8, 1902. App. D. C. 512. 278 Cll. 7 WAGEKS AM) (iAMI.NG CONTRACTS. §§ 2*70,271 tion." So a statute is imconstitutioual so far as it prohibits a corporation from issuing trading stamps and selling the same to merchants for distribution to their customers, to be exchanged for articles of fixed value at the option of the holder of the stamp/" A statute making it a misdemeanor to issue trading stamps unless they bear upon their face the amount for which they can be redeemed in cash, is imconstitutional. In Massachusetts a statute prohibiting the use of stamps is limited to the use of such stamp in a way that involves some chance ; in such case the issuing of stamps is illegal/^ In Mary- land a statute making it unlawful to issue trading stamps which are not redeemable out of any articles that are certain and known to the purchaser at the time of his purchase is valid though a provision of it prohibiting the redemption at any other place than that of the purchase is invalid." In case there is no statute prohibiting the issue of trading stamps, their use is not a lottery or gift enterprise and there is nothiug ille^-al in such § 271. Gratuitous distribution o£ property by lot or chance. — The gratuitous distribution of money or property by lot has never prevailed to such an extent as to require police regulation at the hands of the State. The history of lotteries both in Eng- land and in the United States shows that they have been schemes for the distribution of money or property by lot in which chances were sold for money, either directly or through some cunning device. The element of a valuable consideration, parted with, directly or indirectly, by the purchaser of the 11. State V. Dalton, 22 R. I. 77, 15. State v. Shugart, 138 Ala. 46 A. 234, 48 L. R. A. 775, 84 Am. 86, 3.5 So. 28. See, also, Winston St. Rep. 818. V. Beeson (N. Car.)', 47 S. E. 457. 12. People V. Dycker. 72 App. See Whether the Giving of Trading Div. 309, 76 N. Y. S. 111. Stamps is Subject to Prohibitory 13. Commonwealth v. Sisson, Legislation, 57 Cent. L. Jour. 421. 178 Mass. 578, 60 N. E. 385. The Latest Development of the In- 14. State V. Hawkins, 75 Md. teratate Commerce Power — The Lot- 133, 51 A. 850, 93 Am. St. Pvcp. tery Tickets Case — 1 Mich. L. Re- 328. view, 615. 279 §§ 271, 272 CONTRACTS IN VIOLATION OF LAW. Ch. 7 chance, iimst enter into the transaction in order to constitute a lottery.^'^ And so acts that declare that no person shall give awaj anything to a purchaser of goods, wares or merchandise, as an inducement to make the purchase, are invalid. Because such regulation of trade is unlawful, as it is not for the welfare of the people, but oppression and burdensome to the people.^^ There is no law which prohibits the gratuitous distribution of one's property by lot or chance. If the distribution is a pure gift or bounty, and not in name or pretense merely, which is designed to evade the law — if it is entirely unsupported by any valuable consideration moving from the taker — there is nothing in this mode of conferring it which is violative of the policy of the statute condemning lotteries, or gaming.^* § 272. Sale of lottery tickets. — It is made illegal to sell lot- tery tickets. So a principal cannot recover money received by his alleged agent from the sale of lottery tickets delivered to the latter by the former under an agreement that he shall account for the proceeds.^ And so where the proprietor of a " guessing contest " has received the money paid for guessing, he cannot be compelled to pay it to the winner.^ So, where clubs of forty persons each are formed by a merchant-tailor for the dispo- sition of suits of clothing, each of the stipulated value of $40, 16. State V. Munford, 73 Mo. 747 ; U. S. 746, 4 S. Ct. 652 ; Toledo, etc., Hull V. Ruggles, 56 N. Y. 424; Co. v. Jacksonville, 67 111. 46; Thomas v. People, 59 111. 160 ; Long v. State, 74 Md. 565, 22 A. 4, Dunn V. People, 40 111. 465 ; United 12 L. R. A. 425, 28 Am. St. Rep. States V. Olney, 1 Deady, D. C. 461 ; 268. Bell V. State, 5 Sneed (Tenn.), 507; 18. United States v. Olney, 1 Buckalew v. State, Q2 Ala. 334, 34 Deady, D. C. 461, 1 Abb. C. C. 2^5; Am. Rep. 22; Governor v. Art Ehrgatt v. Mayor, 95 N. Y. 264, 48 Union, 7 N. Y. 228; Yellow Stone Am. Rep. 622; Commonwealth v. Kit V. State, 88 Ala. 196, 7 So. 338, Thacher, 97 Mass. 583, 93 Am. Dec. 7 L. R. A. 559 and note, 16 Am. St. 125; Cross v. People, 18 Colo. 221, Rep. 38 and note; Long v. State, 74 32 P. 821, 36 Am. St. Rep. 292. Md. 565, 22 A. 4, 12 L. R. A. 425, 1. Mexican International Bank- 28 Am. St. Rep. 268. ing Co. v. Lichtenstein, 10 Utah, 17. People V. Gillson, 109 N. Y. 338, 37 P. 574; Udall v. Metcalf, 5 389, 17 N. E. 343, 4 Am. St. Rep. N. H. 396. 465; In re Jacobs, 98 N. Y. 98, 56 2. Barclay v. Pearson (1893h 2 Am. Rep. 636 and note; Butchers' Ch. 154. Union Co. v. Crescent City Co., Ill 280 Ch, 7 WAGERS AND GAMING CONTRACTS. §§ 272, 273 by lot, under nominal contracts of purchase, the price to be paid in weekly installments of $1 each, such payments entitling the holders of tickets to participate in weekly drawings by lot, with the chance of securing goods of the value of $40 at any drawing, without further additional payments than the weekly installments paid, the transaction is a lottery and illegal.^ So, sending lottery tickets from one State to another to be sold or used is interstate commerce, can be regulated by Congress. Therefore, Congress can prohibit the carriage of lottery tickets from one State to another.'* And an anti-policy law will be upheld which makes the possession by any person, other than an oflScer, of any paper or document representing a chance or interest in a game, commonly called " policy," presumptive evidence of wrongful possession.^ § 273. Lottery company chartered by the Legislature. — The legislature cannot, by chartering a lottery company, defeat the will of the people of the State authoritatively expressed in relation to the continuance of such business in their midst. Be- cause lotteries are a species of gambling and wrong in their in- fluence, the right to suppress them is governmental, to be exer- cised at all times by those in power, at their discretion. Any one, therefore, who accepts a lottery charter does so with the implied nnderstanding that the people, in their sovereign ca- pacity and through their properly constituted agencies, may re- sume it at any time when the public good shall require, whether it be paid for or not. All that one can get by such charter is a suspension of certain governmental rights in his favor subject to withdrawal at will. He has, in legal effect, nothing more than a license to enjoy the privilege on the terms named for the speci- fied time, unless it be sooner abrogated by the sovereign power of the State.^ 3. State V. Moren, 48 Minn. 555, S. 585; People v. Adams, 176 N. Y. 51 N. W. G18. 351, 68 N. E. 636, 98 Am. St. Rep. 4. Champion v. Ames, 188 U. S. 675 and note. 321. 23 S. Ct. 321, 26 Nat. Cor. Rep. 1. Stone v. Mississippi, 101 U. S. 76. 814; Douglas v. Kentucky, 168 U. 5. Adams v. New York, 192 U. 8. 488, 18 S. C1;. 199. 281 p^RT m. CONTRACTS AGAINST PUBLIC POLICY. (283) PJVRT III. CHAPTER VIII. What is Public Policy. ARTICLE I. The General Doctrine. Section 274. Public Policy — How Determined. 275. Defense of Public Policy. 276. Stipulation tliat False Representations Shall not Avoid tns Contract. 277. Contracts for Welfare of Children. 278. Contracts Payable in Gold Coin. § 274. Public policy — How determined. — The public policy of nations must be determined by its constitution, laws, and judicial decisions.^ And as a nation advances in civilization, public policy may mean more tban at the inception of govern- ment. Take the subject of lotteries as an example. Formerly in many States lotteries were legitimate and the sale of tickets was sanctioned. Schools and colleges were established by funds received from the traffic of lottery tickets, l^ow such concerns are prohibited by all the States. At the beginning of the last century the Federal government ran a lottery and the drawings were supervised by Washington and Adams. Even religious bodies entered into lottery schemes to build their churches. This traffic has fallen within the police power of the nation, and Congress, acting for the nation, has de- clared a previously lawful business unlawful, and prohibits 1. United States v. Freight Asso., v. Girard, 2 How. (U. S.) 127, 197; 166 U. S. 290, 17 S. Ct. 546; Vidal Swann v. Swann, 21 Fed. Rep. 299. 285 § 274 CONTRACTS AGAINST PUBLIC POLICY. Gh. 8 it for all time. All this is because the needs of our government demand it ; and this prohibition cannot be overestimated. But it must be understood that the rules which say a given contract is void, as being against public policy, must not be ex- tended arbitrarily, because, if there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty to contract, and that their contracts when entered into freely and voluntarily shall be held valid, and shall be enforced by courts of justice.^ The common law will not permit individuals to obligate them- selves by a contract, either to do or not to do anything, when the thing to be done or omitted is in any degree clearly injurious to the public f and a contract is not void as against public policy unless it is injurious to the interest of the public or contravenes some established interest of society.* Public policy, in the administration of the law by the courts, is essentially different from what may be public policy in the view of the legislature. With the legislature it may be, and often is, nothing more than expediency. The public policy which dictates the enactment of a law is determined by the wis- dom of the legislature.^ But in the absence of any statute for- bidding the making of certain contracts, a court can find a con- tract void because it has a tendency to injure the public, or is against the public good. To be void it must be inconsistent with sound policy and good morals as to the consideration or thing to be done.^ Where the transaction is nothing more or less than the accept- ance by the party of a bribe to perform his duties in a manner 2. Printing Numerical Register-- 4. Peterson v. Christensen, 26 ing Ck>. V. Sampson, L. R. 19 Eq. Minn. 377, 4 N. 623. Cas. 462, 465; Hulse v. Machine 5. Enders v. Enders, 164 Pa. St. Co., 65 Fed. Rep. 8B4, 13 C. C. A. 266, 30 A. 129, 27 L. R. A. 56 and 180, 25 U. S. App. 239; In re note, 44 Am. St. Rep. 598. Garcelon, 104 Cal. 590, 38 P. 413, 6. Trist v. Child, 21 Wall. (U. 32 L. R. A. 595 and note. S.) 448. 3. Chappel v. Brockway, 21 Wend. (N. Y.) 159. 286 Ch. 8 WHAT IS PUBLIC POLICY. § 274 desired by the person who gives the bribe, it is void as against public policy.^ But a doubtful matter of public policy is not sufficient to invalidate a contract. An agreement is not void on this ground unless it expressly and unquestionably contravenes public policy, and is manifestly injurious to the interest of the State f if it is then it is void.^ But if a contract is valid when made, it is not affected by a change in the public policy of the State.^° The public policy of the government is to be found in its statutes, and when they have not directly spoken, then in the decisions of the courts and the constant practice of the govern- ment officials ; but when the law-making power speaks on a par- ticular subject, over which it has constitutional powers public policy in such a case is what the statute enacts. And a con- tract or combination made in violation of a law is void, what- ever may have been theretofore decided by the courts to have been the public policy of the country on the subject. ^^ And a contract which endeavors to modify the statute of limitations is void, because it is against public policy. ^^ And an agreement that an attorney shall have part of the alimony awarded his client is void as it contravenes public policy, and is also non- assignable." In the Lottery Case^* the United States Supreme Court held that the traffic in lottery tickets contravenes public policy. If Congress has power to declare a traffic prejudicial to the public morals and, therefore, unlawful, it has the power to declare a 7. Harrington v. Dock Co., 3 Q. Cal. 86, 41 P. 783, 29 L. R. A. 751, B. Div. 549; West v. Camden, 135 50 Am. St. Rep. 17. U. S. 507, 10 S. Ct. 832; Fuller v. 11. United States v. Freight Dawe, 18 Pick. (Mass.) 472; Lum Asso., 106 U. S. 290, 17 S. Ct. 540. V. MeEwen, 56 Minn. 278, 57 N. W. 12. Miller v. Ins. Co., 54 Neb. 662; Smith v. Humphrey, 88 Me. 121, 74 X. W. 416, 69 Am. St. Rep. 345. 709. 8. McCandless v. Steel Co., 152 13. Lynde v. Lynde, 64 N. J. Pa. St. 139, 25 A. 579; Vocke v. Eq. 736, 52 A. 694, 97 Am. St. Rep. Peters, 58 111. App. 338. 692. 9. Meridian Water Co. v. Schul- 14. Champion v. Ames, 188 U. horr (Miss.), 17 So. 167. S. 321, 23 S. Ct. 321. 10. Stephens v. Railroad Co., 109 287 § 274 CONTRACTS AGAINST PUBLIC POI.ICY. Cll. 8 traffic prejudicial to public interests and, therefore, illegal, by reason of oppression of the consumer by combinations whicli stifle competition. If Congress has power to condemn inter- state traffic because it is immoral and prejudicial to public in- terests, it also has the power to declare it prejudicial for any other purpose, such as the interstate transportation of all com- modities, the product of combinations. The Lottery Case is confined only to such traffic as public policy condemns as im- moral or prejudicial to health, and left undecided the question whether such prohibition would be justified if the business were not inherently immoral or unwholesome but prejudicial to the public welfare by reason of economic consideration, such as the stifling of competition. So, contracts against the morals of the people are void. At common law the keeping of a house of prostitution is an indict- able offense. Such places are regarded with so much disfavor, that not only the keeper of the house, but also a landlord, know- ingly leasing the same for the purpose of bawdry, is held to be guilty of a criminal offense when the house is actually put to im- moral use.^^ So, where a lessor of the premises knows or ought to know that they will be used for unlawful purposes, the lease is void, and the obligation of the lessee to pay will not be en- forced by the court. ^^ An agreement which contravenes any statute for the protection of public morals is void.^^ So, an agreement in consideration of future illicit cohabita- tion between man and woman is void, and past cohabitation does not form an adequate consideration not under seal, even if it 15. Commonwealth v. Harring- bard v. Moore, 24 La. Ann. 591; ton, 3 Pick. (Mass.) 26; Dougherty Lyman v. Townshend, 24 La. Ann. V. Seymour, 16 Colo. 289, 26 P. 823. 625, 13 Am. Rep. 128; Mahood v. See, also, Niver v. Best, 10 Barb. Teazle, 26 La. Ann. 108, 21 Am. (N. Y.) 369; Pearce v. Brooks, L. Rep. 546; Sampson v. Townshend, R. 1 Exch. 213; Shankel v. Moffatt, 25 La. Ann. 78. 53 III. App. 382; Smith v. White, 17. Ritchie v. Smith, 6 C. B. L. R. 1 Eq. 626. 462 ; Cowan v. Milbourn, L. R. 2 16. Ernst v. Crosby, 140 N. Y. Exch. 230; Compare O'Brien v. 364, 35 N. E. 603; Compare Hul- Prietenbach, 1 Hilt. (N. Y.) 304. 288 Cb. 8 . WHAT IS PUBLIC POLICY. §§ 274, 275 does when made under seal ;^^ and it is immaterial whether the contract is by parol or under seal, if it be for further inter- course ; if under seal the illegality of the consideration will avoid the contract; so no contract can be made for future illicit co- habitation.^^ § 275. Defense of public policy — Waving the statute of limitations — Marriage brokerage. — The defense of public policy does not proceed so much upon the idea of relief to an innocent party as protection to the public by withholding legal remedies from the party contemplating or practicing an im- position. It would be a strange rule of law which would extend relief to a particeps criminis, and withhold relief from an inno- cent party who seeks to avail himself of its protection when the imposition is discovered.^ But a person who has derived benefit from a contract which is void as against public policy is not estopped thereby to defend against such contract when it is sought to be enforced against him.^ In some States a party may waive the statute of limitations at the time he signs a note, and such action is not against public policy.^ The doctrine is that marriage brokerage contracts are void in this country and in England. The interference by one upon an agreement to receive a moneyed or valuable consideration to in- 18. Wallace V. Rappleye, 103 111. 110; Holman v. Johnson, Cowp. 229 ; Trovinger v. McBurney, 5 Cow. 34 ; Church v. Proctor, 66 Fed. Rep. (N. Y.) 253; Gray v. Mathias, 5 240, 13 C. A. A. 426, 33 U. S. App. Ves. 286. 1. 19. Dreeman v. Douglass, 102 2. Brown v. Bank, 137 Ind. 655, 111. 341, 40 Am. Rep. 595; Hanks 37 N. E. 158, 24 L. R. A. 206; V. Nagles, 54 Cal. 51, 35 Am. Rep. Hutchinson v. Weldin, 114 Ind. 80, 67 and note; Baldy v. Stratton, 11 15 N. E. 804; Wheeler v. Wheeler, Pa. St. 316; Walker V. Gregory, 36 5 Lans. (N. Y.) 355; Snyder v. Ala. 180; Massey v, Wallace, 32 S. Willey, 33 Mich. 483. Car. 149, 10 S. E. 937 ; De Sobry v. 3. State Trust Co. v. Sheldon, 68 De Laistre, 2 Har. & J. (Md.) 191, Vt. 259, 35 A. 177; Bridges v. 3 Am. Dec. 535. Stephens, 132 Mo. 524, 34 S. W. 1. Cowan V. Milbourn, 2 Exch. 555. 230; Spotswood v. Barrow, 5 Exch. 289 § 275 CONTRACTS AGAINST PUBLIC POLICY. Ch, 8 duce or bring about a marriage between others has always been held void.* Hence, a contract made by an aged man with his grandson, that if the latter will aid the grandfather in inducing a young lady to marry him, the grandfather will deliver to the grandson a note he holds against him, is against public policy and is void.^ Contracts made with "matrimonial bureaus" are illegal; and while such contracts are illegal, yet the courts will aid a party who has patronized such a business by relieving him or her from all contracts made, and will grant restitution of any money paid or property transferred, on the principle that he is not equally guilty.^ Where a party carries on a business of promoting marriage, the natural tendency of such a business is immoral and it would be so clearly the policy of the law to sup- press it, and public interest would be so greatly promoted by its suppression, that the courts will not hesitate to aid the party who has patronized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property transferred. In that way only could the policy of the law be enforced and public interest promoted.^ The question of this kind must always be whether the parties are equally guilty. Cases may arise where the court would be justified in holding as a matter of law that neither party had any remedy, as where there is an agreement between two, having for its pur- pose the marriage of one to a third party, in which case the parties would be clearly in pari delicto. So if two parties enter into a partnership to carry on negotiations for the promotion of marriage, neither party would have relief in court.^ 4. Johnson v. Hunt, 81 Ky. 321; 8. Duval v. Wellman, 124 N. Y. Hall V. Potter, 3 Lev. 411; Keat. v. 156, 26 N. E. 343; Kearley v. Thorn- Allen, 2 Vein. 588. son, 24 Q. B. D. 742, criticizing 5. Johnson v. Hunt, 81 Ky. 321. Taylor v. Bowers, 1 Q. B. D. 291, 6. Duval V. Wellman, 124 N. Y. wliere it is held that if money is 156, 26 N. E. 343; Bmith v. Brun- paid tor an illegal purpose the per- ing, 2 Vern. 392; Goldsmith v. son who has paid the money may Bruning, 1 Eq. Cas. Abr. 89; Tay- recover it back before the illegal lor V. Bowers, 1 Q. B. D. 291. purpose is completed. Compare 7. Duval V. Wellman, 124 N. Y. Glanville v. Jennings, 3 Rep. in Ch. 156, 26 N. E. 343. 31. 290 Ch. 8 WHAT IS PUBLIC POLICY. §§ 275, 276 But the courts make a distinction as to the party paying money or other property, to a matrimonial broker, and hold that the customer is not equally guilty with the broker, and hence, the customer may recover back the money paid.^ § 276. Stipulation that false representations shall not avoid the contract. — A stipulation in a contract that false represen- tations used in procuring it shall not affect its validity, is itself invalid and has no effect whatever.^ So, where one party to a contract has perpetrated a fraud upon the other by means of which the other was induced to enter into the contract, the latter cannot be precluded from seeking redress by a provision in the contract purporting to grant to the former immunity against the consequences of any fraud.^ No authority can be found that a party who had perpetrated a fraud upon another, may, neverthe- less, contract with him in the very instrument by means of which it was perpetrated, for immunity against its consequences. Pub- lic policy and morality are both ignored if such an agreement can be given effect in a court of justice. Such a clause of immunity from fraudulent representations cannot be separated from the transaction in which it originated. It is tainted with the same vice and must share the same condemnation. This doctrine is sound and supported by analogy, and must be sustained.^ The clause cannot be given any greater effect than if it had been written upon a separate piece of paper after the execution of the contract and signed by the parties. It cannot operate by way of estoppel for the reason that the statements were false to the party's knowledge, who made them. A mere device of 9. Duval V. Wellman, 124 N. Y. Howell, 44 N. Y. 398; Shapley v. 156, 26 N. E. 343. Abbott, 42 N. Y. 443, 1 Am. Rep. 1. Hofflin V. Moss, 67 Fed. Rep. 548; Hutchins v. Hebbard, 34 N. 440, 14 C. C. A. 459, 32 U. S. App. Y. 24; Universal Fashion Co. v. 200. Spencer, 64 Hun (N. Y.), 293, 19 2. Bridger v. Goldsmith, 143 N. N. Y. S. 62; Kneetle v. Newcomb, Y. 424, 38 N. E. 458. 22 N. Y. 249, 78 Am. Dec. 186; Bell 3. Smyth v. Munroe, 84 N. Y. v. Leggatt, 8 N. Y. 176, 59 Am. 361; Steel v. Smelting Co., 106 U. Dec. 476; Sedgwick v. Stanton, 14 S. 447, 1 S. Ct. 389; Wilcox v. N. Y. 289. 291 §§ 2'76-2'78 CONTRACTS AGAINST PUBLIC POLICY, Ch. S a guilty party to a contract intended to shield himself from the results of his own fraud, practiced upon the other party, cannot be set up as an equitable estoppel.* § 277. Contracts for welfare of children. — A contract of a parent, by which he bargains away for a consideration the cus- tody of his child to a stranger, he attempting to relieve himself from all parental obligations, and place the burden on another, who accepts it, without natural affection or moral obligation to prompt to the performance of parental duty, but only because of a bargain, is void, as against public policy. Such a contract would be a mere sale of the child for money.^ But where pa- rental solicitude and affection are not extinguished, and where the welfare of the child is intended to be promoted, a contract by parents in reduced circumstances and grand-parents of good character and ample means, that the grandparents shall bring up the child, is not against public policy.® And it has been de- cided that contracts of the parents are not against public policy, although made with strangers to the blood ; because of the special facts, and on the ground that the contract was for the welfare of the child."^ § 278. Contracts payable in gold coin. — Contracts made pay- able in gold coin of the United States are not against public policy and are valid.^ No transaction of commerce or business, or obligation for 4. Bridger v. Goldsmith, 143 N. 1. Brown v. Rodes, 7 Wall. (U. Y. 424, 38 N. E. 458. S.) 229; Trebilcock v. Wilson, 12 5. Chapsky v. Wood, 26 Kans. Wall. (U.S.) 687; Belford v. Wood- 650, 40 Am. Rep. 321 and note; ward, 158 111. 122, 41 N. E. 1092, 29 State V. Clover, 16 N. J. L. 419; L. R. A. 593 and note. See, also, Johnson v. Terry, 34 Conn. 259. Judson v. Bessemer, 87 Ala. 240, 6 6. Enders v. Enders, 164 Pa. St. So. 267, 4 L. R. A. 742; Dennis v. 266, 30 A. 129, 27 L. R. A. 56 and Moses, 18 Wash. 5B7, 52 P. 333; note, 44 Am. St. Rep. 598. Parson v. Louisville, 97 Ky. 119, 7. Van Dyne v. Vreeland, 11 N. J. 30 S. W. 17; Blanck v. Sadlier, 153 Eq. 371; Hill v. Gomme, 1 Beav. N. Y. 551, 47 N. E. 920; Murphy v. 641. See, also, Bently v. Terry, 59 San Luis Obispo, 119 Cal. 624, 51 Ga. 555, 27 Am. Rep. 399. P. 1085, 39 L. R. A. 444. 292 Ch. 8 WHAT IS PUBLIC POLICY. § 278 the payment of money that is not immoral in its character and which is not, in its manifest purpose, detrimental to the peace, good order and general interest of society, can be declared or held to be invalid because enforced or made payable in gold <;oin or currency when that is established or recognized by the government.^ And any acts by State authority impairing or lessening the validity or negotiability of obligations thus made payable in gold coin are violative of the laws and constituton of the United States.^ The agreement to pay coin is as much of the consideration as the agreement to pay at all, and the presumption is that an ample equivalent has been received for the promise. The par- ties are competent to contract, the contract is not against public policy, it is not prohibited by law, it is payable in a lawful kind of money, and is a lawful contract.^ Contracts to pay gold coin are simply engagements for the delivery of a specific commodity, or to deliver a certain weight of standard gold, to be ascertained by a count of coins, each of which is certified to contain a definite proportion of that weight. It is not distinguishable in principle from a contract to deliver an equal weight of bullion of equal fineness.^ Under the doctrine of the courts Congress will have no au- thority to legislate against such contracts, for such contracts are an engagement for the delivery of a specific commodity. Congress cannot interfere with and assume to regulate the business dealings of citizens except under some power ex- pressly granted by the Federal constitution.^ iJsTeither can the 2. Woodruff V. Mississippi, 162 Skinner v. Santa Kosa, 107 Cal. 464, U. S. 291, 16 S. Ct. 820; Wallace v. 40 P. 742. Eldridge, 27 Cal. 498; Carpenter v. 3. Woodruflf v. Mississippi, 162 Atherton, 25 Cal. 564; Harding v. U. S. 291, 16 S. Ct. 820. Cowing, 28 Cal. 213; Julliard v. 4. Carpenter v. Atherton, 25 Cal. Greenman, 110 U. S. 421, 4 S. Ct. 564. 122; Hagar v. Reclamation Dist., 5. Brown v. Rodes, 7 Wall. (U. Ill U. S. 701, 4 S. Ct. 663; Belford S.) 229, 250. V. Woodward, 158 111. 122, 41 N. E. 6. Brown v. Rodes, 7 Wall. (U. 1097, 29 L. R. A. 593 and note; S.) 229. 293 278 CONTRACTS AGAINST PUBLIC POLICY. Ch. 8 State legislate to regulate such contracts, as such legislation would be in violation of the Federal constitution.^ There are State decisions, rendered before the United States Supreme Court decision, which hold that a contract payable in gold may be discharged by payment of any legal tender money of the same nominal value.^ But the weight of authority is that the contract must be paid in gold when so stipulated, as shown by cases already cited. If a party insists upon payment of gold coin as stipulated in his contract, if the State court de- cides against him, he can appeal to the United States Supreme Court, because such judgment is a denial of a right, privilege, and immunity claimed under the constitution and statutes of the United States f hence, the final arbiter is the United States Supreme Court, which has decided that such contracts must be paid in gold. Contracts payable in gold coin or other money are valid and not against public policy. To prohibit such contracts is also an unwarranted interference with liberty of contract which is protected alike by State and Federal constitutions." 7. Woodruff V. Mississippi, 162 U. S. 291, 16 S. Ct. 820. 8. Gallious v. Pierce, 18 La. Ann. 10; Frotliingham v. Morse, 45 N. H. 545; Henderson v. MePike, 35 Mo. 255; Appel v. Waltman, 38 Mo. 194; Eiley v. Sharp, 1 Bush. (Ky.), 348; Laughlin v. Harvey, 52 Pa. St. 9; Brown v. Welch, 26 Ind. 116; Buchegger v. Schultz, 13 Mich. 420; Mervine v. Sailer, 5 Phila. (Pa.) 422; Bank v. Burton, 27 Ind. 426. 9. Bronson v. Eodes, 7 Wall. (U. S.) 229; Trebilcock v. Wilson, 12 Wall. (U. S.) 687; Butler v. Hor- witz, 7 Wall. (U. S.) 258; Bronsan V. Kimpton, 8 Wall. (U. S.) 444; Woodruff V. Mississippi, 162 U. S» 293, 16 S. Ct. 820. 10. Allgeyer v. Louisiana, 165- U. S. 578, 17 S. Ct. 27. 294 Ch. 8 WHAT IS PUBLIC POLICY. § 279 ARTICTLE IT. Contracts for Office and for Influencing Official Conduct. Section 279. Sale of Offices. 280. Influencing Appointment to Office. 281. Compensation by Private Person. 282. Controlling the Regular Administration of Justice. 283. Assignment of Unearned Compensation. 284. Contracts to Procure Legislation — Lobbying Contracts. 285. Compensation for Professional Services. 286. Use of Improper Influence. 287. Contract for Securing a Pardon. § 279. Sale of offices. — All bargains made or given for the pnrchase or sale of any office whatever, is void as against public policy. Such agreements are void at common law, as well as by statute. And contracts to procure appointment to office^ are void or to resign office in another's favor.^ Public olffices are public trusts, and should be conferred solely upon consideration of ability, integTity, fidelity and fitness for the position. Agree- ments for compensation to procure these tend directly and neces- sarily to lower the character of the appointments to the great detriment of the public. Therefore, all such agreements of whatever nature have always been held void as contrary to public policy.^ The services performed by an officer are paid for by salaries and fees, presumed to be adjusted at the point of adequate re- muneration only. Any premium paid to obtain office interferes with the adjustment and tempts to speculation, overcharges and 1. Meacham v. Dow, 32 Vt. 721; 3. Meguire v. Corwine, 101 U. S. Gracone v. Wroughton, 11 Exch. 108; Tool Co. v. Norris, 2 Wall. (U. 146; Bobertson v. Robinson, 65 Ala. S.) 45; Gray v. Hook, 4 N. Y. 449; 610, 39 Am. Rep. 17; Stout v. En- Gaston v. Drake, 14 Nev. 175, 33 nis, 28 Kans. 706; Engle v. Chip- Am. Rep. 548; Filson v. Himes, 5 man, 51 Mich. 524, 16 N. 886; Card Pa. St. 452, 47 Am. Dec. 422; V. Hope, 2 Barn. & Cr. 661. Liness v. Hesing, 14 111. 113; Basket 2. Eddy v. Capron, 4 R. I. 394, v. Moss, 115 N. Car. 448, 20 S. E. 67 Am. Dec. 541. 733, 44 Am. St. Rep. 463. 295 §§ 279, 280 CONTEACTS AGAINST PUBLIC POLICY. Ch. 8 frauds in the effort to restore the balance thus disturbed/ And an agreement whereby an officer agrees to accept a different compensation than that provided by statute for his ojfficial acts, or whereby he agrees not to avail himself of the statutory method of enforcing collection of fees, is contrary to public policy and void.^ § 280. Influencing appointment to ofifice. — A contract is con- trary to public policy and void whereby one by his influence appoints another to office, the latter agreeing as compensation to share the fees with the former.^ So an agreement by an appli- cant for the appointment of deputy sheriff, to pay the sheriff a portion of the fees received by him as an oflScer, is void.^ Where, therefore, a deputy sheriff, upon his appointment, gave to the sheriff a l)ond with sureties, conditioned for the pay- ment by him to the sheriff of one-third of all the fees received by him, both in civil and criminal cases, the bond is void and no action can be maintained on it to recover the proportion specified of fees received by the deputy as peace officer.^ I^ot only an agreement by one to pay to another, a public officer, an amount equal to the emoluments of the unexpired term of his office, in consideration of his resignation and his influence to secure the appointment of the former to the office, is void, and likewise an agreement to compensate any one for, or to pay the expenses of anyone in, attempting to secure the appointment;^ and a mortgage to secure such an agreement is void/° 4. Eddy v. Capron, 4 R. I. 394. 7. Deyoe v. Woodworth, 144 N. 67 Am. Dec. 541. Y. 448, 29 N. E. 375; White v. 5. Peters v. Davenport, 104 Iowa, Cook, 51 W. Va. 201, 41 S. E. 410, 625, 74 N. W. 6. 57 L. R. A. 417, 90 Am. St. Rep. 6. Meguire v. Corwine, 101 U. S. 775. 108. See, also, Marshall v. Railroad 8. Deyoe v. Woodworth, 144 N. Co., 16 How. (U. S.) 314; Tool Co. Y. 448, 29 N. E. 375. V. Norris, 2 Wall. (U. S.) 45; 9. Basket v. Moss, 115 N. Car. Trist V. Child, 21 Wall. (U. S.) 44; 448, 20 S. E. 733, 44 Am. St. Rep. Cappell V. Hall, 7 Wall. (U. S.) 463. 542; Deyoe v. Woodworth, 144 N. 10. Basket v. Moss, 115 N. Car. Y. 448; 29 N. E. 375. 296 Ch. 8 WHAT js PUBLIC POLICY. §§ 280, 281 Closely allied to this class of cases are those engaging an editor to use his paper to advance the interest of a candidate. Thus, a contract by which an editor or proprietor of a news- paper agrees to use the influence of his paper to secure a can- didate's nomination to a political office is void as against public policy. ^^ The invalidity of such contracts designed to control the free- dom of election, results from the principles of the common law, and so those relating to caucuses cannot be made an exception on the ground that such meetings are not recognized by the statute. To secure a free and exact expression of the sovereign will, there must be a proper selection of candidates, as well as an honest election. If the choice of delegates and the action of the nomin- ating convention are improperly determined, the election ballots will fail to express the real judgment of the voters. § 281. Compensation by private person. — An agreement by a private person to pay a public officer for doing his duty is void as against public policy, it is otherwise as to matters not in the scope of the officer's public duties.^ But the agreement to pay for such services must be special in order to bind.^ And an agreement by a constable with an execution creditor to charge less than his legal fees for levying an execution and conducting a sale thereunder, is not contrary to public policy.^ But a con- tract for the allowance and payment of a greater compensation to a public officer than that fixed by law for his services is void.* 448, 20 S. E. 733, C4 Am. St. Rep. 2. Warner v. Grace, 14 Minn. 463. 487; Trundler v. Riley, 17 B. Mon. 11. Livingston v. Page, 74 Vt. (Ky.) 396; England v. Davidson, 356, 52 A. 965, 59 L. R. A. 336, 93 11 Adol. & E. 856, 39 Eng. Com. L. Am. St. Rep. 901 and note; Liness 254; McCandless v. Steel Co., 152 V. Hessing, 44 111. 113, 92 Am. Dee. Pa. St. 139, 25 A. 579. 153. 3. Bloom v. Hazzard, 104 Cal. 1. McCandless v. Steel Co., 152 310, 37 P. 1037. Pa. St. 139, 25 A. 579. 4. Fawcett v. Woodbury County, 55 Iowa, 154, 7 N. 483; Fawcett v. 297 § 282* CONTKACTS AGAINST PUBLIC POLICY. Cll. 8 § 282. Controlling the regular administration of justice. — All agreements for pecuniary consideration to control the regu- lar administration of justice are void as against public policy, regardless of the good faith of the parties, and without reference to the question as to whether improper means are contemplated or used in their execution.^ And, hence, a justice of the peace before whom an ajSidavit is filed charging a person with a crime, although his powers are merely those of an examining court, cannot enter into a valid contract with the prosecuting witness to arrest the accused for a pecuniary consideration, when the recompense is contingent upon the amount of property that may be recovered.^ All agreements relating to proceedings in the courts, which may involve anything inconsistent with the full and impartial course of justice therein, are void, though not open to the charge of actual corruption.^ So, where a candidate for judge, in order to secure his elec- tion, pledges himself, if elected, to perform the duties of sucli office for a sum less than one-half the fees allowed by law, and voters are thereby induced to vote for such candidate, and he thus receives a majority of the votes cast for such office at such election, his election, secured by these means, is invalid as against public policy.* Eberly, 58 Iowa, 544, 12 N. 580; Stamper v. Temple, 6 Humph. Moore v. Mahaska Coimty, 61 Iowa, (Tenn.) 113, 44 Am. Dec. 296. 177, 16 N. 79; Farley v. Piatt, 105 1. Brown v. Bank, 137 Ind. 655, Mich. 635, 63 N. W. 521; Griffin v. 37 N. E. 158, 24 L. R. A. 206; Tool Clay County, 63 Iowa, 413, 19 N. Co. v. Norris, 2 Wall. (U. S.) 45, 329; Adams County v. Hunter, 78 56; State v. Johnson, 52 Ind. 197; Iowa, 328, 43 N. W. 208, 6 L. R. A. Oscanyan v. Arms Co., 103 U. S. 615; Kick V. Merry, 23 Mo. 72; 261; Clipfinger v. Hepbaugh, 5 Wilcoxson V. Andrews, 66 Mich. Watts & S. (Pa.) 315, 40 Am. Dec. 553, 33 N. W. 533; Neustadt v. 519 and note. Hall, 58 111. 172; Gilmore v. Lewis, 2. Brown v. Bank, 137 Ind. 655, 12 Ohio, 281; Brown v. Bank, 137 37 N. E. 158, 24 L. R. A. 206. Ind. 655, 37 N. E. 158, 24 L. R. A. 3. Elkhart County v. Crary, 98 206 ; Mitchell V. Vance, 5 T. B. Mon. Ind. 238, 240, 242, 49 Am. Rep. (Ky.) 528, 17 Am. Dec. 96; Pool v. 746. Boston, 5 Gush. (Mass.) 219; 4. State v. Collier, 72 Mo. 13, 37 Am. Rep. 417 and note. 298 Ch. 8 WHAT IS PUBLIC POLICY. § 283 § 283. Assignment of unearned compensation by officer. — It is contrary to public policy for a public officer to assign or give a lien upon his unearned compensation which is given by law, whether such compensation be salary or fees. Any such assignment or lien is void.^ And this is the law in England without exception.^ There is no distinction in principle between the assignment of unearned fees and the assignment of unearned salary. A salary is a fixed sum for a given time, and there can be no doubt as to the amount tcT which the assignee would be entitled. In case of fees to be paid by a county or State, the officials would be required to go into a settlement of the question of amount, with many different persons in some instances, which would confuse and embarrass the public business. So, if there can be any difference, the reason is stronger for holding such assignment of fees void than for holding a like assignment of a salary to be invalid.^ There are cases which are sometimes referred to as announc- ing a different rule.* But in these cases the point of public policy was not considered by the court in any of them; the question involved in them was regarded as relating to the suffi- ciency of the interest of the assignor in the future unearned 1. National Bank v. Fink, 86 681 ; Baurick v. Read, 1 H. Bl. 627; Tex. 303, 24 S. W. 256, 40 Am. Arbuckle v. Cowtan, 3 Bos. & Pul. St. Rep. 833 ; Bliss v. Lawrence, 58 328 ; Wells v. Foster, 8 Mees. & N. Y. 442, 17 Am. Rep. 273; Bangs Wels. 149; Hill v. Paul, 8 CI. & V. Dunn, 66 Cal. 74, 4 P. 963; Fin. 307; Palmer v. Bates, 2 Brod. Schloss V. Hewlett, 81 Ala. 266, 1 & Bing. 673; Liverpool v. Wright, So. 263; Bowen Nat. Bank v. Wil- 28 L. J., N. S. Ch. 871; Davis v. son, 122 N. Y. 478, 25 N. E. 855, Marlborough, 1 Swanst. 79; Stone 19 Am. St. Rep. 507; Field v. Chip- v. Lidderdale, 2 Anst. 533; Lidder- ley, 79 Ky. 260, 42 Am. Rep. 215 dale v. Montrose, 4 Term R. 248. and note; Schwenk v. Wyckoff, 46 3. Bliss v. Lawrence, 58 N. Y. N. J. Eq. 560, 20 A. 259, S L. R. A. 442, 17 Am. Rep. 273. 221; Webb v. McOauley, 4 Bush. 4. Brackett v. Blake, 7 Met. (Ky.) 10; Bell v. McVicker, 8 (Mass.) 335, 41 Am. Dec. 442 and Mo. App. 202; State v. Williamson, note; Marshall v. Quinn, 1 Gray 118 Mo. 146, 23 S. W. 1054, 40 Am. (Mass.), 105, 61 Am. Dec. 414; St. Rep. 358. INIacomber v. Dane, 2 Allen (Mass.), 2. Flarity v. Odium, 3 Term R. 541. 299 § 283 CONTRACTS AGAINST PUBLIC POLICY. Ch. 8 salary to distinguish the cause from those of attempted as- signment of mere expectations, such as those of an expectant heir. In the case of Marshall v. Quinn,^ the matter in dispute was neither fees nor salary of a public officer, but was for the price of work done for a city. In Brackett v. Blake,^ the ques- tion of public policy was not considered. In Macomber v. Dane,' an officer had assigned his salary, but the only question considered was as to whether or not it was assignable on account of its being a mere possibility. Public policy was not discussed nor mentioned in the case. A few cases announce a different rule from the weight of au- thority. In People v, Dayton,^ it was held that the assignment of unearned fees does not fall within the rule sustained by the courts as to salaries. But this doctrine was overruled in a later case.^ In State v. Hastings,^*' it seems to announce a contrary rule, but as in that case the order for the unearned salary, with authority to collect the same, had been transferred to an in- nocent purchaser, the case turned principally on estoppel. The question as to whether or not the assignment of the unearned salary was against public policy, was not raised or discussed. The reason of the rule is that public service may not be so good and efficient when the unearned salary has been assigned as when it has not been, and that the public service is protected by protecting those engaged in the performance of public duties; and this, not upon the ground of their private and undivided interests, but that of the necessity of securing the efficiency of the public service by seeing to it that the funds provided for its maintenance should be received by those who are to perform the work at such periods as the law has appointed for their pay- ment.^^ Or, as the English case holds that emoluments of this sort are granted for the dignity of the State for the decent sup- 5. 1 Gray (Mass.), 105, 61 Am. 122 N. Y. 478, 25 N. E. 855, 9 L. Dec. 414. E. A. 706, 19 Am. St. Rep. 507. 6. 7 Met. (Mass.) 335. 10. 15 Wis. 75. 7. 2 Allen (Mass.), 541. 11. Bliss v. Lawrence, 58 N. Y. 8. 50 How. Pr. (N. Y.) 143. 442, 7 Am. Rep. 273; Peters v. Dav- 9. Bowery Nat. Bank v. Wilson, enport, 104 Iowa, 625, 74 N. W. 6. 300 Ch. 8 WHAT IS PUBLIC POLICY. §§ 283, 2S4: port of those persons who are engaged in the service of it. It would, therefore, be highly impolitic to permit them to be as- signed ; for persons who are liable to be called out in the service of their country ought not to be taken from a state of poverty.^ Dignity of office, in the sense that the term is used in the Eng- lish eases, does not exist in this country ; but there should be a dignity attending every office, in the sense that a proper and in- dependent discharge of its duties inspires respect for the officer and for the office. It is easy to see how great abuses would follow if such trans- fers were permitted. Not only would there exist a constant temptation to anticipate future earnings under the stress of present financial pressure, at usurious rates of discount, but when completed, one of the strongest incentives to industrious exertion — the expectation of pecuniary reward in the near future — would be gone.^^ § 284. Contracts to procure legislation — Lobbying con- tracts. — Contracts, which have for their subject-matter any interference with the creation of taws or their due enforcement, are against public policy and, therefore, void.^ It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with law makers, and the use of an extraneous secret influence, over an important branch of the government. It may not corrupt at all, but if it corrupts or attempts to corrupt some, or if it deceives or tends to deceive or mislead some, that is suffi- cient to stamp its character with the seal of reprobation before 12. Flarity v. Odium, 2 T. Kep. Wells v Foster, 8 Mees. & W. 149; 681. Loser v. Board, 92 Mich. 633, 52 13. Schloss V. Hewlett, 81 Ala. N. W. 956. 290, 1 So. 263; In re Worthington, 1. Ormerod v. Dearman. 100 Pa. 141 N. Y. 9, 35 N. E. 929. By act St. 561, 45 Am. Rep. 391; Spalding of Congress of Feb. 28, 1883, any v. Ewing, 149 Pa. St. 375, 24 A. pledge, mortgage, sale, assignment, 219, 15 L. R. A. 7^7, 34 Am. St. or transfer of any right, claim or Rep. 60S ; Frost v. Belmont, 6 Allen interest in a pension is void. See, (Mass.), 152; Weed v. Black, 2 301 § 284 CONTRACTS AGAINST PUBLIC POLICY. Ch. 8 the courts.^ If a party is employed to render lobby service in procuring the legislation desired by another party, then he can- not recover for his services.^ And a promise to pay a contingent fee on the passage of a bill is void ;* but if the contract is not a lobbying contract it will be upheld.^ In general, a contract to procure or endeavor to procure the passage of an act of the legislature by any illegal method, or by using personal influence, with the members, is void, as against public policy.^ The weight of authority is, that a con- tract for a consideration to use personal influence or other secret methods, not necessarily wrong in themselves, is against public policy and, therefore, void,' And in all these cases where services are rendered for a contingent fee the contract is void MacArthur, D. C. 2Q8; McBratney V. Chandler, 22 Kans. 692, 31 Am. Rep. 213; Cook v. Shipman, 24 111. 614; Harris v. Roof, 10 Barb. (N. Y.) 489; Rose v. Truax, 21 Barb. (N. Y.) 361. 2. Trist V. Child, 21 Wall. (U. S. ) 441; Clipfinger v. Hepbaugh, 5 Watts & S. (Pa.) 315, 40 Am. Dec. 519 and note; Bryan v. Reynolds, 5 Miss. 200, 68 Am. Dec. 55; Wood V. McCann, 6 Dana (Ky.), 366; Hatzfield v. Golden, 7 Watts (Pa.), 152, 32 Am. Dec. 750; Bowman v. Coffroth, 59 Pa. St. 19; Marshall V. Railroad Co., 16 How. (U. S.) 314; Powers v. Skinner, 34 Vt. 274, 80 Am. Dec. 677 ; Coquillard v. Bearss, 21 Ind. 479, 83 Am. Dec. 362; Howell v. Fountain, 3 Ga. 176; Mills V. Mills, 40 N. Y. 543, 100 Am. Dec. 535. 3. Chippewa, etc. R. R. Co. v. Railroad Co., 75 Wis. 248, 44 X. W. 17, 6 L. R. A. 601; Frost v. Bel- mont, 6 Allen (Mass.), 152; Harris V. Roof, 10 Barb. (N. Y.) 489; Sedgwick v. Stanton, 14 N. Y. 289. 4.1 Wood V. McCann, 6 Dana (Ky.), 366; Spalding v. Ewing, 149 Pa. St. 375, 24 A. 219, 15 L. R. A. 727, 34 Am. St. Rep. 608; Compare Bryan v. Reynolds, 5 Wis. 200, 68 Am. Dec. 55 ; Workman v. Campbell, 46 Mo. 305; Denison v. Crawford, 48 Iowa, 211; Burbridge v. Fockler, 2 McAr. D. C. 407. See, also. Tool Co. V. Norris, 2 Wall. (U. S.) 48, 56; Oscanyan v. Arms Co., 103 U. S. 261; Woodstock Iron Co. v. Ex- tension Co., 129 U. S. 643, 9 S. Ct. 402. 5. Houlton V. Mchol, 93 Wis. 393, 67 N. W. 715, 33 L. R. A. 166, 57 Am. St. Rep. 928. 6. Burney v. Ludling, 47 La. Ann. 73, 17 So. 877 ; Frost v. Belmont, 6 Allen (Mass.), 152; Houlton v. Dunn, 60 Minn. 26, 61 N. W. 898, 30 L. R. A. 737 and note, 51 Am. St. Rep. 493. 7. Trist V. Child, 21 Wall. (U. S.) 441; Spalding v. Ewing, 149 Pa. St. 375, 24 A. 219, 15 L. R. A. 727, 34 Am. St. Rep. 608 ; McBrat- ney V. Chandler, 22 Kan. 692, 31 Am. Rep. 213; Sweeney v. McLeod, 15 Oreg. 339, 15 P. 275; Powers v. 302 Cb. 8 WHAT IS PUBLIC POLICY. §§ 284, 285 irrespective of the means nsed.^ But all professional contracts for preparing and arguing a case before a legislative body or its committee are valid. ^ And contracts which contemplate, not the influencing of the legislature, but onlj meeting the con- ditions of legislative action, are generally valid. Thus, a con- tract to use personal influence to obtain the consent of property holders necessary to enable a city council to pass an ordinance authorizing the construction of an elevated railway is valid.^° So, also, where a city agrees to pass a certain ordinance on the consent of a certain number of taxpayers, a contract by which the mayor of the city was employed to procure the number is valid." So where one with large experience in regard to public lands, is engaged to conduct the business of procuring certain lands, the contract is valid. ^ And so the distribution of cir- culars for the purpose of influencing legislation is a valid con- sideration for a contract. ^^ § 285. Compensation for professional services. — An at- torney may claim compensation for purely professional ser- vices performed in connection witb legislation in which his client has an interest. ^^ Within this category are included draft- ing the petition to set forth the claim, attending to the taking of Skinner, 34 Vt. 274, 80 Am. Dec. Russell v. Burton, 66 Barb. (N. Y.) 677. 539. 8. Marshall v. Railroad Co., 16 10. Union El. R. R. Co. v. Nix- How. (U. S.) 314; Burmudez As phalt Co. V. Critchfield, 62 111. App 224; Chippewa Valley R. R. Co. v Railroad Co., 75 Wis. 224, 44 N, W. 17, 6 L. R. A. 601; Wood v on, 199 111. 235, 65 N. E. 314. 11. Bridgeford v. Tuscumbia, 16 Fed. Rep. 910. 12. Houlton V. Nichol, 93 Wis. 393, 67 N. W. 715, 33 L. R. A. 166, McCann, 6 Dana (Kj.) , 366; Co- 57 Am. St. Rep. 928. quillard v. Bearss, 22 Ind. 479. 13. Kansas, etc. R. R. Co. v. 9. Chesebrough v. Conover, 140 ]\IcCoy, 8 Kan. 359. N. Y. 382, 35 N. E. 633; Strathman 14. Spalding v. Ewing, 149 Pa. V. Gorla, 14 Mo. App. 1 ; W^ildey v. St. 375, 24 A. 219, 15 L. R. A. 727, Collier, 7 Md. 273, 61 Am. Dec. 346; 34 Am. St. Rep. 608; Bryan v. Rey- Trist V. Child, 21 Wall. (U. nolds, 15 Wis. 200, 68 Am. Dec. S.) 441; Yates v. Robertson, 80 57. Va. 475; Miles v. Thorne, 38 Cal. 335, 90 Am. Dec. 384 and note; 303 §§ 285, 286 CONTRACTS AGAINST PUBLIC POLICY. Ch. 8 testimony, collecting facts, preparing arguments, and submit- ting them, orally or in writing, to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be in- fluenced. They rest on the same principle of ethics as profes- sional services rendered in a court of justice, and are no more exceptional. But such services are separated by a broad line of demarcation from personal solicitations, and other means and appliances, tending to corrupt the lawmakers.^" It is the right of every party interested in any proposed legis- lation to employ, and agree to pay, an agent to draft a bill, and fairly and openly to explain it to a legislative committee or any member of the legislature, and ask to have it introduced; and a contract with an agent which does not call for more, and services under it which does not go further, are not against public policy. ■^^ § 286. Use of improper influence. — If a contract is legal, it will not be made illegal by the misconduct on the part of the plaintiff in carrying it out.^ If the contract is legal, the fact that the plaintiff did things against public policy, if it be a fact, can be considered only as bearing by way of illustration upon the question whether the tendency of the contract necessarily was to induce the doing of such things.^ If the only service on the part of the plaintiff promised by him, or contemplated by either party at the time, were legitimate services, the contract is valid.' But a contract contemplating the use of secret influence with 15. Trist V. Child, 21 Wall. (U. 2. Powers v. Skinner, 34 Vt. 274, S.) 441. See, also. Tool Co. v. 284, 80 Am. Dec. 677. Norris, 2 Wall. (U. S.) 48, 56; 3. Fuller v. Davis, 18 Pick. Oscanyan v. Arms Co., 103 U. S. (Mass.) 472, 480; Trist v. Child, 261; Woodstock Iron Co. v. Exten- 21 Wall. (U. S.) 441, 450; Mar- sion Co., 129 U. S. 643, 9 S. Ct. shall v. R. R. Co., IB How. (U. S.) 402. 314, 335; Lyon v. Mitchell, 36 N. 16. Chesebrough v. Conover, 140 Y. 235, 241, 93 Am. Dec. 502; N. Y. 382, 35 N. E. 633. Barry v. Capen, 151 Mass. 99, 23 1. Howden v. Simpson, 10 Ad. & N. E. 735, 6 L. R. A. 808. El. 793, 818, 819, 2 Per. & Dav. 714, 740, 9 CI. & Fin. 61, 68. 304 Ch. 8 WHAT IS PUBLIC POLICY. §§ 286, 287 public ojfBcers is void as against public policy.* So, a contract to bribe or corruptly influence officers of a foreign government will not be enforced in the courts of the United States, not from any consideration of that government or any regard for its policy, but from the inherent viciousness of the transaction, its repugnancy to our morality and the pernicious effect which its enforcement by our courts would have upon our people.^ Contracts to influence legislative action are void as against public policy.® § 287. Contract for securing a pardon. — It is generally held that a contract for services in securing a pardon of one con- victed of crime is not illegal, if the employment of improper methods is not contemplated.^ The presumption of law is in favor of the legality of contracts, and, the object sought to be acomplished being lawful, unless it affirmatively and distinctly appears that it was contemplated that means were to be resorted to for its accomplishment which the law will not sanction, the courts cannot declare the contract void. So, there can be noth- ing unlawful or opposed to public policy in simply employing a party to secure a pardon by proper means.^ 4. Hutchen v. Gibson, 1 Bush. 24 S. E. 544, 32 L. R. A. 413, 57 (Ky.) 270; Murray v. Wakefield, Am. St. Rep. 847. 9 Mo. App. 591; Ormerod v. Dear- 1. Moyer v. Canfieny, 41 Minn, man, 100 Pa. St. 561, 45 Am. Rep. 242, 42 N. W. 1060. See, also, Tim- 391; Wright v. Rindskoflf, 43 Wis. othy v. Wright, 8 Gray (Mass.), 344; Rhodes v. Neal, 64 Ga. 704, 522, Rau v. Boyle, 5 Bush (Ky.), 37 Am. Rep. 93; Wildey v. Collier, 253. 7 Md. 273, 61 Am. Dee. 346. 2. Chadwick v. Knox, 31 N. H. 5. Watson v. Murray, 23 N. J. 226, 64 Am. Dee. S29; Formby v. Eq. 257; Hope v. Hope, 8 DeG. M. Pryor, 15 Ga. 258; Brewsen v. & G. 731. Engler, 49 N. Y. Super. Ct. 172; 6. Bermudez Asphalt Paving Co. Compare Hainey v. Lewis, 54 Iowa, V. Critchfield, 62 111. App; 221 ; Bar- 301, 6 N. 495, 37 Am. Rep. 202 and ber Asphalt Paving Co. v. Botsford, note; Kribben v. Haycraft, 26 Mo. 56 Kans. 532, 44 P. 3; Harrington 396; Hatzfield v. Gulden, 7 Watts V. Crawford, 61 Mo. App. 221; (Pa.), 152, 32 Am. Dec. 750. Honaker v. Board, 42 W. Va. 170, 305 CHAPTER IX. liimitirag Liability for Negligence. AETICLE I. Liability as to Carkiage. Section 288. Common Carriers — Railroad Companies. 289. Express Companies. 290. Liability Limited Beyond Its Own Line of Carriage. 29 L Limiting Liability as to Losses Occurring not from Its Own Negligence. § 288. Common carriers. — A common carrier cannot as a general rule divest itself of liability, either by special contract or notice, where damages or loss results from its own negligence, fraud, or misfeasance.^ A common carrier cannot lawfully stipulate for exemption from responsibility when such exemp- 1. Jones V. Railroad Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514; Union. Pac. R. R. Co. V. Rainey, 19 Colo. 225, 34 P. 986; Transportation Co. V. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Sager v. Railroad Co., 31 Me. 228, 50 Am. Dec. 659; Rallman v. Express Co., 3 Kans. 211; Pratt v. Railroad Co., 102 Mass. 557; Farn- ham V. Railroad Co., 55 Pa. St. 58 ; Indianapolis R. R. Co. v. Allen, 31 Ind, 394; Berry v. Cooper, 28 Ga. 543; Railroad Co. v. Stevens, 95 U. S. 655 ; Rose v. Railroad Co., 39 Iowa, 246; Annas v. Railroad Co., 67 Wis. 46, 30 N. W. 282, 58 Am. Rep. 848; Jacobus v. Railroad Co., 20 Minn. 125, 18 Am. Rep. 360; Missouri Pac. Railroad Co. v. Iney, 71 Tex. 409, 9 S. W. 346, 10 Am. St. Rep. 758 ; Willis v. Railroad Co., 65 Me. 489; Flinn v. Railroad Co., 1 Houst. (Del.) 469; Railroad Co. V. Curran, 19 Obio St. 1, 2 Am. Rep. 362; Railroad Co. v. Hopkins, 41 Ala. 486, 94 Am. Dec. 607; Rail- road Co. V. Wynn, 88 Tenn. 330, 14 S. W. 311 ; Moslin v. Railroad Co., 14 W. Va. 180, 35 Am. Rep. 748; Vaughn v. Railroad Co., 62 Mo. App. 461; Maxwell v. Railroad Co., 48 La. Ann. 383, 19 So. 287; Springs V. Railroad Co., 46 S. Car. 104, 24 S. E. 166; Railroad Co. v. Sayers, 26 Gratt. (Va.) 328; Orendorff v. 306 oil. 9 MMITI.NCi LIAUII^ITY I'OK NEGLIGENCE. § 288 tion is not just and reasonable/ because such contract is against public policy and is therefore void.^ A railroad company, in the carriage of goods, is subject to the liability of a common carrier, and must answer for all losses not occasioned by the act of God or the public enemy, and cannot by special contract limit or relieve itself from this liability.* A common carrier may make special contracts of carriage with cus- tomers, and thus relieve itself of many of the responsibilities imposed by law, but it cannot contract against the consequences of its own negligence.'' And it cannot limit its liability in any respect by such special contract, where the shipper is not af- forded an opportunity to contract for the services required of the carrier by law without restrictions.^ But where a carrier, receiv- ing merchandise to be shipped and to collect on delivery, stipu- lates that its liability, while holding it for collection shall be that of a warehouseman, such an agreement is valid if there is nothing to show that it is unreasonable ; and the carrier will not be liable for the destruction, by a mob, of the merchandise so held, without negligence on its part."" An express stipulation Express Co., 3 Bush. (Ky.) 194, 26 L. R. A. 527 and note, 39 Am. St. Am. Dec. 207; Taylor v. Railroad Rep. 230 and note; St. Joseph, etc. Co., 39 Ark. 148; Express Co. v. R. R. Co. v. Palmer, 38 Neb. 463, Moon, 39 Miss. 822; Fonseka v. 56 N. W. 957, 22 L. R. A. 335. Steamship Co., 153 Mass. 553, 27 4. St. Joseph, etc., R. R. Co. v. N. E. 665, 12 L. R. A. 340 and note, Pahiier, 38 Neb. 463, 56 N. W. 957 25 Am. St. Rep. 660; Hoadley v. 22 L. R. A. 335. Transportation Co., 115 Mass. 304, 5. Pacific Express Co. v. Wallace, 15 Am. Rep. 106. 60 Ark. 100, 29 S. W. 32; Grace v. 2. New York Cent. R. R. Co. v. Adams, 100 Mass. 505, 1 Am. Rep. Lockwood, 17 Wall. (U. S.) 357; 131; Hoadley v. Transportation Railroad Co. v. Stevens, 90 U. S. Co., 115 Mass. 304, 15 Am. Rep. 655. 100. 3. Pennsylvania Railroad Co. v. 6. Railroad Co. v. Cravens, 57 Henderson, 51 Pa. St. 315; Arm- Ark. 112, 20 S. W. 803, 18 L. R. A. strong V. Express Co.. 159 Pa. St. 527 and note, 38 Am. St. Rep. 230 640, 28 A. 448; Louisville R. R. Co. and note. V. Dies, 91 Tenn. 177, 18 S. W. 206, 7. Pacific Express Co. v. Wallace, 30 Am. St. Rep. 871; Pacific Ex- 60 Ark. 100, 29 S. W. 32. See, press Co. v. Wallace, 60 Ark. 100, also. Constable v. Steamship Co.,' 29 S. W. 32; Railroad Co. v. Cra- 154 U. S. 51, 14 S. Ct. 1062. vens, 57 Ark. 112, 20 S. W. 803, 18 307 § 288 CONTEACTS AGAINST PUBLIC POLICY. Ch. D by any common carrier for hire in a contract of carriage that he shall be exempt from liability caused by his own or his ser- vants' negligence is void as against public policy.^ But in England, 'New Jersey and New York a common carrier may stipulate against his own negligence, and the contract will be upheld.^ In the absence of Federal legislation, the validity of a stipu- lation of a common carrier who does an interstate business, will be determined by the common law/" Contracts are often made by railroad companies, with the next of kin against liability for negligence to the employee, where the railroad company is re- leased from all damages that may accrue to the employee by reason of the railroad negligence. Generally such contracts are void as against public policy. ^^ But other cases hold that such contracts are not against public policy,^ though this doc- trine is against the weight of authority. The employee may stipulate that, if injured through the fault of the railroad com- pany, he will then elect whether to accept certain benefits by 8. Express Co. v. Caldwell, 21 Wall. (U. S.) 264; Chicago, etc. E. R. Co. V. Davis, 159 111. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Atchinson, etc. R. R. Co. v. Lawler, 40 Neb. 356, 58 N. W. 968; Black V. Transportation Co., 55 Wis. 319, 13 N. 244, 42 Am. Rep. 713; Liver- pool, etc., Steamship Co. v. Ins. Co., 129 U. S. 397, 9 S. Ct. 480; McFad- den V. Railroad Co., 92 Mo. 343, 4 S. W. 681, 1 Am. St. Rep. 721; Grogan v. Express Co., 114 Pa. St. 523, 7 A. 134, 60 Am. Rep. 360; Burk V. Railroad Co., 150 Pa. St. 170, 24 A. 341, 30 Am. St. Rep. 805; Lindsley v. Railroad Co., 36 Minn. 539, 33 N. W. 7, 1 Am. St. Rep. 692; Hull v. Railroad Co., 41 Minn. 510, 41 N. W. 936, 5 L. R. A. 587, 16 Am. St. Rep. 722; Boehl v. Rail- road Co., 44 Minn. 191, 46 N. W. 333; Abrams v. Railroad Co., 87 Wis. 485, 58 N. W. 780, 4 Am. St. Rep. 55. 9. Peck V. Railroad Co., 10 H. L. Cas. 473; McConeley v. Railroad Co., L. R. 8 Q. B. 57; Kenney v. Railroad Co., 125 N. Y. 422, 26 N. E. 626; Mynard v. Railroad Co., 71 N. Y. 180, 27 Am. Rep. 28; Nicho- las V. Railroad Co., 89 N. Y, 370; Kinney v. Railroad Co., 32 N. J. L. 409, 90 Am. Dec. 675. 10. Davis V. Railroad Co., 93 Wis. 470, 67 N. W. 16, 1132, 33 L. R. A. 654, 51 Am. St. Rep. 935. 11. Tarbell v. Railroad Co., 73 Vt. 347, 51 A. 6, 56 L. R. A. 656, 87 Am. St. Rep. 734. 12. Griffiths v. Dudley, 9 Q. B. D. 357 ; Railroad Co. v. Bishop, 50 Ga. 465; International, etc. Rail- road Co. v. Hinzie, 82 Tex. 623, 18 S. W. 672. 308 ( II. \) LIMITING LIABILITY FOR NEGLIGENCE. §§ 288, 289 means of a relief fund created by the company alone or with, other companies, and that he will not claim double compensa- tion.^^ Of course tlie g;eneral rule is that a common carrier cannot stipulate against its own carelessness to avoid damages to its customers, but tliis doctrine does not hold and is not applicable to special contracts. Thus, a railroad company is not liable under a special contract, whereby the company was released and discharged from all liability for loss or damages to circus property. Where a railroad company makes a special contract with the owners of a circus company to haul their special cars, the railroad company is not a common carrier under such cir- cumstances and its special contract against damages, from its 0"\vn negligence, is valid. ^* In such a case the railroad com- pany is not required as a common carrier to take a circus train of this kind on a special schedule, and therefore the contract is not compulsory, and the circus proprietors must stand by their contract exempting the railroad company from damages caused by the company's own negligence ; the company was not a common carrier as to the circus cars, and the special contract was valid. ^^ § 289. Express companies. — As stated in the preceding sec- tion an express company or other common carrier cannot, by special contract relieve itself from consequences of its own negli- gence.^ The express company has the right to demand from the consignor such information as will enable it to decide on the 13. Pittsburg, etc. Eailroad Co. 506, 14 C. C. A. 257, 24 U. S. App. V. Moore, 152 Ind. 345, 53 N. E. 589, 30 L. R A. 161 and note. 290, 44 L. R. A. 638; Johnson v. 15. Wilson v. Railroad Co., 129 Railroad Co., 163 Pa. St. 127, 29 Fed. Rep. 774. A. 854; N. Y. Cent. R. R. v. Lock- 1. Armstrong v. Express Co., wood, 17 Wall. (U. S.) 357. 21 L. 159 Pa. St. 640, 28 A. 148; Express Ed. 627. Co. V. Caldwell, 21 Wall. (U. S.) 14. Wilson V. Railroad Co., 129 264; Pacific Express Co. v. Wallace, Fed. Rep. 774; Chicago, etc. Rail- 60 Ark. 100, 29 S. W. 32; Durgin road Co. v. Wallace, 66 Fed. Rep. v. Express Co., 66 N. H. 277, 20 A. 328, 9 L. R. A. 453. 309 §§ 289, 290' CONTKACTS AGAINST PUBLIC POLICY. Ch. 9 proper compensation to charge for the risk, and the degree of care to bestow in discharging its trust; and a limitation of its liability not to exceed fifty dollars unless the value of the goods or package forwarded is truly stated, is reasonable and con- sistent with public policy f but this limitation must be brought home to the knowledge of the consig-nor.^ A distinction is to be made between the effect of this notice by a carrier by which it is sought to discharge the carrier from duties which the law has annexed to his employment and those designed simply to insure good faith and fair dealing of his employer. In the former, notice without assent to the attempted restriction, is ineffectual, while in the latter, actual notice alone will be sufficient. ■* An express company cannot by special contract limit its lia- bility for negligence or misconduct.^ § 290. Limiting liability beyond its own line of carriage. — At common law the carrier is not liable for loss, in the absence of special contract, beyond the point at which it is to deliver the goods to a connecting line. But when the contract of the ship- per is with the carrier first receiving the goods, that such car- rier should deliver the goods at their destination, even though it contemplated doing so, through intermediate carriers, then it assumes the liability of such character for every part of the route. ^ But where a carrier receives goods marked for a particular designation beyond its terminus of its line, and does not ex- 2. Oppenheimer v. Express Co., 5. Armstrong y. Express Co., 159 69 111. 62, 18 Am. Rep. 596. Pa. St. 640, 28 A, 148; Southern 3. Opperilieimer v. Express Co., Express Co. v. Hunnicutt, 54 Miss. 69 111. 62, 18 Am. Rep. 596. 566, 28 Am. Rep. 385; Boscowitz 4. Orange County Bank v. Brown, v. Express Co., 93 111. 523, 34 Am. 9 Wend. (N. Y.) 115, 24 Am. Dec. Rep. 191; Bank v. Express Co., 93 129; Farmers' Bank a\ Transpor- U. S. 174; Muser v. Express Co., 74 tation Co., 23 Vt. 186, 56 Am. Dec. Mo. 538. 68; Western Transportation Co. v. 1. St. Joseph, etc., R. R. Co. v. Newhall, 24 111. 466, 76 Am. Dec. Palmer, 38 Neb. 463, 56 N. W. 957, 760 and note. 22 L. R. A. 335. 310 Oh. i) I.lMlTl>NCi LIABILITY JbOR NEGLIGENCE. § 290 pressly undertake to deliver them at the point designated, the implied contract is only to transport over its own line, and forward, according to the usual courso of business, from its terminus.^ The prevailing rule in this country is that a common carrier receiving goods to be transported over several lines, including his own, is not responsible for negligence of other carriers in the route beyond his own line, unless he has specially contracted to transport the property to its destination ; and that receiving goods marked for a place beyong its own terminus does not im- port an undertaking to carry to the destination naraed.^ It is held in Illinois that a stipulation in a bill of lading that the carrier will not be liable beyond its own line, does not bind the shipper unless he has had notice of it; that is he must read it* The first carrier occupies the relation of a mere forwarder of the goods from the terminus of its carriage. Such relation does not have the effect of making its stipulations for exemptions inure to the benefit of the connecting carrier, nor can it for any purpose, bind the shipper or the ovnier of the goods. ^ 2. Mulligan v. Raihoad Co., 'M> 612; Burroughs v. Railroad Co., 100 Iowa, 181, 14 Am. Rep. 514; Rome, Mass. 26; Hadd v. Express Co., 52 etc. R. R. Co. V. Sullivan, 25 Ga. Vt. 335, 36 Am. Rep. 757 and note; 228; MclVnilan v. Railroad Co., 16 Root v. Railroad Co., 45 N. Y. 524; Mich. 920; Smith v. Express Co., Crawford v. Railroad Co., 51 Miss. 108 Mich. 572, 66 N. W. 479; Far- 222, 24 Am. Rep. 626; Grindle v. mers, etc.. Bank v. Transportation Express Co., 67 Me. 317, 24 Am. Co., 23 Vt. 186, 56 Am. Dec. 68; Rep. 31; Knight v. Railroad Co., 13 Hood V. Railroad Co., 22 Conn. 1, R. I. 572, 43 Am. Rep. 46; Dunbar 502; Keller v. Railroad Co., 174 Pa. v. Railroad Co., 36 S. Car. 110, 15 S. St. 162, 34 A. 455; Darling v. Kail- E. 357, 31 Am. St. Rep. 860. road Co., 11 Allen (Mass.), 295; 4. Chicago, etc. R. R. Co. v. Root V. Railroad Co., 45 N. Y. 524; Simon, 160 111. 648, 43 N. E. 396. United States Express Co. v. Rush, 5. Babcock v. Railroad Co., 49 24 Ind. 403; Ortt v. Raihonrl Co., N. Y. 491; Camden, etc. R. R. Co. 36 Minn. 396, 31 N. W. 519. v. Forsyth, 61 Pa. St. 81. See, also, 3. Lawrence v. Railroad Co., 15 Union State Bank v. Railroad Co. Minn. 313; McEacherman v. Rail- (Neb.), 59 L. R. A. 939. road Co., 101 Mich. 264, 59 N. W. 311 § 291 CONTKACTS AGAINST PUBLIC POLICY. Ch. 9 § 291. Limiting liability as to losses occurring not from its own negligence. — A common carrier may limit its liability from losses or injuries occurring from other causes than its own negligence, as from accident, and for which it would not be liable as an insurer.^ And so a stipulation in a bill of lading exempting a carrier from liability for loss by fire, which does not happen through the negligence of the carrier, is reasonable and will be sustained,^ In ISTebraska, a common carrier cannot limit its common law liability by special contract, and this ap- plies to interstate shipments.^ Generally a common carrier cannot contract to relieve itself from its own negligence. In case an excursion ticket is sold for less than the full rate, as a condition that the passenger will assume all risks from acci- dents, he can then hold the carrier responsible for injuries caused to him by its negligence, but this fact he must affirma- tively show.* In the transportation of mail by a railroad com- pany, if a registered package is lost, the company is not liable to the owner of the package, even if the loss was caused by the negligence of its servants.^ 1. Chicago, etc. R. R. Co. v. Davis, 159 III. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Davis v. Railroad Co., 66 Vt. 290, 29 A. 313. 2. Davis V. Railroad Co., 66 Vt. 290, 29 A. 313, 44 Am. St. Rep. 852. 3. St. Joseph, etc. R. R. Co. v. Palmer, 38 Neb. 463, 56 N. W. 957, 22 L. R. A. 335. 4. Crary v. Railroad Co., 203 Pa. St. 525, 53 A. 363, 59 L. R. A. 815, 93 Am. St. Rep. 778. 5. Boston Ins. Co. v. Railroad Co., 118 Iowa, 423, 92 N. W. 88. 59 L. R. A. 796. 312 Cll. 9 LIMITING LIABILITY FOil NEGLIGENCE. § 292 ARTICLE II. Limitation by Notice on Ticket. Section 292. Limitation on Tickets — Mileage. 293. Tickets as a Contract — Limitations. 294. Coupon Ticket of Carriers — Rights of Connecting Lines. 295. Free Passes. § 292. Limitation on tickets — Mileage. — Where a common carrier cannot limit its liability by any notice on tickets sold, it cannot, after selling a return ticket, exact as a condition of re- turn on the ticket, that the passenger shall sign it before a given agent who shall stamp it, though the ticket was sold at a reduced price, and recites such condition on its face.^ A carrier, in the absence of statute to the contrary, may re- strict the use of the ticket to the use of the original purchaser. The words " not transferable," printed on the ticket, will have that effect, and a third party can acquire no right by virtue of such a ticket.^ But if a third party, without attempting to con- ceal his identity, presents a non-transferable ticket issued to another, and his claim is recognized by the conductor, he is en- titled to the rights of a passenger.^ After a non-transferable ticket has been used by a third party, it may be forfeited in the hands of the owner, if the use by another was known to him and by his consent or negligence.* A mileage book is a contract between the railroad company and passenger, and the conductor has a right to detach coupons from any part of the book.^ Some railroad companies issue mileage coupons not to be used except when the company has no ticket office at the station where the passenger enters the 1. Phillips V. Banking Co., 93 note; Cody v. Railroad Co., 4 Saw. Ga. 856, 20 S. E. 247.' See, also, C. C. 114. Solan V. Railroad Co., 95 Iowa, 260, 3. Robstelli v. Railroad Co., 33 63 N. W. 692, 28 L. R. A. 718, 58 Fed. Rep. 796. Am. St. Rep. 430. 4. Frederick v. Railroad Co., 53 2. Way V. Railroad Co., 64 Iowa, Md. 201. 48, 19 N. 828, 52 Am. Rep. 431 and 5. Eaton v. Mclntire, 88 Me. 578, 34 A. 528. 313 §§ 292, 293 CONTBACTS AGAINST PUBLIC POLICY. Ch. 9 train. In such case, if the ticket agent at the place of taking the train, has no exchange tickets, the holder of the mileage ticket can offer his coupon, which is complying with his con- tract, and the conductor has no right to expel him from the train.^ And so a passenger who buys a round-trip ticked good only on the day of sale, has a right to return that day on the only train running, though it is not scheduled to stop at his station.^ § 293. Ticket as a contract — Limitations. — Under the earlier decisions, and some late decisions, it is held that a rail- road ticket is merely a receipt or token of evidencing the pay- ment of the passage money, and showing that the purchaser has paid the toll enabling him to ride from one place to another.^ But by most courts a ticket is now held to be a contract between the purchaser and the railroad company.^ The purchaser of a ticket does not ordinarily enter into any special negotiations by which the carrier undertakes to carry him, for the custom estab- lished by the carrier and those doing business with him has fixed the terms upon which he may be carried ; and if he accepts a ticket limiting the time within which he may use it for pas- sage, or designating the train upon which he may use it for pas- sage, or designating the train upon which it shall be used, he is bound thereby. The carrier may offer a ticket good upon 6. Pennsylvania R. R. Co. v. Len- N. Y. 455 ; Dietrich v. Railroad Co., hart, 120 Fed. Rep. 61, 35 Ch. L. 71 Pa. St. 432, 10 Am. Rep. 711; News, 181, 56 C. C. A. 467; N. Y. Chicago, etc., R. R. Co. v. Dumser, and Erie R. R. Co. v. Winter, 143 161 111. 190, 43 N. E. 698; Railroad U. S. 60, 12 S. Ct. 356; Pittsburg, Co. v. Bartram, 11 Ohio St. 457; etc. R. R. Co. V. Russ, 57 Fed. Rep. Burdick v. People, 149 III. 600; 822, 6 C. C. A. 597, 18 U. S. App. Chicago, etc., R. R. Co. v. Mulford, 279; Northern Pac. R. R. Co. v. 162 111. 522; 44 N. E. 861, 35 L. R. Pauson, 70 Fed. Rep. 585, 30 L. R. A. 599. A. 730, 17 C. C. A. 287, 44 U. S. 2. Sleeper v. Railroad Co., 100 App. 178. Pa. St. 259, 45 Am. Rep. 380; New 7. Illinois Cent. R. R. Co. v. Har- York, etc., R. R. Co. v. Bennett, 50 ris, 81 iliss. 208, 32 So. 309, 59 L. Fed. Rep. 496, 1 C. C. A. 544, 6 U. R. A. 742, 95 Am. St. Rep. 466. S. App. 95 ; Railroad Co. v. Fitz- 1. Hubbard v. Railroad Co., 15 gerald, 47 Ind. 79. 314 Ch. 9 LIMITING LIABILITY FOR NEGLIGENCE. § 293 certain trains within a specified time, and to be used only by the person purchasing it, and upon such terms as are embraced therein. When a passenger knowingly accepts a ticket containing limitations, and imposing upon him certain duties to make it available for passage, he is bound thereby.^ As between the passenger and the conductor, the face of the ticket is conclusive evidence of the passenger's right to ride.* There is a conflict upon the question of the rights and duties of the conductor and passenger respectively, when an authorized agent sells a passenger a ticket different from what he asked and pay for, and one which does not entitle him to the passage desired. One line of authorities holds that the conductor cannot be expected to listen to explanations, and the passenger should either pay his fare or walk quietly from the car, and then sue for breach of the contract ; but should he attempt to remain on the train without paying fare, and is expelled, no recovery can be had.^ But the better doctrine is that the conductor under such cir- cumstances has no right to expel the passenger, and if he does so, the company is liable in damages therefor.® And condi- 3. Callaway v. Mallett, 15 Ind. 737, 9 L. R. A. 132 and note, 26 App. 366, 44 N. E. 198, 57 Am. St. Am. Rep. 913; Sheldon v. Railroad Rep. 238. Co., 29 Ohio St. 214; Townsend v. 4. Bradshaw v. Railroad Co., 135 Railroad Co., 56 N. Y. 295, 5 Am. Mass. 407, 46 Am. Rep. 481 and Rep. 419; Frederick v. Railroad Co., note; McKay v. Railroad Co., 34 37 Mich. 342, 26 Am. Rep. 531. W. Va. 65, 9 L. R. A. 132 and note, 6. Murdock v. Railroad Co., 137 11 S. E. 737, 26 Am. St. Rep. 913; Mass. 293, 50 Am. Rep. 307; Phila., Townsend v. Railroad Co., 56 N. Y. W. and B. Railroad Co. v. Rice, C4 295, 15 Am. Rep. 419; Boyland v. Md. 63. 21 A. 97; Bradshaw v. Railroad Co., 132 U. S. 146, 10 S. Railroad Co., 135 Mass. 407, 46 Ct. 50. Am. Rep. 481 and note; Head v. 5. Railroad Co. v. Vanatta, 21 Railroad Co., 79 Ga. 358, 3 S. E. 111. 188, 14 Am. Dec. 96; Rose v. 621, 11 Am. St. Rep. 434; Railroad Railroad Co., 106 N. Car. 168, 11 v. Fix, 88 Ind. 381, 45 Am. Rep. S. E. 526; Peabody v. Railroad Co., 464; Pa. Railroad Co. v. Bray, 125 21 Oreg. 121, 20 P. 1053, 12 L. R. Ind. 229, 25 X. E. 439; P.^iilroad Co. A. 823 and note; McKay v. Rail- v. Martino, 2 Tex. Civ. App. 634. road Co., 34 W. Va. 65, 11 S. E. 315 §§ 293, 294 CONTBACTS AGAINST PUBLIC POLICY. Ch. 9 tions printed on the back of a passenger's ticket, exempting a carrier from liability for loss or damages to baggage under cer- tain circumstances or beyond a specified amount, are not bind- ing on the passenger, if not signed or seen by him, nor referred to in the contract on the face of the ticket, nor otherwise brought to his attention,'' This rule also applies to bills of lading.* The question of notice must be submitted to the jury as a question of fact." § 294. Coupon tickets of carriers — Rights of connecting lines. — Eailroad companies generally sell tickets with coupons for carriage over connecting lines. But the selling company does not guarantee that the other carriers will honor such cou- pons and is not responsible in case the connecting line refuses to accept such coupon, as the selling company is only an agent; the selling company does not impliedly contract that such tickets will be recognized and honored by such connecting lines, but merely that it is the agent of such lines and has authority to issue such tickets.^ And so, a ticket issued with coupons " good for one first-class passage " for an entire journey does not con- stitute a contract by the selling company to transport the holder over the connecting lines, so as to make it liable for failure of the connecting lines to honor the coupons.^ 7. The Majestic, 17 U. S. 597. Railways, 185; Chicago, etc., R. R. See, also, Richardson v. Rountree Co. v. Dumser, 161 111. 190, 43 N. (1894), App. Cas. 217; Henderson E. 698; Pennsylvania Railroad Co. V. Stevenson, L. R. 2 H. L. 470. v. Connell, 112 111. 295, 54 Am. Rep. 8. Railroad Co. v. Navigation, 16 238 and note. Wall. (U. S.) 318. 2. Chicago, etc., R. R. Co. v. Mul- 9. Malone v. Railroad Co., 12 ford, 162 111. 522, 4~4 N. E. 861, 35 Gray (Mass.), 388, 74 Am. Dec. L. R. A. 599. See, also, Knight v. 598. See, also, Brown v. Railroad Railroad Co., 56 Me. 235; Fursten- Co., 11 Cush. (Mass.) 97; Trans- heim v. Railroad Co., 9 Heisk. portation Co. v. Thielbar, 86 111. (Tenn.) 238; Mosher v. Railroad 71; Rawson v. Railroad Co., 48 Co., 127 U. S. 390, 8 S. Ct. 324; N. Y. 212, 8 Am. Rep. 543; Wilson Hood v. Railroad Co., 22 Conn. 1; V. Railroad Co., 21 Gratt. (Va.) Young v. Railroad Co., 115 Pa. St. 654. 112, 7 A. 741; Lundy v. Railroad 1. Chicago, etc., R. R. Co. v. Co., 66 Cal. 191; 4 P. 1193, 56 Am. Mulford, 162 111. 522, 44 N. E. 861, Rep. lOO. 35 L. R. A. 599; 2 Redfield on 316 Ch. LIMITING LIABILITY FOR NEGLIGENCE, § 295 § 295. Free passes. — In many jurisdictions one who accepts and uses a free pass, as a pure gratuity, on condition that he will assume all risk of personal injury, must be deemed to have accepted it on that condition whether he reads it or not. Such a contract, exempting a carrier from liability, is not prohibited by any rule of public policy, and is effectual to exonerate the carrier from liability for the negligence of his servants.^ Under this dietrine where a party accepts a pass, he does so on the conditions fully expressed therein, whether he actually reads them or not.^ In England a common carrier has practically unlimited power to provide by contract against liability for negligence,^ even gross negligence.^ In Xew York and New Jersey a carrier may contract with free passengers against liablity for all degrees of negligence, provided the exemption is in clear and unmistakable terms.^ And some courts seek to distinguish the different de- grees of negligence and concede the right to make such exemp- tions as to a free passenger, in all cases of ordinary negligence, but decline to extend the doctrine to cases of gross negligence.' 1. Northern Pac. R. R. Co. v. 3. McCawley v. Railway Co., L. Adams, 187 U. S. 643, 192 U. S. R. 8 Q. B. 57 ; Peck v. Railway, 10 440; Muldoon v. Railroad Co., 10 H. L. Cas. 473. Wash. 311, 38 P. 995, 45 Am. Rep. 4. Gallin v. Railway Co., L. R. 787; Rogers v. Steamboat Co., 86 10 Q. B. 212. See, also, Alexander Me. 261, 29 A. 1069, 25 L. R. A. v. Railway Co., 33 Upp. Can. Q. B. 491; Quimby v. Railroad Co., 150 474. Mass. 366, 23 N. E. 205. 5. Kenney v. Railroad Co., 125 2. Fonseca v. Steamboat Co., 153 N. Y. 422, 26 N. E. 626; Wells v. Mass. 553, 27 N. E. 665, 12 L. R. Railroad Co., 24 N. Y. 181; Poncher A. 340 and note, 25 Am. St. Rep. v. RIC POLICY. Ch. 12 straint upon commerce as described in tlie trust act;® therefore pooling arrangements bj railroads are forbidden.'^ So a con- tract or combination which imposes any restraint, reasonable or unreasonable, upon interstate commerce is unlawful ; and it is immaterial whether or not the restraint is a fair and reasonable one or whether it has actually resulted in increasing the price of the commodity dealt in.^ Where the main object of the parties in making the contract is merely to restrain competition, and enhance and maintain prices, the contract is void.^ The object of the Sherman Anti-Trust Act ^*^ was to protect trade and commerce against unlawful restraint and monopolies. To accomplish that object Congress declared certain contracts illegal. That act, in effect, prohibits the doing of certain things, and its prohibitory clauses have been sustained in several cases as valid under the power of Congress to regulate interstate com- merce. ^^ Most great combinations from which the people have any- thing to fear are engaged in some way in interstate commerce. The Constitution of the United States gives Congress jurisdic- tion to regulate commerce among the States. But Congress cannot say that a particular article is subject to interstate commerGe when it is not, so as to exclude judicial inquiry. While Congress has power to regulate interstate commerce, it has no power to select the subjects and instrumentalities which it intends shall thereafter enter into commerce between the States. In all the cases up to the present time, the United States Suj)reme Court has held that the scope of the term com- 6. United States v. Freight Asso., 10. Act ot July 2, 1890, ch. 647, 166 U. S. 290, 17 S. Ct. 540. 26 Stat. 209. 7. United States V. Freight Asso., 11. United States v. Freight 166 U. S. 290, 17 S. Ct. 540. Asso., 1C6 U. S. 290, 17 S. Ct. 540; 8. United States v. Coal Dealers' United States v. Traffic Asso., 171 Asso., 85 Fed. Rep. 252; United U. S. 505, 19 S. Ct. 25; Addyston States V. Freight Asso., 166 U. S. Pipe and Steel Co. v. United States, 290, 17 S. Ct. 540. 175 U. S. 211, 20 S. Ct. 96; United 9. United States v. Pipe and States v. Northern Securities Co., Steel Co., 85 Fed. Rep. 271, 46 L. R. 120 Fed. Rep. 721, 191 U. S. 555, A. 122, 175 U. S. 211, 20 S. Ct. 96. 193 U. S. 197, 24 S. Ct. 119. 370 Ch. 12 INDUSTRIAL COMBINATIONS. §§ 326,327 merce, as used in the constitution, is to be determined by the court and not by Congress.^ § 327. Corporate trusts and labor. — An antagonism exists between industrial combinations and labor. In the beginning trusts were not cordial to labor. In the Sugar Trust agreement one of the principal provisions was to furnish protection against combinations of labor, and the attitude of labor against trusts was apparently hostile. The method of guarding against the advance of labor combinations, as set forth in the Sugar Trust agreement, was to be able to close a refinery in which a strike occurred without embarrassing the production, as all of the other refineries in the trust would continue. But this method was soon met by the extension of the labor organization to all the refineries, and therefore labor confederacies were completed to meet the combination of capital. So, one organization con- fronted the other. ^ 12. Champion v. Ames, 188 U. S. 321, 23 S. Ct. 321. As to the ap- plication of the Act of Congress of 1893, in enforcing the anti-trust and interstate commerce laws, see, Inter- state Commerce Commission v. Baird, 194 U. S. 25. 1. See "Labor Competition and the Law." — 19 Law Quarterly Re- view, 37. 371 § 328 CONTRACTS AGAINST PUBLIC POLICY. Oh. 12 ARTICLE III. As TO Patent Rights. Section 328. Rights of Patentee. 329. Owner of Different Patent Rights in Single Article. § 328. Rights of patentee. — A patentee may not only neglect and refuse to make the patented article, but he may refuse to permit anyone else to do so, on any terms; he may also sell to another the right itself, or agree with him that he will permit no one else to use it; and to make the agreement binding such other person need not agree to make the patented article or sell it, and such a contract is not void as in restraint of trade. ^ Considerations which might obtain, if the agreement were in regard to other articles, cannot be of any weight in the de- cision of a question arising upon an agreement as to patented articles. It is the purpose of a patent to give the inventor a monopoly, which is authorized by the government ; and, hence, an agreement by a patentee to allow an association and its mem- bers the exclusive use and sale of inventions patented by him, is valid.^ The very essence of a patent is monopoly, and the law recog- nizes this in every way. The argument that the public is in- jured by a course of dealing in patents is founded on the as^ sumption that it has rights in such property, a notion utterly repugnant to the true nature of the monopoly. No case can be found which recognizes such a public right, and the attempt to apply to this the rules which forbid a restraint of trade is with- out precedent.^ And it is not against public policy for a party to contract not to contest the validity of a patent right ■* 1. Good. V. Deland, 121 N. Y. 1, 628; Morse Machine Co. v. Morse, 24 N. E. 15. 103 Mass. 73, 4 Am. Rep. 513. 2. Good V. Deland, 121 N. Y. 1, 3. Morse Machine Co. v. Morse, 24 N. E. 15. See, also, Kinsman v. 103 Mass. 73, 4 Am. Rep. 513. Parkhurst, 18 How. (U. S.) 289; 4. Dunham v. Bent, 72 Fed. Rep. Billings V. Ames, 32 Mo. 265; Cos- 60. tar V. Brush, 25 Wend. (N. Y.) 3Y2 Ch. 12 INDUSTRIAL COMBINATIO^f 8. § 329 § 329. Owners of different patent rights in a single article. — Several owners of different patent rights in a single article, may, for the purpose of putting their several patents where they can be used together and to the best advantage, fonn a corpora- tion, to which each owner gives the exclusive license to sell the articles made under the patents, taking as an equivalent for this license a part of the capital stock. Hence, an agreement among these makers of a commodity, that, for three years, they ^vill sell at uniform prices fixed at the outset, and to be changed only by consent of a majority of them, is not against public policy. Such an agreement does not provide to check competition from outside, as the parties have a monopoly by their patents, but only to restrict competition in price among themselves.^ And so, on the same principle an agreement by a patentee for the purpose of selling the patent to better advantage, and as a part of the transaction of sale, and for one and the same con- sideration received by him for the patent, is valid by which the patentee agrees to use his best efforts to invent improvements in the process and to transfer them to the vendee, to do no act which may injure the vendee or the business, and at no time to aid, assist or encourage in any manner, any competition against the same.^ Such a contract is not in restraint of trade, nor con- trary to public policy; the patentee had a right to contract to render the vendee his exclusive services in this respect. 1. Plimpton V. Goodell, 143 Mass. also, Gloucester, etc., Co. v. Russia 365, 9 N. E. 791; Compare Merz Cement Co., 154 Mass. 92, 27 N. E. Capsule Co. v. Capsule Co., 67 Fed. 1005, 12 L. R. A. 563, 26 Am. St. Rep. 414. Rep. 214; Printing, etc.. Register- 2. Morse Machine Co. v. Morse, ing Co. v. Sampson, 19 Eq. 462. 103 Mass. 73, 4 Am. Rep. 513. See, 373 § 330 CONTRACTS AGAINST PUBLIC POLICY. Ch. 12 ARTICLE IV. Parties in Pari Delicto. Section 330. Enforcement of Illegal Contracts. 331. Test of Illegality of Contracts. 332. Legality at Time of Eniorcement. § 330. Enforcement of illegal contracts. — Where an illegal contract is fully executed, the law will not interfere at the in- stance of either party to undo that which it was originally un- lawful to do. But there is distinction between an executory and executed void contract to the effect that while suits to enforce executory contracts may always be defended on the ground of their invalidity ; but in respect to executed void contracts no re- lief can be had by either party.^ Courts will not lend their aid to enforce performance of a contract which is contrary to public policy or the law of the land, but will leave the parties in the place their own illegal action has placed them.^ Wlienever the contract conflicts with the morals of the times and contravenes an established interest of society, it is void, and no right of action can spring out of an illegal contract.'^ 1. Morris v. Hale, 41 Ala. 510; Dec. 258; Compare Central Trust Craddock v. Mortgage Co., 88 Ala. Co. v. Railroad Co., 23 Fed. Rep. 281, 7 So. 148; Long v. Railroad 306; Wright v. Gardner, 98 Ky. Co., 91 Ala. 519, 8 So. 706, 24 Am. 454, 33 S. W. 622, 35 S. W. 1116; St. Rep. 931; Thomas v. Railroad Winchester Elec. Light Co. v. Veal, Co., 101 U. S. 71; Parish v. Web- 145 Ind. 506, 41 N. E. 334, 44 N. E. ster, 22 N. Y. 494; Terry v. Eagle 353. Lock Co., 47 Conn. 141, 29 Am. 3. Goodrich v. Tenney, 144 HI. Rep. 674. 422, 33 K. E. 44, 19 L. R. A. 371 2. Central Transp. Co. v. Palace and note, 36 Am. St. Rep. 459; Car Co., 139 U. S. 24, 11 S. Ct. 478; Fearnley v. De Mandenville, 5 Col. Texas, etc., R. R. Co. v. Railroad App. 441, 39 P. 73; Collins v. Blan- Co., 41 La. Ami. 970, 6 So. 888, 17 tern, 2 Wilson, 34; Williams v. Am. St. Rep. 445 ; Hope v. Associa- Bagley, 1 H. L. 200 ; Poole v. Weg- tion, 58 N. J. L. 627, 34 A. 1070, 55 gins, 3 Ring., N. C. 230; Insurance Am. St. Rep. 614; Hooker v. Vande- Co. v. Hull, 51 Ohio St. 270, 37 N. water, 4 Denio (N. Y.), 349, 47 Am. E. 1116, 25 L. R. A. 37, 46 Am. St. 374 Cll. 12 INDUSTRIAL COMBINATIONS. §§ 330, 331 The principle of public policy is this: Ex dolo malo non oritur actio, a right of action cannot arise out of fraud. Xo court will lend its aid to a man who bases his course of action upon an immoral or an illegal act^ If from the plaintiff's oa\ti stating or otherwise, the cause of action appears to arise ex turpi causa, or the violation of the law of the country, then the court says he has no right to be assisted. It is upon this ground, not for the sake of the defendant, but because the court will not lend its aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would have the advantage, for Avhere botli are equally at fault, potior est conditio defendentis, better is the condition of the defendant than that of the plain- tiff. There are exceptions to the general rule where the parties are not in pari delicto* and the less guilty is permitted to main- tain his suit where the public interests will be thereby ad- vanced.^ And the parties may adjust their claims, divide the property, and the court will then enforce partition;® or they may place each other in statu quo;'' and if one party is ignorant of the illegality but the otlicr is not, the former may enforce it against the latter.* § 331. Test of illegality of contract. — The court will not assist either party to an illegal or void contract to enforce it against the other, or to recelp. 18 Neb. Bell V. Morrison. T Pel. (U. S.) 652. 26 N. W. 472. See. also, 351; Thompson v. Bowman, 6 Wall. Forest M. E. Church v. Donnell. 95 (U. S.) 316; Thompson v. Richards. Iowa. 300. 64 N. W. 412; Superior 14 Mich. 172: Wallis v. Randall, 81 Con. Land Co. v. Bickford, 93 Wis. N. Y. 164; Shoemaker v. Benedict. 220, 67 N. W. 45; Davis v. Cream- 11 N. Y. 176, 62 Am. Dec. 95 and err Co., 48 Neb. 471. 67 N. W. 436; note; Current v. Fulton. 10 Ind. Howell v. Church, 61 in. App. 121. App. 617. 38 N. E. 419: Gibbons v. 439 J§ 386, 387 OPEEATION OF CONTKACTS, Ch. 14 the creditor may sue all in one action or may sue each one sev- erally, but he cannot sue two and omit the others ; for in such case they are sued neither jointly or severally as they promise.^ If the plaintiff does not see fit to proceed against them sev- erally, it is the undoubted right of the defendants to have all joined with them in the suit.^ A bond of an officer is joint and several, and an action is properly instituted against all the obligors thereto for a breach of its conditions.^ § 387. Release of joint and several promisors by law. — As already stated, if an obligee releases one of the obligors who are bound jointly and severally, the others are thereby dis- charged.^ But at common law, a release of one joint debtor by operation of law, as by a discharge in bankruptcy^ or insol- vency, or a discharge by the exercise of a right as for infancy,' or a discharge by operation of the statute of limitations,* does not release the co-promisors, whose liability still remains. In such case the other debtors may be joined without including the one discharged by law. 1. Howard v. Roberts, 5 Me. 441; Bangor Bank v. Treat, 6 Me. 207, 19 Am. Dec. 210; State v. Chandler, 79 Me. 172, 8 A. 553; Streatfield V. Halliday, 3 Term R. 779; Clare- mont Bank v. Wood, 12 Vt. 252; Schilling v. Black, 49 Kans. 552, 31 P. 143; Carter v. Carter, 2 Day (Conn.), 442, 2 Am. Dec. 113. 2. State V. Chandler, 79 Me. 172, 8 A. 553. 3. Jenks v. School Dist., 18 Kans. 356; Saurdsfeger v. State, 21 Kans. 475; Schilling v. Black, 49 Kans. 552, 31 P. 143; Klapp v. Kleckner, 3 Watts & S. (Pa.) 519; Besore v. Potter, 2 Serg. & R. (Pa.) 154; Wampler v. Shissler, 1 Watts & S. (Pa.) 365; Bradburne v. Bot- field, 14 Mees. & Wei. 559. 1. Co. Litt. 232a; Brooks v. Stuart, 9 Adol. & E. 854; Maslin V. Hiett, 37 W. Va. 15, 16 S. E. 437. 2. Coburn v. Ware, 25 Me. 330; Turner v. Esselman, 15 Ala. 690; Garnett v. Roper, 10 Ala. 842. 3. Hartness v. Thompson, 5 Johns. (N. Y.) 160; Tuttle v. Cooper, 10 Pick. (Mass.) 281; Robertson v. Smith, 18 Johns. (N. Y.) 459, 9 Am. Dee. 227. 4. Spaulding v. Ludlow, 36 Vt. 150; Denny v. Smith, 18 N. Y. 567; Cutler V. Wright, 22 N. Y. 472; Bruce v. Flagg, 1 Dutch (N. J.), 219; Fannin v. Anderson, 7 Q. B. 811. 440 Ch. 14 CONTRACTUAL RELATIONS. § 388 § 388. Contribution. — At one time it was a question whether parties jointly liable conld enforce contribution unless founded upon some positive contract between tliem incurring the lia- bility. But now it may be enforced at law, in most States, as well as in equity, although no express contract exists. And it matters not, in case of a debt, whether the sureties are jointly and severally bound, or only severally ; whether their obligation arises under the same instrument, or under divers obligations or instruments, if all the instruments are for the same identi- cal debt.^ The action for contribution arises upon a principle of equity, though it is now established to be the foundation of an action at law.^ This rule of equity applies between sureties^ and other joint promisors.'* The ground upon which a surety is entitled to contribution is that he has paid the debt for which he and his co-sureties are bound. He cannot maintain a suit on the origi- nal contract f he need not wait until he is compelled to pay it.' The doctrine of contribution is not founded on contract, but is the result of general equity, on the ground of equality of bur- den and benefit, and is equally so among principals as among sureties.' An express agreement will control though in parol,' and sometimes other equities may change the rule.' In case of an assignment of property from the principal to a 1. Story Eq. Jur. 495. 6. Glasscock v. Hamilton, 62 2. Davies V. Humphreys, 6 Mees. Tex. 143; Jackson v. Murray. 77 6 Wei. 153; Bushnell v. Bushnell, Tex. 644, 14 S. W. 235; Kemp v. 77 Wis. 435, 46 N. W. 442, 9 L. Fender, 12 Mees. & W. 421 ; Chaffee R. A. 411 and note; Fowler V. Don- v. Jones. 19 Pick. (Mass.) 260; ovan,79 HI. 310; Kincaid v. Hoeker. Taylor v. Savage, 12 Mass. 98. 7 J. J. Mar. (Ky.) 333. 7. Fletcher v. Grower, 11 N. H. 3. Wells V. Miller, 66 N. Y. 255; 3G9, 35 Am. Dec. 497. Bushnell v. Bushnell, 77 Wis. 435, 8. Robertson v. Deatherage, 82 46 X. W. 442, 9 L. R. A. 411 and 111. 511. note : Robertson v. Deatherage, 82 9. Wells v. ]\riller, 66 N. Y. 255 ; 111. 511. Scofield V. Gaskill, 60 Ga. 277; 4. Chipnian v. Morrill, 20 Cal. Healoy v. Scofield, 60 Ga. 450; 130; Snyder v. Kirtley, 35 Mo. Craven v. Freeman, 82 X. Car. 423. 361. 5. Halliman v. Rocrers. 6 Tex. 91. 441 §§ 388-390 OPEEATION OF CONTKACTS. CL 14 surety, for the purpose of indemnifying him in part, such as- signment will inure to the benefit of all the sureties, and a surety who has received money from such a fund can only re- cover from his co-sureties their just proportions, or aliquot parts, of the sum& he may have paid beyond the sum so re- ceived from the property assigned.^" A surety who has paid a judgment against himself and co- surety cannot, by taking an assignment thereof, enforce the full amount of the judgment against his co-surety. ^^ And a surety who voluntarily and unconditionally pays a judgment against himself and co-surety without taking an assignment thereof, cannot compel contribution from his co-surety on the original contract ;^^ to protect himself he must take an assign- ment of the judgment." § 389. In what property payment may be made. — When one co-surety pays the debt in any mode, either in property, negotiable paper or securities, if such payment is received in full satisfaction of the original debt, it is equivalent to, and will be treated as, a payment in cash, and the payer has his right to contribution.^ But the refusal of a surety to accept prop- erty from his principal as indemnity will not defeat his right to contribution where he has pai-d the original debt.^ § 390. Right to receive contribution. — It is well settled that before a surety is entitled to call upon a co-surety for contribu- 10. Batchelder v. Fisk, 17 Mass. 494; Pinkston v. Taliaferro, 9 Ala. 464. .547; Brisendiiie v. Martin, 1 Ired. 11. MeGinnis v. Loring, 126 L. (N. Car.) 286 ; Ralston v. Wood, Mo. 404, 28 S. W. 750. 15 111. 159; Witherby v. Mann, 11 12. McGinnis v. Loring, 126 Mo. Johns. (N. Y.) 518; Stone v. Por- 404, 28 S. W. 750. ter, 4 Dana (Ky.), 207; Robin- 13. Farwell v. Becker, 129 111. son v. Maxcey, 6 Dana (Ky.), 101; 274, 21 N. E. 792. See, also, Peebles Cornwall v. Gould, 4 Pick. (Mass.) V. Gay, 115 N. Car. S'8, 20 S. E. 173, 444; Stubbins v. Mitchell, 82 Ky. 44 Am. St. Rep. 429. See Pingrey 536; Smith v. Mason, 44 Neb. 610, on Surety, and Guaranty, sees. 196- 63 N. W. 41. 212. 2. Smith v. Mason, 4^ Neb. 610, 1. Keller v. Boatman, 49 Ind. 63 N. W. 41. 104; Anthony v. Perciful, 8 Ark. 442 Ch. 14 CONTRACTUAL RELATIONS. §§ 390, 391 tion he must have actually paid the debt' lint this doc- trine does not require that the indebtedness shall be paid in money by the surety. If there has been delivered to the obligee, property which is received in full satisfaction of the demand, it is equivalent to payment in cash, and will authorize the surety to call upon his co-sureties for reimbursement on the basis of the value of the property so delivered, not exceeding the debt thereby discharged," with interest only at the legal rate from date of payment.^ In some States contribution between sureties can be claimed in equity only and not at law,* except where changed by statute. § 391. Insolvency of co-sureties. — Some cases hold that in an action for contribution the question of solvency or insol- vency of the co-sureties is not material, and the one paying the debt is entitled to recover contribution without regard to the insolvency of any of them. But the equitable rule is that con- tribution must be based upon the number of solvent co-sureties. That is, the insolvent ones are to be excluded, and the burden is to be distributed equally among those who are solvent.^ This is the rule in equity in some States,^ but not at law, as at law the aliquot portion is to be ascertained on the basis of the number 1. Bisph. Eq. 33D. Young v. Clark, 2 Ala. 264; Young 2. Brandt on Suretyship, 285; v. Lyons, 8 Gill (Md.), 162; Gross Ralston v. Wood, 15 111. 159, 58 v. Davis, 87 Tenn. 226, 10 Am. St. Am. Dec. 604; Atkinson v. Stewart, Rep. 635 and note, 11 S. W. 92; 2 B. Mon. (Ky.) 348; Stubbins v. Xewton v. Pence, 10 Ind. App. 672, Mitchell, 82 Ky. 536. 38 X. E. 484 ; Breckinridge v. Tay- 3. Bushnell v. Bushnell, 77 Wis. lor, 5 Dana (Ky.), 110; Boseley v. 435, 46 N. W. 442, 9 L. R. A. 411 Taylor, 5 Dana (Ky.), 157; Morri- and note; Smith v. Mason, 44 Neb. son v. Poyntz, 7 Dana (Ky.), 307, 610, 63 N. W. 41. 32 Am. Dec. 92; Henderson v. Mc- 4. Hawker v. Moore. 40 W. Va. Duffce, 5 N. H. 38, 20 Am. Dec. 557 49, 20 S. E. 848; McDonald v. Ma- and note; Broadsman v. Paige, 11 gruder, 3 Pet. (U. S.) 470; Longley N. H. 431; Burroughs v. Lott, 19 V. Griggs, 10 Pick. (Mass.) 121. Cal. 125; Smith v. Mason, 44 Neb. I. Acers v. Curtis, 68 Tex. 423, 610. 63 N. W. 41. 4 S. W. 551: Liddell v. Wiswell, 59 2. Moore v. Bruner. 31 111. App. Vt. 365, 8 A. 680; Michael v. Al- 402. bright, 126 Ind. 172, 25 N. E. 902; 443 §§ 391-393 OPERATIOIT OF CONTRACTS. Oh. 14 of sureties, without regard to their solvency.^ In some of the States contribution is given at law as well as in equity, ac- cording to the number of solvent sureties, and in some States this is law under the statute.* § 392. Must the principal debtor be insolvent. — According to the weight of authority at law the right of the surety to re- cover contribution from a co-surety in any manner depends upon the insolvency of the principal debtor,^ although the de- cisions upon this point are not harmonious. Therefore, in order to recover contribution it is necessary by the weight of authority, to aver and prove the insolvency of the principal debtor, and this is so in equity.^ § 393- Sureties discharged by act of promisee. — The prom- isee may give the principal debtor privileges which will dis- charge the sureties. Thus, where the principal and one of the sureties executed their note, which was accepted by the creditor, in payment of the former note, this has the effect to release and discharge the sureties who did not sign the last note, from their obligation to the creditor, as well as from contribu- tion to their co-surety who signed the new note.^ So if the creditor extends the time of the payment of the note, for a valuable consideration, it releases the sureties who do not agree to it f but if there was no consideration for the extension of the time, the agreement is void, and sureties are not discharged.' 3. Moore v. Bruner, 31 111. App. Mo. App. 143; Compare HaAvker v. 403. Moore, 40 W. Va. 49, 20 S. E. 848; 4. Pingrey on Surety, and Guar- Pingrey on Surety, and Guaranty, anty, sees. 196, 197. sec. 197. 1. Roberts v. Adams, 6 Port. 1. Bell v. Boyd, 76 Tex. 133, 13 (Ala.) 361, 31 Am. Dec. 694; S. W. 232. Brandt on Suretyship, 290; Judah 2. Gordon v. Bank, 144 U. S. 97, V. Mieure, 5 Blackf. (Ind.) 171; 12 S. Ct. 657; Chemical Co. v. Buckner v. Stewart, 34 Ala. 529; Pegram, 112 N. Car. 614, 17 S. E. Sloo V. Pool, 15 111. 47; Rankin v. 298; Rees v. Berrington, 2 Ves. Jr. Collins, 50 Ind. 158. 540. 2. Smith V. Mason, 44 Neb. 610, 3. Burr v. Boyer, 2 Neb. 265; 63 N. W. 41 ; Mosely v. Fulleton, 69 Dillon v. Russell, 5 Neb. 484; Smith 444 Cb. 14 CONTRACTUAL EELATIONS. §§ 393, 304 But the mere voluntary forbearance on tbe part of tbe creditor, enlarging tbe time of payment, witbout consideration, or tbe mere failure to institute an action against tbe principal debtor wben tbe debt becomes due, will not alone discbarge tbe surety.* But if tbe surety demands tbat tbe creditor brings suit to col- lect tbe note, tbe latter must do it witbin a reasonable time, for, after sucb demand, if the principal becomes bankrupt, and tbe creditor bas been negligent in bringing suit, tbe surety will be discbarffed. § 394, In case of tort. — Between wrongdoers tbere can be no contribution, tbe exception being Avbere tbe act is not clearly illegal in itself.^ But in determining wbetber one joint wrong- doer is entitled to contribution from anotber tbe test is, wbetber tbe former knew, at tbe time of tbe commission of tbe act for wbicb be bas been compelled to respond, tbat sucb act was wrong-ful.^ If all know tbat tbeir act is wrong, none can compel contribution from bis co-defendant.^ Tbis rule will not affect cases of indemnity where one man employs anotber to do acts not unlawful in themselves for tbe purpose of asserting a right* V. Mason, 44 Neb. 610, 63 N. W. 41. 4. Smith V. Mason, 44 Neb. 610, 63 N. W. 41; Dillon v. Russell, 5 Neb. 484; Sheldon v. Williams, 11 Neb. 272, 9 N. 86. See Pinffiey on Surety, and Guaranty, sees. 100- 137. 1. Farwell v. Becker, 129 111. 272, 21 N. E. 792, 16 Am. St. Rep. 267; Betts V. Gibbins, 2 Ad. & El. 57. 2. Torpy v. Johnson, 43 Neb. 882, 62 N. W. 2.53; Johnson v. Torpy, 35 Neb. 604, 53 N. W. 575. 37 Am. St. Rep. 447 ; Jacobs v. Pollard, 10 Cush. (Mass.) 287, 57 Am. Dec. 105; Armstrong Co. v. Clarion Co., 66 Pa. St. 218, 5 Am. Rep. 368; Lowell V. Railroad Co., 23 Pick. (Mass.) 24, 34 Am. Dec. 33 and note; Acheson v. ifiller. 2 Ohio St. 203,59Am. Dec. 663; Barley v. Bus- sing, 28 Conn. 455; Adamson v. Jarvis, 4 Bing. 66. 3. Merryweather v. Nixan. 8 Term R. 186. See, also, Nichols v. Nowling, 82 Ind. 488; Miller v. Fenton, 11 Paige (N. Y.), 18; Vose V. Grant, 15 !Mass. 505. 4. Merryweather v. Nixan. 8 Term R. 186. See. also. Betts v. Gibbins, 2 Ad. & El. 57 ; Farwell v. Becker, 129 111. 272, 21 N. E. 792. 16 Am. St. Rep. 267. 445 CHAPTER XV. Interstate Contracts. ARTICLE I. Law of the Place of Contkact. Section 395. Validity of Contract — What Law Governs. 396. Intention and Agreement. 397. Capacity of Parties. 398. Sale of Personalty. 399. Bills and Notes. 400. Marriage Contracts. 401. Married Women. 402. Chattel Mortgage Lien Follows the Property. 403. Conveyances of Real Estate. 404. Insurance Contracts. 405. Assignment of Policy of Insurance. 406. Assignment of Property. 407. As to the Situs of Personal Property. § 395- Validity of contracts — What law governs. — Inter- state laws, or private international law, interpret the con- tractual relations of persons in different States and nations, who have interstate or international dealings. Of course the law of one State has no force outside of the State, but in most cases, through comity of States, it is applied in other juris- dictions. The general rule is that if a contract is valid where made it is valid everywhere and will be e^iforced in other jurisdictions, that is, by the lex fori. However, there are exceptions to this general rule which may be classified as follows: (1) When the enforcement of the interstate contract would militate against the policy of the forum; (2) where the enforcement of the 446 Cll. 15 INTERSTATE OONTKACTS. § .'JO 5 interstate contract would work injury or injustice to the people of the forum; (3) where the enforcement would contravene the principles of morality and decency of the community of the forum; (4) where a foreign or interstate law is penal in its nature; (5) where the contract relates to the transfer of title to real estate in the forum. In short, the interstate contract will not he enforced if it is clearly contrary to good morals, or repugnant to the established policy or positive statute of the jurisdiction in which it is sought to be enforced/ Thus, a contract of subscription to capital stock of a corporation made in Maryland, but to be performed in the State where the corporation is chartered, is to be governed by the laws of the State w-here the corporation is created.^ So, also deeds and notes relating to real property located in Maine, although dated in another State but delivered in Maine, will be governed by the law of the latter.^ And a guaranty executed and to be performed in Louisiana is a Louisiana contract and is governed by the laws of that State, though designed to obtain credit in another State/ Although a stipulation in a contract of carriage, relieving the carrier from liability for injuries resulting from the negligence of his servants, is against public policy of a State, if valid in the country where made, it will be enforced in the former, if it is not immoral or illegal, on principle of comity/ 1. Minor's Conf. L. p. 9; Til- Rep. 23 and note; Sullivan v. Sul- aen v. Blair. 21 Wall. (U. S.) 241; livan, 70 Mich. 583, 38 N. W. 472; Wayne County Savings Bank v. Fessenden v. Taft. 65 N. H. 39, 17 Low, 81 N. Y. 566, 37 Am. Rep. 533; A. 713; Atlantic Phosphate Co. v. Havvley v. Bibb, 69 Ala. 52: Stix v. Ely, 82 Ga. 438, 9 S. E. 170. Matthews, 75 Mo. 96; Swann v. 2. Fear v. Bartlett, 81 Md. 435, Swann, 21 Fed. Rep. 299; Burns v. 32 A. 322, 33 L. R. A. 721 and Railroad Co., 113 Ind. 169, 15 N. E. note. 230 ; Flagg v. Baldwin, 38 N. J. Eq. 3. Holt v. Knowlton. 86 Me. 456, 219; Hyatt v. Bank, 8 Bush. (Ky.) 29 A. 1113. 193; Milliken v. Pratt, 123 Mass. 4. Lachman v. Block, 47 La. Ann. 374. 28 Am. Rep. 241; Hill v. Spear, 505. 50N. H. 253, 9 Am. Rep. 205; Sond- 5. Milliken v. Pratt, 125 Mass. heim v. Gilbert. 117 Ind. 71, 18 N. 374, 28 Am. Rep. 241; Scudder v. E. 687. 5 L. R. A. 432, 10 Am. St. Bank, 91 U. S. 406; Fonseca v. 44Y §§ 395, 396 OPERATION OF CONTEACTS. Cll. 15 And where an assignment of a judgment conveys the legal title, the assignee can sue on it in her own name in another jurisdiction as the lex loci governs.^ So succession to a tangible thing may be taxed wherever the property is found.^ So the transfer of money of a non-resident, deposited in a certain state, depends upon the law of that State. The universal succession can be taxed in one State, and the singular succession in another. Thus, B domiciled in Illinois, deposited in a !N"ew York bank a certain amount of money to be left there tempo- rarily, under conditions, but he died before withdrawing the deposit. A succession tax was imposed by the law of Illinois upon all his property including the deposit in ]^ew York. The State of ]^ew York imposed a succession tax upon the deposit in that State. Both succession taxes were legally imposed.* The fact that two States, dealing each within its own law of succession and transfer, both of which a legatee, or legal repre- sentative of the estate has to invoke for his rights, have taxed the right which they respectively confer, gives no cause for complaint on constitutional grounds.^ One and the same State may tax on the one hand according to the fact of power, and on the other, at the same time, according to the fiction that, in suc- cession after death, personalty follows the person and domicil governs the whole. § 396. Intention and agreement. — ^Where a contract is en- tered into between parties residing in different countries, where different systems of laws prevail, it is a question in each case with reference to what law the parties contracted, and according to what law it was their intention that their right, either under Steamship Co., 153 Mass. 553, 27 7. Eidmon v. Martinez, 184 U. S. N. E. 665, 12 L. R. A. 340 and note, 578, 22 S. Ct. 515. 25 Am. St. Rep. 6b0; Regan v. 8. Blackstone v. Miller, 188 U. Steamship Co., 160 Mass. 356, 35 S. 189, 23 S. Ct. 277. N. E. 1070, 39 Am. St. Rep. 484. 9. Coe v. Erral, 116 U. S. 517, 6 6. Martin v. Wilson. 120 Fed. S. Ct. 475 ; Knowlton v. Moore, 178 Rep. 202, 58 C. C. A. 181. U. S. 53, 20 S. Ct. 747. 448 Ch. 15 INTERSTATE CONTBACTS. § 396 the whole or in part of the contract, should be determined.^ So a life insurance policy issued in Pennsylvania which con- tains a stipulation that it is a contract and to be executed in the State of New York, and shall be construed only according to the laws of that State, will be construed as though actually executed and delivered in New York.^ This is in accordance with the principle that where parties make a contract of loan in one State to be performed in another, they may in good faith and without intent to evade the law, agree that the law of either State shall control.^ However, in many instances the intention cannot control, but the law and public policy must prevail which the intent of the parties cannot overthrow. Thus, a married woman who makes a contract prohibited by law, will not be held liable on the con- tract merely because she intended to make a valid contract. So a contract void because it is not in writing cannot be made valid and enforced because the maker intended it to be valid. And so if one agrees to do sometliing prohibited by law, his intent to make a valid contract does not control. So if one makes a contract whose consideration is illegal or immoral, his intent to bind himself does not make it a valid contract.* So, in general, whether the question concerns an element of the contract de- pendent upon the parties' intention or that independent of the intention, the law governing is that of the situs of the particular element, circumstance, or act in controversy. If the contract is void in some particular element, such as tlie mode of entering into it, or the act done as the consideration of the promise, by the law governing that element, the courts of every State will np- 1. Hamlyn v. Talisker Distillery Parsons, 55 Minn. 520, 57 X. W. (1894), A. C. 202. 311; Jones v. Trust Co.. 7 S. Dak. 2. Griesemer v. Ins. Co., 10 122, 63 X. W. 553. See, also, Whit- Wash. 202, 38 P. 1031. aker v. Security Co.. 97 Ga. 329, 3. Robinson v. Bland, 2 Burr. 22 S. E. 978; United States Sav. &. 1177; Miller V. Tiffany, 1 Wall. (U. L. Asso. v. Seott, 98 Ky. 695. 34 S.) 298; Martin v. Johnson, 84 Ga. S. W. Rep. 235; Bascom v. Zediker, 481, 10 S. E. 1092, 8 L. R. A. 170 48 Neb. 380. 67 N. W. 148. and note; Mott v. Rowland, 85 4. Minor's Confl. L. p. 364. Mich. 561, 48 N. W. 638; Smith v. 4-19 §§ 396, 397 oppiRATioN of contracts. Cli. 15 hold the hiw and policy of the State where the particular ele- ment in question arises or has its situs. And the fact that the parties had in view a different law governing the element has no effect whatever.^ The dignity of a local court is not in- volved when a contract is made between citizens of foreign States Mdio make any reasonable arrangement for the settlement of their disputes, where there is only the narrowing of the forum-area, and not an attempt to deprive a party of the right of appeal to the courts. Such an arrangement is analogous to the limitation by contract of the time within which suits may be brought. Thus, in Mittenthal v. Mascagni,^ a contract came before the court, partly to be performed in Italy, but primarily in the United States. It also provided that it should be gov- erned by the laws of Italy and that any suit brought under it should be instituted in the courts of Florence, Italy, except that Mascagni might sue for his compensation in the courts of !Mew York. This contract was valid and meant to give exclusive jur- isdiction to the Italian courts. The court held that parties may agree to arbitration in preliminary and incidental matters of dispute, so long as the right of appeal to the courts for the deter- mination of any substantial question of liability is retained. § 397- Capacity of parties. — Continental jurists have main- tained that personal laws of the domicil, affecting the status and capacity of all inhabitants of a particular class, bind them wherever they may go, upon the principle that each State has the rightful power of regulating the status and condition of its subjects, and, being best acquainted with the circumstances of climate, race, character, manners, and customs, can best judge at what age young persons my begin to act for themselves, and whether and how far married women may act independently of their husbands ; that laws limiting the capacity of infants or of married women are intended for their protection, and cannot therefore be dispensed with by their agreement; that all civil- 5. See Union Nat. Bank v. Chap- 6. 183 Mass. 19, C6 N. E. 425, 60 man, 169 N. Y. 538, 62 N. E. 672, L. R. A. 812, 97 Am. St. Rep. 404. 57 L. R. A. 513 and note. 450 Cll. 15 INTERSTATE CONTILVCTS. § 397 ized States rocoo^iizo the incapacity of infants and married women; and that a person, dealing with cither, ordinarily has notice, by the apparent age or sex, that the person is likely to be of a class whom the laws protect, and is thns pnt npon inquiry how far, by the law of the domicil of the person, the protection extends. Hence, these jurists generally hold that incapacity of the domicil attaches to and follows the person wherever he may go. However, this is not the doctrine of the common law ; the general current of tlio English and American authorities holds that a contract, which by the law of the place is recognized as lawfully made by a capable person, is valid everywhere, although the person Avould not under the law of the domicil be deemed capable of making it.^ This is the accepted doctrine in this country in so far as it relates to the enforcement of contracts in courts other than those of the domicil. Quite a different question is presented when the action is brought in the forum of the domicil. In such a case a very important qualification of private international law is to be considered, and this is that no State or nation will enforce a foreign law which is contrary to its fixed and settled policy.* If a party makes a contract in the State of his domicil, though the contract is to be performed elsewhere, the law of his domicil governs as to this capacity to make the contract.^ But the capacity of the party, when not at his domicil, to contract is governed by his actual situs at the time he makes it, the lex loci celebrationis. But when the domicil of the party is the forum, in order to protect th(> citizens, the lex fori will govern.* 1. Story on Confl. of L. 103, 104; 211, 45 N. E. 737, 36 L. R. A. 771. Compare Uliarton on Coiill. of L. 57 Am. St. Rep. 452; Freeman's 112, 118. Appeal, 68 Conn. 533. 32 A. 420, 37 2. Story on Confl. of L. 37; Bank L. R. A. 452, 57 Am. St. Rep. 112; V. Earle, 13 Pet. (U. S.) 519; Arm- Hill v. Bank, 45 N. H. 300; Arm- strong V. Best, 112 N. Car. 59, 17 strong v. Best. 112 X. Car. 59, 17 S. E. 14, 25 L. R. A. 188. 34 Am. S. E. 14, 25 L. R. A. 188. 34 Am. St. Rep. 473; Taylor v. Sharp, 108 St. Rep. 473. N. Car. 377, 13 S. E. 138. 4. Robinson v. Queen. 87 Tcnn. 3. Poison V. Stewart, 167 Mass. 445, 11 S. W. 38, 3 L. R. A. 214, 10 451 §§ 397, 398 OPERATION OF CONTRACTS. Ch. 15 If by the lex celebrationis the parties are incapable of making a contract, no other State will recognize such a contract. If the contract is void at the place of its execution, it is void every- where.^ So if the parties enter into a contract in a particular State, the law of that State alone decides whether the parties had ability to contract. § 398. Sale of personalty. — If no place is designated by the contract, the place of sale is the point at which goods are ordered or purchased, set apart and delivered to the vendee, or to a com- mon carrier, who, for the purpose of delivery, represents the vendee.^ Personal property has a legal situs which is the domicil of the owner, and an actual situs, the place where it is located. Any transfer of it, if valid where made, will pass title though its actual situs is in another State.^ Where a place of performance is fixed by the parties, the pre- sumption is that the parties contract with reference to the law of such place, the lex loci solutionis.^ Accordingly, a written contract for sale of lumber, to be sawed, inspected, paid for, delivered and received in Mississippi is governed by the laws of that State, both as to obligations and execution, though made and signed in Tennessee.^ It is not the lex loci contractus that governs in such cases, but the lex rei sitae; that is, the law of Am. St. Rep. 690; Milliken v. Pratt, Partee v. Silliman, 44 Miss. 272; 125 Mass. 374, 28 Am. Rep. 241; Cantee v. Bennett, 39 Tex. 303; First Nat. Bank v. Shaw, 109 Tenn. Mayo v. Assurance Soc, 71 Miss. 237, 70 S. W. 807, 59 L. R. A. 498. 590, 15 So. 791. 5. Campbell v. Crampton, 2 Fed. 3. Dalton v. Murphy, 30 Miss. Rep. 417. 59; Hart v. Machine Co., 72 Miss. 1. Perlman v. Satorius, 162 Pa. 809, 17 So. 769; Milwaukee, etc. R. St. 320, 29 A. 852, 42 Am. St. Rep. R. Co. v. Smith, 74 III. 197 ; Cook 834; Schumacher v. Eley, 24 Pa. v. Moffat, 5 How. (U. S.) 295; St. 521; Sehwertz v. Dwyer, 53 Pa. Hyatt v. Bank, 8 Bush (Ky.), 193; St. 335; Garbracht v. Common- Osgood v. Bauder, 8'2 Iowa, 171, 47 wealth, 96 Pa. St. 449, 42 Am. Rep. N. W. 1001. 550. 4. Hart v. Madhine Co., 72 Miss. 2. Ames Iron Works v. Warren, 809, 17 So. 769. 76 Ind. 512, 40 Am. Rep. 258; 452 C'h. 15 INTERSTATE CONTRACTS. § 398 the place where tJie property is located at the time of the sale. Any other nilo would lead to endless confusion, and all sales of personal property made outside of a State would be subject to review as soon as the property was brought within the Stata' A sale, if valid where made, is valid as between the parties in every jurisdiction where it is called into question ; if invalid where made it is invalid in every other State.® Hence, if the sale of certain articles is invalid in one State but valid in another jurisdiction where the sale is made, it is valid in the former State,' though the vendor, if he knew of the prohibition, will not be allowed to enforce the sale in the former State.^ And the vendor should not be allowed to collect the price in any State, tlie purpose being to violate law of another State.' The place of the sale is where the final act is completed. The place where the order is given, or from where it is sent to the vendor, furnishes no safe guide in fixing the locus contractus}'^ If an agent has full authority to make a sale, the situs of the sale is where the agent actually entered into the contract. If he has no authority to pass the title, but takes orders to send to his principal who passes upon tliem, then the situs of the sale is where the principal acts." 5. Kurner v. O'Xeil. 39 W. Va. 446, 430 and note. Bvit this rule is 515, 20 S. E. 589. See, also. Gray not adopted by all the courts. See V. Iron Work Co., 66 Fed. Rep. 600; Hill v. Spear, 50 N. H. 253, 9 Am. Barrett V. Kelley, 66 Vt. 515, 27 A. Rep. 205: Mclntyre v. Parks, 3 496, 44 Am. St. Rep. 862; McLane Met. (Mass.) 207. V. Creditors, 47 La. Ann. 134, 16 9. Weil v. Golden. 141 Mass. So. 764. 364. 6 X. E. 229. 6. Fowler's Appeal. 125 Pa. St. 10. State v. O'Xeil, 58 Vt. 140, 388, 17 A. 431, 11 Am. St. Rep. 2 A. 586, 56 Am. Rep. 557; Tegler 902; Wenestine v. Freyer, 93 Ala. v. Shipman, 33 Iowa, 194, 11 Am. 257, 9 So. 285, 12 L. H. A. 700 and Rep. 118; Newman v. Sheriff. 43 note. La. Ann. 712. 9 So. 439; Sullivan 7. Merchants' Bank v. Spalding, v. Sullivan, 70 Mich. 583. 38 X. W. 9 N. Y. 58. 472. 8. Webster v. Munger. 8 Gray 11. Erman v. Lehman. 47 La. (Mass.), 584; Graves v. Johnson, Ann. 1651. 18 So. 650; Claflin v. 156 Mass. 211, 30 X. E. 818, 15 L. Mayer, 41 I^a. Ann. 1048. 7 So. R. A. 834 and note, 32 Am. St. Rep. 139. 453 §§ 398, 399 OPERATION OF CONTEACTS. Ch. 15 The lex loci contractus governs in the interpretation of terms used and their legal meaning. So the law of the place of sale governs the question as to whether the vendor warranted the validity of bonds sold.^^ So in a deed of personalty, " heirs at law" must be interpreted according to the place of the sale." A gift causa mortis is a voluntary and contractual act, and hence the lex loci contractus governs it." The title in the donee is conditional and revocable, but it is not testamentary, and so the lex domicillii cannot control the gift, though this solution is not free from doubt. § 399. Bills and notes. — A promissory note is not complete until it has been delivered, and it takes effect only from the day of its delivery. The place of contract evidenced by a promissory note does not depend upon where the note is dated, but upon the place where delivered. It is the delivery of the note that consummates the contract.^ As between the drawer and the payee the place of performance is the place where the bill is drawn.^ Where a bill of exchange has been endorsed in a for- eign country, in a form which would pass the title if done in the United States, yet inadequate there, it is invalid in this country.^ In general a note is governed by the law of the place where it is payable.^ But a note secured by mortgage on land in another State, is not necessarily a contract of the former State.^ 12. Meyer v. Richards, 163 U. S. 3. Trimley v. Vignier, 1 Bing. N. .385, 16 S. Ct. 1148. C. 151, 6 Car. & P. 25. 13. Codman v. Krell, 152 Mass. 4. Tenant v. Tenant, 110 Pa. St. 214, 25 N. E. 90. 478, 1 A. 532; Barrett v. Dodge, 14. Emery v. Clough, 63 X. H. 16 R. I. 740, 19 A. 530, 27 Am. St. 552, 4 A. 796. Rep. 777; Compare American Free- 1. Wells V. Vansickle, 64 Fed. hold Land Mort. Co. v. Sewall, 92 Rep. 944; Hyde v. Goodnow, 3 N. Ala. 163, 9 So. 143, 13 L. R. A. 299; Y. 266; Davis v. Coleman. 7 Ired. Kilcrease v. Johnson, 85 Ga. 600. 11 (N. Car.) 424. S. E. 870; Mott v. Rowland. So 2. Warner v. Bank, 6 S. Dak. Mich. 561, 48 N. W. 638; New Eng- 152, 60 N. W. 746; Freese v. land Mortg. Co. v. McLaughlin, 87 Brownell, 35 N. J. L. 285, 10 Am. Ga. 1, 13 S. E. 81. Rep. 239; Hunt v. Standart. 15 5. Whitaker v. Security Co.. 97 Ind. 33, 77 Am. Dec. 79. Ca. 329, 22 S. E. 978; United States 454 Cll. 15 lA'TKKSTATE CONTRACTS. § 399 In the absence of any direct evidence as to where a note "vvas delivered, it will be presumed that it was where the maker resided — that being the place where it was dated and signed — and it will be payable there and governed by the laws of that State as to negotiability, thongh describing the payee as of a certain place in another State.^ Whether a note is negotiable as to maker is governed by the law of the place where payable.' The lex sohifionis governs as to whether the holder of a note is a bona fide purchaser for value ;^ lex solutionis governs as to days of grace ;^ also the presentment, notice of dishonor, protest, and the like ;^*' and the rate of interest unless otherwise stipulated,^^ but the lex cele- brationis governs the interest after maturity if no stipulation controls.^" But if the interest agreed upon is that of the lex loci solutionis, that must control the interest after maturity.^^ This question is now generally regulated by statute, and the interest is the legal rate after maturity^^ in some States ; but the law varies and local statutes must be consulted. The general rule holds as to endorsements. So a contract of endorsement of a promissory note is governed by the law of the State where it is made, although the note itself is executed and payable in another State, unless the intention is to negotiate the instrument elsewhere. ^^ Sav. & L. Asso. v. Scott, 98 Ky. lO. Wooley v. Lyon, 117 111. 244, 695, 34 S. W. 235 ; Basoom v. Zedi- (i N. E. 885, 57 Am. St. Rep. 867 ; ker, 48 Neb. 380, 67 N. W. 148. Mason v. Lake, 4 How. (U. S.) 6. Strawberry Point Bank v. 262. Lee, 117 Mich. 122, 75 N. W. 444. 11. Scotland County v. Hill, 132 7. Barrett v. Dodge, 16 R. I. U. S. 107, 10 S. Ct. 26; Morris v. 740, 19 A. 530, 27 Am. St. Rep. Wibaux, 159 111. 627, 43 N. E. 777; Rose v. Park Bank, 20 Ind. 837. 94, 83 Am. Dee. 306; Supervisors v. 12. Cromwell v. County of Sac, Galbraith, 99 U. S. 214. 96 U. S. 51. 8. Webster v. Machine Co., 54 13. Coghlan v. R. R. Co., 142 Conn. 394, 7 A. 22; Woodruff v. U. S. 101, 12 S. Ct. 150. Hill, 116 Mass. 310. 14. See Kurd's 111. Stat. 1903, 9. Skudder v. Bank. 91 U. S. 406; cli. 74, sec. 2. Brown v. Jones, 125 lud. 375, 25 X. 15. Spies v. Bank, 174 N. Y. E. 452, 21 Am. St. Rep. 227. 222, 66 N. E. 736, 61 L. R. A. 193. 455 §§ 399, 400 OPERATION OF CONTEACTS. Ch, 15 And so the transactions of a broker which become the basis of a note given and delivered by the principal, are to be taken into consideration in determining the validity of the considera- tion at the situs of such transactions." § 400. Marriage contracts. — The validity of a marriage con- tract is governed by the place where made, or the lex loci,^ if not controlled by statute. When the statute is silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations, the law of nature as gen- erally recognized by all civilized peoples. By that law, the validity of a marriage depends upon the question whether it was valid where it was contracted ; if valid there, it is generally valid everywhere. The only exceptions to the general rule in most of the States are: (1) Marriages which are deemed con- trary to the law of nature as generally recognized in Christian countries. (2) Marriages which the legislature of the State has declared shall not be allowed any validity, because contrary to the policy of the laws. The first class includes only those void for polygamy or for incest.^ A marriage which is prohibited in a State, because contrary to the policy of the laws, is generally valid if celebrated else^ where according to law of the place, even if the parties are citizens and residents of the former State, and have gone from it for the purpose of evading the laws, unless the legislature has clearly enacted that such marriages out of the State shall have no validity in the State from which the parties departed.^ 16. Winward v. Lincoln, 23 E,. 3. Medway v. Needham, 16 Mass I. 476, 51 A. 106, 64 L. R. A. 160. 157, 8 Am. Dec. 131 and note; Com 1. Clark V. Clark, 52 N. J. Eq. monwealth v. Lane, 113 Mass. 458 650, 36 A. 81. 18 Am. Rep. 509 and note. See. 2. Wightman v. Wightman, 4 also, Dickson v. Dickson, 1 Yerg, Johns. Ch. (N. Y.J 343, 349-351; (Tenn.) 110, 24 Am. Dec. 444; Com Sutton V. Warner, 10 Met. (Mass.) pare Brook v. Brook, 9 H. L. Cas. 451; Stevenson v. Gray, 17 B. Mon. 193, 3 Sm. & Giff. 481. (Ky.) 193; Bowers v. Bowers, 10 Rich. Eq. (S. Car.) 551. 456 Ch. 15 INTEKSTATE CONTBACTS. § 400 And a voidable marriage contracted in England, and never avoided there, mnst, upon tlie subsequent removal of the parties to Massachusetts, and the question arisino; collaterally in an action at common law, be deemed valid in the new domicil, although if contracted in Massachusetts, it would have been absolutely void.* Marriages not naturally unlawful, but prohibited by the law of one State, and not of another, if celebrated where they are not prohibited, are valid in a State where they are not allowed.^ If the parties are domiciled in one State where they cannot marry, but go into another State where the law permits them to marry, such marriage is valid if impugned in any State other than that of their domicil. If such marriage is questioned in their domicil, another rule may apply ; the decisions are in con- flict and not reconcilable. Two doctrines are announced: (1) The first is that the lex celebrationis must govern the capacities of the parties to enter the contract, as well as the forms of the ceremony, irrespective of the domiciliary law of the parties, if the marriage is not immoral.^ Under this doctrine nothing but a statutory prohibition will invalidate such marriage at the parties' domicil. (2) The other doctrine is, that if the domestic policy is so important and pronounced, or evils to be averted are so imminent, as to justify the enforcement of the lex domicillii it will be done and the marriage declared void.^ But this ques- tion is one of policy which each State will determine for itself, 4. Sutton V. Warren, 10 Met. 7. Ivinney v. Com., 30 Gratt. (Mass.) 451. (Va.) 858, 32 Am. Rep. 690; Pen- 5. 2 Kent's Com. 85, n. a.; Story negar v. State, 87 Tenn. 244, 10 S. on Confl. L. 116. W. 305, 2 L. K A. 703 and note, 10 6. Van Voorhis v. Brintnall, 86 Am. St. Rep. 648; True v. Ranney, N. Y. 18, 40 Am. Rep. 505 ; Medway 21 N. H. 52, 53 Am. Dec. 164; V. Needham, 16 Mass. 157, 8 Am. Jackson v. Jackson, 82 Md. 17, 33 Dec. 131 and note; Stevenson v. A. 317, 34 L. R. A. 773; State v. Gray, 17 B. Mon. (Ky.) 193; Cum- Tutty, 41 Fed. Rep. 753, 7 L. R. A. mington v. Belchertown, 149 Mass. 50; Brook v. Brook, 9 H. L. Cas. 223, 21 N. E. 435, 4 L. R. A. 131 193. and note. 457 § 400 OPERATION OF CONTRACTS. Oil. 15 90 far as its own citizens are concerned ; and the question may be settled by the courts as well as by the legislature.^ The same conflict of decisions appears in other cases as to the marriage of relatives.^ The variance of opinions exists as to the effect of a foreign marriage by a guilty party to a divorce suit who has been prohibited to marry again.^° When a contract to marry is executed, it creates a marital status which may be dissolved by divorce, which proceedings being quasi in rem, it must be determined what is the res, for the court's jurisdiction in proceedings in rem depends upon its jurisdiction of the res. The law now is that the courts of one State are not bound, under the full faith and credit provision of the Federal Constitution, to recognize a divorce granted in another State, in which neither of the parties was hona^ fide domiciled, even if the statute of the latter State purports to confer jurisdiction upon its courts under such circumstances, because the jurisdiction of the res depends upon domieil. Therefore, it is not dependent upon the mode of service, whether personal or by construction, and applies even when the court which granted the divorce had complete jurisdiction of the per- sons of both parties by their appearance.^^ Another question arises when the party avIio procured the divorce was hona fide domiciled in the State of the forum where it was granted, but the other party was a non-resident and served constructively. In such case the court has jurisdiction of the res, but has no jurisdiction of the defendant, and the ques- tion is whether it can proceed without jurisdiction, and render 8. State V. Kennedy, 76 X. Car. 10. For one doctrine see Penne- 251, 23 Am. Rep. 083. gar v. State, 87 Tenn. 244. 10 S. 9. Brook V. Brook, 9 H. L. Cas. W. 305, 2 L. R. A. 703 and note, 10 193; Sottomayor v. De Barras, 3 Am. St. Rep. 048; fol' the other P. D. 5, 7, where the domiciliary line see Van Voorhis v. Brintnall, law controls. But where the domi- 86 N. Y. 18, 40 Am. Rep. 505, and ciliary law does not govern, see Oova. v. Lane, 113 Mass. 458, 18 Stevenson v. Gray, 17 B. Mon. Am. Rep. 509 and note. (Ky.) 193, and Com. v. Lane, 113 11. Andrews v. Andrews, 188 U. Mass. 458, IS Am. Rep. 509 and S. 14, 23 S. Ct. 237. Dote. 458 Cll. 15 INTERSTATE CONTRACTS, §§ 400,401 a decree of divorce ag:ainst liini or her, as the case may bo, which the courts of another State are bound, under the full faith and credit provision, to recognize as affecting the marital status of the non-resident defendant. The Supreme Court of the United States answers this question in the affirmative,^^ and overrules the JSTew York doctrine that divorce proceedings are in personam, so that a foreign divorce obtained in a State where the plaintiff alone is domiciled will have no validity exterritorially, unless the defendant voluntarily appears or is personally served with pro- cess within the territorial jurisdiction of the divorce court/' And the New Jersey doctrine^* is not affected by the United States Sui)reme Court decision; for in New Jersey the non- resident defendant must have the best notice possible, after wdiich the domiciled plaintiff can have a valid decree under the Federal Constitution, Where the decree is rendered in a foreign country, the State courts can consult their own policy and reject the decree. When, however, it is a question of the recognition of such a decree rendered in another State of the Union, the court must recognize the decree under the Federal Constitution requiring each State to give full faith and credit to the public acts and judicial proceedings of every other. ^^ And where one party leaves his domicil and tries to acquire another by fraud, and there obtains a divorce, it is void, and a divorce obtained by the other party at her domicil will be valid and be so accepted in all the States of the Union.^® § 401. Married women — Infants. — The extent to which a married woman may bind her separate personal property or herself, is prima facie determined by the hiw of the State in 12. Atherton v. Atherton, 181 llo N. Car. 587, 20 S. E. 187, 44 U. S. 155, 45 L. Ed. 794, 21 S. Ct. Am. St. Rep. 471. 544. 14. Doughty v. Doughty, 27 N. 13. In re Kimball, 155 N. Y. .1. Eq. 315. 62, 49 N. E. 331. The New York 15. Art. 4, sec. 1. doctrine has been adopted in Cook 16. Bell v. Bell. 181 U. S. 175, V. Cook, 50 Wis. 195, 14 N. 33, 443, 21 S. Ct. 551. 43 Am. Rep. 700: TTarris v. Harris, 459 §401 OPERATION OF CONTRACTS. Ch. 15 which the contract is made, it being also the place of her domicil.^ Where a note made in one State by a married woman is sued on in another, the liability of her separate estate therefor will be determined by the laws of the latter.^ And a legal contract made in another State by a married woman, which she was not at the time capable of making under the law of her domicil, and which she cannot lawfully make at her domicil, is valid and can be enforced in the State of her domicil.^ But a contract made at her domicil and void cannot there- fore be enforced. Thus, in insolvency proceedings, a contract of guaranty dated and signed by parties in Chicago, and to be performed in Illinois, which was afterwards signed by a mar- ried woman who lived in Connecticut, and then delivered in Illinois, is, as to her, a Connecticut contract, and invalid under the laws of Connecticut for want of capacity to make such a contract.* However, if a married woman has the general power to contract, her contracts will be as valid as those of other parties with full capacity.^ But the common law, which makes the con- tract of a married woman invalid, must still be accepted as the general rule for those States which have not made exceptions by statutes. Hence, a State of her domicil has the power to pro- tect a married woman from the result of her contract made while personally present in such State, if it choose so to do.® If the domicil and forum impose a total incapacity to con- tract on the part of a married woman, the law of the domicil 1. Dulin V. McCaw, 39 W. Va. Rep. 473; Johnson v. Gawtry, 11 721, 20 S. E. 681. Mo. App. 322; Bank v. Williams, 2. Read v. Brewer (Miss.), 16 45 Miss. 618. South. Rep. 350; Frieison v. Wil- 4. First Nat. Bank v. Mitchell, liams, 57 Miss. 451. • 84 Fed. Rep. 90, 180 U. S. 471, 21 3. Milliken v. Pratt, 125 Mass. S. Ct. 418. 374, 28 Am. Rep. 241. See, also, 5. Bowles v. Field, 78 Fed. Rep. Baldwin v. Gray, 16 Martin (La.), 742; Milliken v. Pratt, 125 Mass. 192 ; Saul v. Creditors, 17 Martin 374, 28 Am. Rep. 241 ; Bell v. Pack- (La.), 569, 597; Andrews v. Credi- ard, 69 Me. 105, 31 Am. Rep. 251. tors, 11 La. Ann. 464, 476; Com- 6. First Nat. Bank v. Mitchell, pare Armstrong v. Best, 112 N. 84 Fed. Rep. 90, 180 U. S. 471, 21 Car. 59, 17 S. E. 14, 34 Am. St. S. Ct. 418. 460 Ch. 15 INTERSTATE CONTRACTS. § 401 and forum will be substituted for the lex loci celebrationis, upon the ground that tlie policy of protection to the married women of the State is too important a policy to be set aside by a foreign law.' But where the laws of the domicil and forum only declares a few of a married woman's contracts void, a suit there upon a contract made in another State where it is valid, which contract is beyond her capacity under her domiciliary law, the contract will still be enforced against her, even at her domicil. Because the enforcement of the protective policy is of less im- portance to the community than the general policy of recogniz- ing the binding effect of contracts and the sovereignty of another State over matters within its jurisdiction.^ So the rule is dif- ferent where the married woman's capacity is total or partial. So if her contract is only voidable in her domiciliary courts, the lex celebrationis wall be enforced there. Where the common law prevails in full force, making a married woman totally incapable of entering into a contract, her inca- pacity must be considered as so fixed by the policy of the State for the protection of its own citizens, that it will not yield to the law of another State in which she might contract.^ If the policy of protection to its citizens, adopted by the law of the domicil and forum, is not so pronounced as to make an infant's contract void, but only voidable, the liability of an in- fant upon his contracts is to be determined, even in the courts of his domicil, by the lex celebrationis of his contract, and not by the law of the domicil and forum.^** Contracts of suretyship are governed by the law where exe- cuted.^^ But it is not always clear where the execution was. 7. First National Bank v. ard, 69 Me. 105, 31 Am. Rep. 251. Shaw, 100 Tenn. 237, 70 S. W. 867, 9. First Nat. Bank v. Shaw, 109 59 L. R. A. 498; Case v. Dodge, 18 Tenn. 237, 70 S. W. 807, 59 L. R. R. I. 661, 29 A. 785; Baum v. A. 498; Minor's Conf. L., p. 147. Birchall, 150 Pa. St. 164, 24 A. 620, 10. Thompson v. Ketcham, 8 SO Am. St. Rep. 797; Hanover Nat. Johns. (N. Y.) 189; Wilder's Sue- Bank V. Howell, 118 N. Car. 271, cession, 22 La. Ann. 219, 2 Am, 23 S. E. 1005; Bowles v. Fields, 78 Rep. 721; Male v. Roberts, 3 Esp. Fed. Rep. 742. 163. 8. Milliken v. Pratt, 125 Mass. 11. Pingrey's Suretyship and 374, 28 Am. Rep. 241; Bell v. Pack- Guar. 93. 461 401 OPEEATIOX OF CONTKACTS. Ch. 15 Thus, a married woman's contract as surety on a note is gov- erned bj the law of tlie place of signing and delivery to payee, though the note is payable in another State and, as against the maker has no valid inception until its negotiation in the latter State, provided the surety had no knowledge of its negotiation there, or intention that her contract shall be governed by the laws of that State.-^^ The lex loci conti^actus will also govern her contract, if she is not under total disability to contract at her domicil. Thus, a married woman became a guarantor for her husband in Maine where her contract was valid ; she was sued on this contract in Massachusetts, her domicil, where she could not make such a contract, and the contract was enforced." She was not totally disabled to contract in Massachusetts. If she had been totally unable to contract at her domicil, the con- tract would not have been enforced against her." So where there is a written promise of a married Avoman, domiciled in !New Jersey, to pay a sum of money to the order of her husband, signed by her at her domicil, and carried by him wdth her acquiescence, to ^ew York, and there endorsed, and there de- livered in exchange for other notes in the State of New York, the capacity of the wife to bind herself by a contract of surety- ship is to be determined by the law of New York. Such a contract is valid in ]S^ew York and therefore can be enforced in any other State.^^ Some other courts seem to decide con- trary to this doctrine as to the situs of the contract, and hold that it is where the married woman signed the instrument.^® Thus, w^here a contract of guaranty is dated and signed by 12. Union Nat. Bank v. Chap- man, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513 and note, 88 Am. St. Rep. 664; First Nat. Bank v. Mitchell, 180 U. S. 471, 21 S. Ct. 418. 13. Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241. 14. Armstrong v. Best, 112 N. Car. 59, 17 S. E. 14, 25 L. R. A. 188. 15. Thompson v. Taylor, 66 N. J. L. 253, 49 A. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485. See, also, Milliken v. Pratt, 125 Mass. 375, 28 Am. Rep. 241; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251; Bowles V. Field, 78 Fed. Rep. 242; Skudder v. Bank, 91 U. S. 406. 16. Freeman's Appeal, 68 Conn. 533, 37 A. 420, 37 L. R. A. 452, 57 Am. St. Rep. 112. 462 Ch. 15 I^'TEKSTATE CONTRACTS. § 401 others at Chicago, and to be performed in Illinois, and after- wards is sent to a married woman in Connecticut, who signed it in that State, and then gave it to her hnsband who delivered it in Illinois, the situs of the contract as to the wife was in Con- necticut, under whose laws she was not capable of making it, and therefore unenforceable against her in any place." This doctrine was not accepted on appeal, and a majority of the appellate court said that the wife became liable in Illinois, although she could not be held according to law of her domicil if the contract had been executed there, that is, in Connecticut ; tliat the question involved was one of general jurisdiction, in which case it was the duty of a Federal court to act inde- pendently of a State court decision. ^^ Then the case was taken to the United States Supreme Court, which reversed the United States Circuit Court of Appeals decision and affirmed the deci- sion of the United States Circuit Court. ^^ The court held that the law of the court of Connecticut should be followed. The question had been passed upon by the court of last resort of Connecticut, which held that the wife was not capaciated to make the contract ; that it is not the place of delivery of a con- tract that always controls, but the power of delivery. There- fore, the wife having no legal capacity to deliver the contract to her husband or to any one, it was void.^" The United States Supreme Court held that the decision of the State court con- trolled and, therefore, the wife was not liable. As the bank of Illinois presented its claim in Connecticut, and as it was passed upon by the Connecticut court of last resort, the bank was bound by the State decision thoug-h it had taken the case into the Federal courts, on the ground that a right, question or fact distinctly put in issue and directly determined by a court of competent, jurisdiction, as a ground of recovery, can- not be disputed in a subsequent suit between the same parties 17. First Nat. Bank v. Mitchell, 20. Fieeman's Appeal, G8 Conn. 84 Fed. Rep. 90. 533, 37 A. 420. 37 L. R. A. 452, 57 18. 9-2 Fed. Rep. 5G.5. Am. St. Rep. 112. 19. Mitchell v. Bank, 180 U. S. 471. 21 S. Ct. 418. 463 §§ 401, 402 OPERATION OF CONTEACTS. Ch. 15 or their privies ; and even if the suit is for different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as con- clusively established, so long as the judgment in the first suit remains unmodified.^^ The Connecticut doctrine is against the weight of authority. The Connecticut doctrine is based on the assertion that the wife had no power to deliver the contract, so there was no legal delivery. In JSTew York it is held that the contract of a married woman as surety on a note, is gov- erned by the law of the place where her signature is affixed and the instrument delivered to the payee, although the note is pay- able in another State and as against the makers has no valid inception imtil its negotiation in the latter State, if the surety or married woman has no knowledge that it is to be negotiated there or intention that her contract shall be governed by the laws of that State.^^ § 402. Chattel mortgage lien follows the property. — It is the general rule that when the mortgagor removes to another State and takes the mortgaged property with him, the mortgage lien still attaches to the property, if the mortgage was duly executed in the former State.^ The general rule of comity as to this mortgage lien is not recognized in some States. In Louisiana, chattel mortgages are unknown. So the court is not bound by the comity of nations to enforce a contract which, if made in this State, could not 21. Southern Pac. R. R. Co. v. Mo. 255, 21 S. W. 511, 19 L. R. A. United States, 168 U. S. 1, 18 S. Ct. 463, 35 Am. St. Rep. 754 ; Bank 18. V. Metcalf, 40 Mo. App. 501; Hin- 22. Union Nat. Bank v. Chap- ney v. Baldwin, 16 111. 108, 61 Am. man, 169 N. Y. 538, 62 N. E. 672, Dec. 62; Smith v. Whitaker, 23 III. 57 L. R. A. 513 and note, 88 Am. St. 369; Roundtree v. Baker, 52 111. Rep. 614. See Mutual Ins. Co. v. 241, 4 Am. Rep. 597; Mumford v. Cohen, 179 U. S. 262, 21 S. Ct. 106; Canty, 50 111. 370, 99 Am. Dec. Smith V. Ingram, 130 N. Car. 100, 525 ; Wolf v. Shannon, 50 111. App. 40 S. E. 984, 61 L. R. A. 878, 132 396; Clough v. Kyne, 40 111. App. N. Car. 959, 44 S. E. 643, 95 Am. 234 ; Craig v. Williams, 90 Va. 500, St. Rep. 680. 18 S. E. 899, 44 Am. St. Rep. 934; 1. National Bank v. Morris, 114 Hubbard v. Andrews, 70 Ga. 177; 464 Ch. 15 INTERSTATE CONTRACTS. § 402 defeat the rights acquired bv attachment laws. This lien is not recognized in Louisiana.^ In Pennsylvania chattel mortgages are not in general use, and a chattel mortgage made in another State and valid there, may be enforced in Pennsylvania as between the parties, yet it cannot be enforced as against a creditor or purchaser who has acquired rights in the property after it has been brought into the State. ^ In Michigan and Tennessee chattel mortgages are recognized and executed as in other States, but the rule adopted is in con- flict with that accepted in other States. So if mortgaged prop- erty is carried into Michigan or Tennessee the legal execution of the mortgage in another State is no notice to purchasers or creditors of that State.* In Tennessee actual notice of such mortgage will protect the mortgage in the other State. So if the chattels are in another State and the mortgage is void there, but valid at the lex loci contractus, the lex fori ci situs will usually govern upon the ground that the enforcement according to the lex loci contractus would contravene the policy of the forum or work injury to its citizens.'' Bank v. Lee, 13 Pet. (U. S.) 107; Chat. Moit. 410. See, also, Ballard Beale v. Williamson, 14 Ala. 55; v. Winter, 39 Conn. 179; Lang- Jones V. Taylor, 30 Vt. 42; Wilson worthy v. Little, 12 Cush. (Mass.) V. Carson, 12 Md. 54; Barker v. Ill; Barrows v. Turner, 50 Me. Stacy, 25 Miss. 477; Smith v. Mc- 127; Iron Works v. Warner, 76 Lean, 24 Iowa, 322; OfTutt v. Flagg, Ind. 512, 40 Am. Rep. 258. 10 N. H. 46 ; Hornthal v. Burwcll, 2. Delop v. Windsor, 26 La. Ann. 109 N. Car. 10, 13 S. E. 721, 13 185; Hughes v. Klingender, 14 La. L. R. A. 740 and note, 26 Am. St. Ann. 845. Rep. 556; Handley v. Harris, 48 3. McCabe v. Blymyre, 9 Phila. Kans. 606, 29 P. 115, 30 Am. St. (Pa.) 615; Jeter v. Fellows, 32 Pa. Rep. 322; Feurt v. Rowell, 62 Mo. St. 465. 524; Keenan v. Stimpson, 32 Minn. 4. Boydson v. Goodrich, 49 Mich. 377, 20 N. 364; Kanaga v. Taylor, 65, 12 X. 913; Montgomery v. 7 Ohio St. 134, 70 Am. Dec. 62 and Wright, 8 Mich. 143; Snider v. note; Parr v. Brady, 37 N. J. L. Yates (Tenn.), 64 L. R. A. 353. 201; Cool V. Roche, 20 Neb. 5.50, 31 See, also, Corbett v. Littlefield, 84 N. W. 367; Ryan v. Clanton, 3 Mich. 30, 47 N. W. 581, 11 L. R. A. Strob. (S. Car.) 413; Ferguson v. 95. 22 Am. St. Rep. 681. Clifford, 37 N. H. 87 ; Norris v. 5. Green v. Van Buskirk, 5 Wall. Sowles, 57 Vt. 360; Pingrey on (U. S.) 307; Chillingworth v. Tin- 465 §§ 402, 403 OPEUATION OF CONTRACTS. Cll. 15 In some States a chattel mortgage gives a mere lien, and does not convey the title with a defeasance. In these States the lien given bj the lex loci contractus, though valid as be- tween the parties, lias no priority over domestic creditors of the mortgagor, recognized by the law of the last situs of the chat- tels and of the forum.^ In cases of the sale of chattels with a reservation of title in the vendor until the price is paid, the rule is that the law of the place where the subsequent dealings occur will govern.^ § 403. Conveyance of real estate. — The law of the sover- eignty in which the realty is situated governs as to the transfer of such property, whether conveyed absolutely or by mortgage.^ And so if a mortgage is executed in one State where it is in- valid, if it is valid in the State where the land lies, it is suffi- cient and will be enforced in the latter.^ But where the con- veyance of title is not involved the note is governed by the law of the place where payable. Thus, a note payable in Missouri is governed by the Missouri statute allowing four per cent, damages upon protested notes, although secured by a mort- gage of Illinois land ; and this notwithstanding the statute of Illinois provides that when any written contract wherever pay- able shall be secured by mortgage on land in this State, it may bear any rate of interest allowed to be taken in this State.^ ware Co., 66 Conn. 306, 33 A. 1009; 1. Swank v. Hufnagle, 111 Ind. Smith V. Smith, 19 Gratt. (Va.) 453, 12 N. E. 303; Otis v. Gregory, 545. Ill Ind. 504, 13 N. E. 39; Brown 6. Cronan v. Fox, 50 N. J. L. v. Bank, 44 Ohio St. 269, 6 N. E. 417, 14 A. 119. See Walworth v. 648; Gates v. Gaither, 46 La. Ann. Harris, 129 U. S. 355, 9 S. Ct. 286, 15 So. 50; Goddard v. Sawyer, 340. 9 Allen (Mass.), 78; United States 7. Harvey v. Locomotive Works, v. Crosby, 7 Cranch (U. S.), 115; 93 U. S. 664; Marvin Safe Co. v. United States v. Fox, 94 U. S. 320; Norton, 48 N. J. L. 412, 7 A. 418, Commercial Banlc v. Jackson, 7 57 Am. Rep. 566 and note. See Dak. 135, 63 N. W. 548. "Conflict of Laws as to Sales of 2. Post v. Bank, 138 111. 559, 28 Live Stock in One State, Held Un- N. E. 978. der Chattel Mortgage in Another." 3. Guiguon v. Trust Co., 156 111. —54 Cent. L. J. 443. 135, 40 X. E. 556, 47 Am. St. RepL 186. 466 Cll. 15 liNTJiltSTATi: C(4NTli.VCTS. § 403 In the absence of evidence explanatory of the transaction the presumption is that the payment of the proceeds of a loan and tlie delivery of the note and mortgage are contemporaneous acts, and that the note is not a foreign contract although it appears from its face to have been executed in one State some days previous to the execution of the mortgage in another State." The rights and obligations under acts passed in one State to be exercised in another, respecting transfer of real estate in the latter, are regulated, in point of form, substance, and validity, by the laws of the State in which such acts are to have effect.^ And so the law of the place where the land is situated, will govern the right of the parties in the enforcement of a cove- nant, in so far as it relates to the question of the covenant run- ning with the land.^ Likewise the construction of a mortgage foreclosed in JSTebraska on Iowa lands will be in accordance with the law of Iowa, and so the proceeds arising from the sale of such land will be applied first to the payment of the notes in order of time in which they fall due.^ The general rule is that the lex situs must control so far as the covenants of the title running with the land are concerned.^ In Indiana the lex celebrationis of the ccvenant is also lex solu- tionis, and must govern.^ The lex situs will govern the obligation of a contract to con- vey, the contract being made in another State/*' So a mechanic's lien is governed by the lex situs of the land on which the lien rests.^^ 4. Stark v. Olsen, 44 Neb. 646, Succession of Cassidy, 40 La. Ann. 63 N. W. 37. 827, 5 So. 292. 5. Succession of Larendon, 39 La. 9. Worley v. Hineman, 6 Ind. Ann. 952, 3 So. 219; Succession of App. 240, 33 N. E. 260; Jackson v. Cassidy, 40 La. Ann. 827, 5 So. 292. Green, 112 Ind. 341, 14 N. E. 89. 6. Riley v. Burroughs, 41 Neb. 10. Rush v. Lander, 107 La. Ann. 296, 59 N. W. 929. 549, 32 So. 95, 57 L. R. A. 353; 7. Whipple V. Fowler, 41 Neb. Garden City Sand Co. v. Miller, 157 675, 60 N. W. 65. 111. 225, 41 N. E. 753; Carnegie v. 8. Tillotson v. Prichard, 60 Vt. Morrison, 2 Met. (Mass.) 381. 94, 14 A. 302, 6 Am. St. Rep. 95; 11. Campbell v. Coon, 149 N. Y. 467 §§ 403, 404 OPERATION OF CONTRACTS. Cll. 15 If the lex situs of the land requires a sale to be in writing, making the contract void if not in writing, the lex situs must govern.^^ But there is no reason why the personal contract should not be enforced, according to the lex celehrationis, and specific performance may be decreed in a third State, and prob- ably at the situs of the property ;" or the promisee waiving all right to the land may recover damages. In such case, the lex celehrationis should govern, whether the action be brought in "the courts of the situs of the locus celehrationis, of a third State." Where a married woman must be examined separate and apart from her husband, the lex situs must govern, as to the validity of the deed.^^ § 404. Insurance contracts. — Contracts for the insurance of property against loss by fire is a mere contract for indemnity in case of loss, and in no way attaches to or affects title to such property.^ And an insurance company of a State, within the State, may make a valid contract of insurance upon property of another party of the same State, although such property is situated in another State in which the insurance company has no authority to do business.^ And so when an insurance company takes a risk in another State, it voluntarily submits itself to the laws of that State as to the service of process upon it;^ and it is not necessary that 556, 44 N. E. 300, 38 L. R. A. 410 (Mass.) 381; Minor's Conf. L. 416, and note; United States Invest. Co. 417; Story's Conf. L., sec. 372d; V. Windmill Co., 54 Kan. 144, 37 P. Wharton's Conf. L., sec. 276a. 982. 15. Smith v. Ingram, 130 N. Car. 12. Poison V. Stewart, 167 Mass. 100, 40 S. E. 984, 61 L. R. A. 878, 211, 45 N. E. 737, 36 L. R. A. 771, 132 N. Car. 959, 44 S. E. 643, 95 57 Am. St. Rep. 552. Am. St. Rep. 680. 13. Poison V. Stewart, 167 Mass. 1. Darrell v. Tibbitts, 5 Q.B. Div. 211, 45 N. E. 737, 36 L. R. A. 771, 560; Stanhilber v. Ins. Co., 76 Wis. 57 Am. St. Rep. 552. 291, 45 N. W. 221. 14. Wolf V. Burke, 18 Colo. 264, 2. Seamons v. Knapp Co., 89 32 P. 427, 19 L. R. A. 792 and note; Wis. 171, 61 N. W. 757, 27 L. R. A. Miller v. Wilson, 146 111. 523, 34 362, 46 Am. St. Rep. 825. N. E. 1111, 37 Am. St. Rep. 186; 3. Fireman's Irs. Co. v. Thomp- Carnegie v. Morrison, 2 Met. son, 155 111. 204, 40 N. E. 488, 46 468 Cll. 15 INTERSTATE CONTEACTS. § 404 the right of service of process upon foreign insurance companies doing business within a State should be dependent upon their first taking out a license to do business.* If a place is designated for the payment of insurance money that is the locus solutionis. If tlie policy is in general terms, with no such place designated, then the locus solutionis, as is generally held, will be presumed to be the same as the locus celebrationis.^ Other cases hold that in case of insurance on buildings, the situs of the land is the locus solutionis.^ Other cases hold that where the insurance is only on personal property or on life, the doniicil of the insurer is the locus solutionis.'' If the policy is binding as soon as issued or on approval of the company, the celebrationis is where the policy is issued or approved by the company.* An insurance policy, like other contracts, is completed when delivered, and the place of delivery is the locus celebrationis.'* However, if the insured is to be notified by mail or otherwise that the risk is accepted, the place of the delivery of the policy is immaterial.^*' If the policy is to be mailed to the insured, Am. St. Rep. 335; State v. In- Ins. Co., 8 Wash. 427, 36 P. 267, 40 demnity Asso., 62 Wis. 174, 22 N. Am. St. Rep. 917. W. 135. 8. Voorhies v. Society, 91 Mich. 4. State V. Mut. Accident Asso., 469, 51 N. W. 1109; State, etc. Ins. 67 Wis. 624, 31 N, W. 229; Gibbs Co. v. Brinkley, 61 Ark. 1, 31 S. E. V. Ins. Co., 63 N. Y. 114. L^O Am. 157, 54 Am. St. Rep. 191; Equita- Rep. 513; Pope v. Terre Haute, etc. h]^, etc. Society v. Redding, 83 Fed. Co., 87 N. Y. 137; Osborne v. Ins. Rep. 85, 27 C. C. A. 404, 48 U. S. Co., 51 N. Y. 278; McNichol v. U. App. 565. S. etc. Asso., 74 Mo. 457; Lhoneux 9. Equitable, etc. Soc. v. Clem- V. Corporation, L. R. 33 Ch. Div. ents, 140 U. S. 225, US. Ct. 822; 446; Griesemer v. Ins. Co., 10 Mutual L. Ins. Co. v. Cohen, 179 Wash. 202, 38 P. 1031.' U. S. 262, 15 S. Ct. 106; Perry v. 5. Seamans v. Knapp Co., 89 Ins. Co., 67 N. H. 291, 33 A. 731, Wis. 171, 61 N. W. 757, 46 Am. St. 68 Am. St. Rep. 668; Hicks v. Ins. Rep. 825, 27 L. R. A. 362. Co., 60 Fed. Rep. 690, 9 C. C. A. 6. Gibson v. Ins. Co., 77 Fed. 215; In re Breitung, 78 Wis. 33, 46 Rep. 561. N. W. 891, 47 N. W. 17. 7. Knights Templars Asso. v. 10. Perry v. Ins. Co., 67 N. H. Greene, 79 Fed. Rep. 461; Wood v. 291, 33 A. 731, 68 Am. St, Rep. 668. 469 § 404 OPERATION OF CONTEACTS. CTl. 15 then delivery is at the place of mailing; if mailed to a third person to be delivered, then the delivery takes place in the State where delivered.^^ If the policy only becomes binding on pay- ment of first premium, then the place v^^here paid is the locus celebrationis}^ Or if the policy is to be countersigned by an agent, or something else is to be done, the locus celebrationis is where the act is performed,^^ A stipulation that the non-payment of premiums shall avoid the contract, is governed by the lex celebrationis of the con- tract," though it has been held that the lex celebrationis is the place whose law the parties had in mind.^^ If the policy provides that the suicide of the insured shall avoid the policy it is void in another State, if void by the lex celebrationis}^ If the contract is made in one State, the stipulation to submit the parties to another law is of no validity, because the law of the situs governs the validity of the contract. If the parties desire a different law to govern their contract they must go into another jurisdiction." And whether a party has an insurable interest in another's life is governed by the lex celebrationis. When there is no positive law to the contrary, the designating a beneficiary in a life policy is to be governed by the lex domi- cillii of the assured. ^^ The validity of premium notes depend upon the validity of 11. Equitable, etc. Soc. v. Clem- 15. Finney v. Ins. Co., 67 Fed. ents, 140 U. S. 226, 11 S. Ct. 822. Rep. 493. 12. Equitable, etc. Soc. v. Clem- 16. Ejiights Templar Indem. Co. ents, 140 U. S. 226, 11 S. Ct. 822; v. Berry, 50 Fed. Rep. 511; Na- Mutual L. Ins. Co. v. Cohn, 179 U. tional Union v. Marlow, 74 Fed. S. 262, 21 S. Ct. 106; Mandon v. Rep. 775. Ins. Co., 85 Iowa, 584, 52 N. W. 17. Perry v. Ins. Co., 67 N. H. 509, 39 Am. St. Rep. 316; Ford v. 291, 33 A. 737, 68 Am. St. Rep. Ins. Co., 6 Bush. (Ky.), 133, 99 668; Penn Mut. L. Ins. Co. v. Am. Dec. 663 and note. Trust Co., 72 Fed. Rep. 413, 38 L. 13. Gibson v. Ins. Co., 77 Fed. R. A. 33 and note. Rep. 561; Heebner v. Ins. Co., 10 18. Masonic Asso. v. Jones, 154 Gray (Mass.), 131, 69 Am. Dec. Pa. St. 107, 26 A. 255; Knights 308. Templars Asso. v. Greene, 79 Fed. 14. Wall V. Equitable Soc, 32 Rep. 461; Mullen v. Reed, 64 Conn. Fed. Rep. 273; Hicks v. Ins. Co., 340, 29 A. 478, 25 L. R. A. 694. 60 Fed. Rep. 690, 9 C. C. A. 215. 470 Ch. 15 INTERSTATE CONTEACTS. §§ 404,405 the contract of iiisnraiu'c. So if the contract is pbohibited in one State where made, it will not be enforced in another State, and the notes will be invalid.^' Bnt if valid where raado, and in direct violation of the laws of the State where the property ihas its situs and where the insured resides, it will not be en- forced in the latter State.^" However, this doctrine does not apply to a foreigii policy, which, by statute, must have a correct copy thereof attached to it; such provision has no bearing^ on policies issued by for- eign companies in other States, although they were on lives of persons domiciled in the State where the statute was enacted.^^ § 405. Assignment of policy of insurance. — Assignment of a life insurance policy is governed by the law of the place where the assignment is made, and not by the law of the place where the policy is issued or insurance payable.^ In general an assignment of a policy of insurance is not governed by the rules of law different from those in cases of assignment of choses in actions. If the assignment is void when made, though valid where the policy was issued, it will be void in the latter place also.* Thus, when a Massachusetts corporation has issued an endowment policy insuring a husband's life for a period of time, payable to the wife, if living, in case of husband's death during the endowment period, which was assigned by the hus- band and wife, who reside in ISTew York, the laws of the latter State govern the validity of the assignment.^ 19. Ford V. Ins. Co., 6 Busn ney, 13 Ind. App. 67, 41 N. E. 78; (Ky.), 133, 99 Am. Dec. 663 and Lee v. Abdy, 17 Q. B. Div. 300. note; Blackwell v. Webster, 29 Fed. 2. I^e v. Abdy, 17 Q. B. Div. Rep. 614. 309; Prentice v. Steele, 4 Montreal 20. Swing V. Munson, 191 Pa. L. R. 319; Union Central Life Ins. St. 582, 43 A. 342, 59 L. R. A. 223, Co. v. Woods, 11 Ind. App. 335, 37 71 Am. St. Rep. 772. N. P]. 180, 39 N. E. 205. 21. Johnson v. Ins. Co., 180 3. Miller v. Campbell, 140 N. Y. Mass. 407, 62 N. E. 733, 63 L. R. A. 457, 35 N. E. 051; In re Breitung, 833. 78 Wis. 33, 46 N. W. 891, 47 N. W. 1. Miller v. Campbell, 140 N. Y. 17. 457, 35 N. E. 651; Criswell v. Wl.it- 471 § 400 OPEEATION OF CONTRACTS. CTl. 15 § 406. Assignment of property. — The general rule of law is that if a voluntary conveyance of personal property is valid by the law of the State where made, it passes the title wherever the property may be situated, and this rule is applicable to cases of voluntary assignment for the benefit of creditors.^ When a transfer of property is valid by the law where the vendor resides and the property is situated, though it would not be if executed in another State, the title is not displaced by subsequent removal of the property to the latter State, even as to creditors residing in the latter State seeking a remedy against it.' The lex loci contractus governs the transfer, though the prop- erty be situated in another State, except when the enforcement of lex loci contractus would contravene public policy of the actual situs and forum, or would work injury or injustice to the citizens of the State. Then this law cannot govern and the courts will administer the lex fori} In regard to land the validity of the conveyance to pass title is governed by the lex situs, but the effect as an assignment is to be determined by the lex loci contractus, unless the enforce- ment of this law would contravene public policy or work injus- tice or injury to the citizens of the forum.* However, some of the cases hold that the lex situs of the land controls under all circumstances.^ Resident creditors may always take advan- 1. Covey V. Cutler, 55 Minn. 18, 3. liarnett v. Kinney, 147 U. S. 56 N. W. 255; Pritchard v. Nor- 476, 13 8. Ct. 303; Egbert v. Baker, ton, 106 U. S. 124, 1 S. Ct. 102; 58 Conn. 319, 20 A. 466; Frank v. Hanford v. Paine, 32 Vt. 442, 78 Bobbitt, 155 Mass. 112, 29 N. E. Am. Dec. 586 and note; Barnett v. 209; Walters v. Whitlock, 9 Fla. Kinney, 147 U. S. 476, 13 S. Ct. 86, 76 Am. Dec. 607. 403; Frazier v. Fredericks, 24 N. 4. May v. Bank, 122 111. 551, 13 J. L. 162. N. E. 806; Chafee v. Bank, 71 Me. 2. McKibben v. Ellingson, 58 514, 36 Am. Rep. 345; Thornton v. Minn. 205, 59 N. W. 1003, 49 Am. Rosenfeld, 42 Mo. 474, 97 Am. Dec. St. Rep. 499; Cragin v. Lamkin, 351. 7 Allen (Mass.), 395; Cook v. Van 5. Moore v. Church, 70 Iowa, Horn, 81 Wis. 291, 50 N. W. 893; 208, 30 N. W. 855, 59 Am. Rep. May V. Wannamacher, 111 Mass. 439; Augusta Sav. Bank v. Stel- 202. See, also, Thompson v. Ellenz, lings, 31 S. Car. 380, 9 S. E. 1028. 58 Minn. 301, 59 N. W. 1023. 472 Ch. 15 INTERSTATE CONTRACTS. § 406 tage of the invalidity of the assignment under the lex fori et situs, validly executed in another State.® Many cases make no difference whether the creditors are citizens of the forum or non-residents, in substituting the lex fori for the lex celebrationisJ But some of the court decide that the citizens of the locus contractus must abide by their own laws, giving the benefits of the lex fori et situs to all other creditors.^ Involuntary assignment, if the title once vests in the assignee, and is not invalid by the lex fori et situs, is valid in every juris- diction, as a legal exercise of the owner's rights to convey his property.^ Involuntary assignments pass the title to the assignee only of property within the State. This is the American doctrine.^" But where the rights of foreign creditors are not concerned, the lex domicillii will be recognized in other jurisdictions." How- ever, if the property is non-negotiable chose in action, the assignee cannot sue in his own name unless the lex fori per- mits it.^^ The lex fori demands the payment of taxes of the sitv^ et 6. Green v. Iron Works, 49 N. J. 8t. Rep. 104; Faulkner v. Hymes, Eq. 48, 23 A. 498; Woodward v. 142 Mass. 53, 6 N. E. 846. Brooks, 128 111. 222, 20 N. E. 685, 9. Askew v. Bank, 83 Mo. 366, 3 L. R. A. 702 and note, 15 Am. St. 53 Am. Rep. 590; First Nat. Bank Rep. 104. V. Walker, 61 Conn. 154, 23 A. 696; 7. Barth v. Backus, 140 N. Y. Crapo v. Kelly, 16 Wall. (U. S.) 230, 35 N. E. 425, 23 L. R. A. 47, 37 622; Law v. Mills, 18 Pa. St. 185. Am. St. Rep. 545; Woodward v. 10. Crapo v. Kelly, 16 Wall. (U. Brooks, 128 111. 222, 20 N. E. 685, S.) 610; Booth v. Clark, 17 How. 3 L. R. A. 702 and note, 15 Am. St. (U. S.) 322; Paine v. Lester, 49 Rep. 106; Augusta Bank v. Stel- Conn. 196, 26 Am. St. Rep. 442. lings, 31 S. Car. 360, 9 S. E. 1028; 11. Willetts v. Waite, 25 N. Y. First Nat. Bank v. Walker, 61 583; Kirkland v. Lowe, 33 Miss. Conn. 154, 23 A. 696. 423, G9 Am. Dec. 355. 8. Cole V. Cunningham, 133 U. 12. Milne v. Moreton, 6 Binn. S. 107, 10 S. Ct. 2G9; Woodward v. (Pa.) 353, 6 Am. Dec. 466; Kirk- Brooks, 128 111. 222, 20 N. E. 685, land v. Lowe, 33 Miss. 423, 69 Am. 3 L. R. A. 702 and note, 15 Am. Dec. 355. 473 §§ 406, 407 OPERATION OF CONTKACTS. Ch. 15 forum}^ and debts due to residents.^^ And many of the courts give tlie privilege to non-resident creditors. ■^^ In England the doctrine is sustained that an involuntary assignment conveys title in every jurisdiction, even against creditors resident in the actual situs et forum}^ § 407. As to the situs of personal property. — Formerly it was held in England that personal property has no situs, and that with respect to the disposition and to the trans- mission of it, either by succession or act of the party, it follows the law of the person.^ But there has been a departure from this rule, as shown in the preceding section, and now a distinction is drawn between cases of succession, as in marriage, death and bankruptcy, where the property follows the person and so governed by the law of his domicil, and isolated transac- tions of alienation and the creation of special claims against the property, in which it is to be considered independently of its owner and so governed by the law where it is situated, lex rei sitae. The present rule is this, that questions as to the transfer or acquisition of property in corporeal movables, or of any less extensive real rights in them, as pledge or lien, are generally decided by lex rei sitae} So as to priority of conflicting claims or liens, lex rei sitae prevails, the right of priority being a personal privilege, de- pendent on the place where the property has its actual situs 13. Harrison v. Sterry, 5 Cranch. 425, 23 L. R. A. 47, 37 Am. St. Rep. (U. S.), 289. 545; Blake v. Williams. 6 Pick. 14. Sturtevant v. Armsby Co., (Mass.) 286, 17 Am. Dec. 372. 66 N. H. 557, 23 A. 368, 49 Am. St. 16. Paine v. Lester, 44 Conn. Rep. 627; May v. Bank, 122 111. 196, 26 Am. Rep. 442; Booth v. 551, 13 N. E. 806; Long v. Gird- Clark, 17 How. (U. S.) 322. wood, 150 Pa. St. 413, 24 A. 711, 23 1. Sill v. Wooswick (1791), 1 H. L. R. A. 33 and note. Bl. 665. 15. Cole V. Cunningham, 133 U. 2. Inglis v. Usherwood, 1 East, S. 167, 10 S. Ct. 269; Barth v. 515; Coote v. Jeeks, L. R. 13 Eq. Backus, 140 N. Y. 230, 35 N. E. 597. 474 Ch. 15 INTERSTATE CONTRACTS. 407 and where the court sits which has jurisdiction.^ So in case there is a conflict between two States upon an assignment for the benefit of creditors, made in one State, and an attachment of the property of the assignor in the other State, lex rei sitae, or actual situs governs.'* The reason for applying the lex rei sitae or actual situs to movables, is for the protection of citizens of the actual situs of the personalty.^ So in voluntary or involuntary assignments for benefit of creditors, lex rei sitae will govern. Thus, prefer- ences will be denied under a voluntary assignment made in Minnesota for the benefit of creditors, to non-resident pledgees, who hold grain warehouse receipts as security for promissory notes, the grain having its actual situs in Iowa, !Nebraska, and South Dakota, where such pledge was invalid, because the trans- action was governed by lex rei sitae, or actual situs of the grain.® The old fiction, mobUia personam sequntur, has been ren- dered obsolete, as personal property, under certain conditions, has an actual as well as a legal situs.^ 3. Harrison v. Sterry, 5 Cranch (U. S.), 289. 4. Warner v. Jeffray, 96 N. Y. 248, 48 Am. Rep. 616; Green v. Van Buskirk, 5 Wall. (U. S.) 307. 5. Blake v. Williams, 6 Pick. (Mass.) 286, 17 Am. Dee. 372; Taylor v. Boardman, 25 Vt. 581. 6. Swedish-Am. Nat. Bank v. Bank, 89 Minn. 98, 94 N. W. 218. 7. Whar. Conf. L., pp. 297, 305; Westlake Priv. Int. L., p. 172: Sa- vigny, VIII, sec. 366. 476 § 408 OPERATION OF CONTRACTS. Cll. 15 ARTICLE II. Exceptions to the General, Rule. Section 408. Exceptions to General Eule. 409. Selling Intoxicants. 410. Carriers — Stipulation Exempting from Negligence. 411. Interstate Commerce. 412. Sunday Contracts. 413. Gaming — Futures. 414. Smuggling Contracts. 415. Enforcing Revenue Laws of Another Country. 416. Repeal of Statute. 417. Usurious Contracts. 418. Void Usurious Contracts. § 408. Exceptions to general rule. — In general the validity of a contract is to be determined by the law of the place where it is made. If valid there, it is, by the general law of nations, held to be valid everywhere, by the tacit or implied consent of the parties ; if void or illegal there, as a general rule, it is held void and illegal everywhere. The exceptions to this rule as to the validity of contracts is, that contracts which are in evasion or fraud of the laws of a country, or of the rights or duties of its subjects ; which are against good morals, or against religion, or against public rights; and those opposed to the national policy or national institutions; — are declared affected by such considerations though they may be valid by the laws of the place where they are made.^ A contract which has for its object the performance of an act which is prohibited by express stat- 1. Gist V. Tel. Co., 45 S. Car. 344, Brainard, 41 N. H. 25o; Phinney v. 23 S. E. 143, 55 Am. St. Rep. 763 Baldwin, 16 111. 108, 61 Am. Dec. and note; Story on Confl. of L. 242- 62; Chewning v. Johnson, 5 La. 244; Andrews v. Herriot, 4 Cow. Ann. 678, 52 Am. Dec. 610; Rousil- (N. Y.) 508, 510; 2 Kent's Com. Ion v. Rousillon, 14 Ch. D. 351; 457 ; Whitney v. Whitney, 35 N. H. Klinck v. Price, 4 W. Va. 4, 6 Am. 457; Armstrong v. Best, 112 N. Car. Rep. 268; Davis v. Bronson, 6 Iowa, 59, 17 S. E. 14, 25 L. R. A. 188, 34 410; Thatcher v. Morris, 11 N. Y. Am. St. Rep. 473 ; Oscanyan v. 437 ; Flagg v. Baldwin, 38 N. J. Eq. Arms Co., 103 U. S. 261; Bliss v. 219. 476 Ch. 15 INTEBSTATB CONTRACTS. § 408 ute, or the commission of which incurs a penalty is as much, illegal and void as if the statute in express terms had declared it to be so.^ A contract for the sale and delivery of merchandise in a State where such sale is not prohibited, may be sued in another State, where such merchandise cannot be lawfully imported. But if the delivery is to be in a State where the importation is interdicted, then the contract cannot be sued in the interdicting State, because the giving of legal effect to such contract will be repugnant to its rights and interest. And so if a foreign State allows marriages incestuous by the laws of nature, such mar- riage cannot be allowed to have any validity in the United States. But marriages not naturally unlawful, but prohibited by the laws of one State, and not of another, if celebrated where they are not prohibited, will be held valid in a State where they are not allowed.' As stated, a contract valid by the law of the State in which it is made and is to be performed, is valid and enforceable every- where, unless it is clearly contrary to good morals, or repugnant to the policy or positive statute of the jurisdiction in which it is sought to be enforced.* However, if the contract is valid and enforceable where made, yet if it is against the public policy or statute of a State where it is sued upon, the court will not en- force it. Thus, a court will not take jurisdiction of a case to charge a person on an unsigned representation as to the credit of another person, although it is valid where made, if the stat- ute of the State of the forum provides that no suit shall be brought to charge one on such representation, unless it is in writing, signed by the party to be charged thereon.^ 2. Territtv. Bartlett 21 Vt. 184. Railroad Co., 113 Ind. 169, 15 N. 3. Greenwood v. Curtis, 6 Mass. E. 230; Flagg v. Baldwin, 38 N. 358, 378, 4 Am. Dec. 145. J. Eq. 219, 48 Am. Rep. 308; Hyatt 4. Tilden v. Blair, 21 Wal. (U. v. Bank, 8 Bush (Ky.), 193; Mil- S.) 241; Hill V. Spear, 50 N. H. liken v. Pratt, 125 Mass. 374, 28 253, 4 Am. Rep. 205; Wayne County Am. Rep. 241. Sav. Bank v. Low, 81 N. Y. 566; 5. Third Nat. Bank v. Steel, 129 Hawley v. Bibb, 69 Ala. 52; Stix Mich. 434; 88 N. W. 1050, 64 L. V. Matthews, 75 Mo. 96; Burns v. R. A. 119. 477 § 409 OPERATION OF CONTRACTS. Ck 15 § 409. Selling intoxicants. — It would he possible for an in- dependent State to enforce all contracts made and to be per- formed within its territory, without regard to how much they may coutravene the policy of the laws of other States. But no State has adopted this polic}'. As a general proposition, an agreement to break the laws of a foreign country is invalid. On this principle the courts hold a sale invalid when the contract contemplates a design on the part of the purchaser to resell con- trary to the laws of a neighboring State, which is furthered by the vendor.^ It is not enough, however, as generaly held, to prevent a re- covery of the price that the seller had reason to believe that the buyer intended to resell the goods in violation of law.^ So when a sale of intoxicating liquors in another State is made with a view to a breach of the law of another State, it is void.^ The right to contract with a view to a breach of the laws of another State of this Union ought not to be recognized as against a statute passed to carry out fundamental beliefs of right and wrong, shared by a large part of the American people.* 1, Way well v. Reid, 5 Term R. 699; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Fisher v. Lord, 63 N. H. 514, 3 A. 927; Hull V. Ruggles, 56 N. Y. 424. 2. Finch v. Mansfield, 97 Mass. 89; Adams v. Coulliard, 102 Mass. 167; Tracy v. Talmage, 4 Kernan (N. Y.), 162; Hodgson v. Temple, 5 Taunt. 181; Mclnlyre v. Parks, 3 Met. (Mass.) 207; Sortnell v. Hughes, 1 Curtis, C. C. 244; Green V. Collins, 3 Cliff. 494; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205; Dater v. Earl, 3 Gray (Mass.), 482; Compare Suit v. Woodhall, 113 Mass. 391; Pearse v. Brooks, L. R. 1 Exch. 213; Taylor v. Ches- ter, L. R. 4 Q. B. 309, 311. 3. Webster v. Munger, 8 Gray (Mass.), 584; Orcutt v. Nelson, 1 Gray (Mass.), 536; Hubbell v. Flint, 13 Gray (Mass.), 277; Aiken V. Blaisdell, 41 Vt. 655; Banchor V. Mansel, 47 Me. 58; Davis v. Bronson, 6 Iowa, 410; Adams v. Coulliard, 102 Mass. 107; Graves V. Johnson. 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834 and note, 32 Am. St. Rep. 446 and note. 4. Territt v. Bartlett, 21 Vt. 184. See, also, Banchor v. Mansel, 47 Me. 58; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834 and note, 32 Am. St. Rep. 446 and note, Aikens v. Blaisdell, 41 Vt. 655; Compare Brown v. Weiland, 116 Iowa, 711, 89 N". W. 171, 61 L. R. A. 417 and note. 4Y8 Ch. 15 INTERSTATE CONTRACTS. §§ 410, 411 § 410. Carriers — Stipulation exempting from negligence. — The Federal law of this country, bj which stipulations of a common carrier exempting him from the consequences of his own negligence, are held to be extorted without and real assent of the shipper, and to be against public policy, and void, — is controlling, in suits brought here upon instruments made here on board foreign ships, under bills of lading signed by foreign masters, though such stipulations be valid by the law of the ship's country,^ So all stipulations made in this country de- signed to secure, directly or indirectly, the exemption of the car- rier from the consequences of his own negligence, whether the carrier is a domestic or a foreign ship, are equally illegal and void under the Federal law,^ and in the States. But such pro- hibition does not affect a contract made in one State for through shipment of a commodity to another State, when the charter of the carrier so contracting was granted in a third State and prohibited such stipulation.^ The State laws of exempting a carrier from liability are con- trolled by the lex loci celebrationis. In some States such stipu^ lations are valid,* in others they are void.^ But this subject will be treated in another section.® § 411. Interstate commerce. — In shipping merchandise from one State into another, interstate commerce brings the matter under the Federal law. So a citizen of one State has the right 1. Dohen- v. The Etona, 64 Fed. 3. Thomas v. Railroad Co., 63 Rep. 880; Monroe v. The Iowa, 50 Fed. Rep. 200. Fed. Rep. 561; Hathaway v. The 4. O'Regan v. Ciinard, etc. Co., Brantford City, 29 Fed. Rep. 373. 160 Mass. 356, 35 N. E. 1070, 39 2. Phoenix Ins. Co. v. Transp. Am. St. Rep. 484; Hazel v. R. R. Co., 117 U. S. 312, 323, .6 S. Ct. 750, Co., 82 Iowa, 477, 48 N. W. 926. 1176; The Hadji, 22 Blateh. C. C. 5. Brockway v. Express Co., 168 235, 20 Fed. Rep. 875; New Jersey Mass. 257, 47 N. E. 83; Davis v. Steam Nav. Co. v. Bank, 6 How. Railroad Co., 93 Wis. 470, 67 N. (U. S.) 344; Monroe v. The Iowa, W. 16, 1132, 33 L. R. A. 654, 57 50 Fed. Rep. 561 ; Slocura v. Assur- Am. St. Rep. 935. ance Co., 42 Fed. Rep. 23n; Tl;e 6. Sect. 421. This subject is Guildhall, 58 Fed. Rep. 796; Doherr often regulated by statute. V. The Etona, 64 Fed. Rep. 880. 479 §§ 411, 412 OPERATION OF CONTRACTS. Cll. 15 to import beer into another State and sell it there in its original packages ; until sold by the importer it is not subject to State regulations, and a State law which forbids the sale of an im- ported article by the importer, in unbroken packages, is a regu- lation of interstate commerce and void.^ And so a State cannot prohibit a party from selling in its territory, by contract made there, his machinery manufactured in another State.^ But a statute prohibiting the manufacture or sale of intoxi- cating liquors, even for exportation, and prohibiting also the sale of imported foreign intoxicating liquor, unless in its orig- inal packages, is not in conflict with interstate commerce.^ Such contract being prohibited by tlie law of the State where made, is illegal and void there, and its invalidity constitutes a good defense in an action upon the contract in another State.'* Sending lottery tickets from one State to another is inter- state commerce and can be controlled by Congress.^ § 412. Sunday contracts. — Statutes against the performance of labor on Sunday do not invalidate a contract made in a State for labor to be performed on Sunday wholly outside of the State.* So a vendor of personal property when sued upon his war- ranty, cannot defend upon the ground that the sale was made on Sunday, if the sale occurred in a State where there was no law prohibiting the enforcement of Sunday contracts.' If the statute declares such contracts void, a note made and delivered in a State on Sunday is void, although payable in another State.^ But a contract made on Sunday in a State 1. Leisy v. Hardin, 135 U. S. 100, 5. Champion v. Ames, 188 U. S. 10 S. Ct. 681. 321, 23 S. Ct. 311, 26 Nat. Cor. Rep. 2. Cooper Manuf. Co. v. Fergu- 74. son, 113 U. S. 727, 5 S. Ct. 739. 6. Said v. Strowberg, 55 Mo. 3. Pearson v. Distillery Co., 72 App. 438. Iowa, 348, 34 N. W. 1 ; Kidd v. 7. McKee v. Jones, 67 Miss. 405. Pearson, 128 U. S. 1, 9 S. Ct. 6; 7 So. 348. Tredway v. Riley, 32 Neb. 495, 49 8. Arbuckle v. Reaume, 96 Mich. N. W. 268, 29 Am. St. Rep. 447. 243, 55 N. W. 808. 4. Tredway v. Riley, 32 Neb. 495, 49 N. W. 268. 480 Ch. 15 INTERSTATE CONTRACTS. §§ 412,413 where it is valid is not against good morals and can be enforced in any State,^ wliore the statute does not prohibit. § 413. Gaming — Futures. — Option contracts are generally held void. But a contract for the future delivery of commodi- ties, made in a State and to be performed there for a principal residing in another State, is governed by the laws where it is made, and if valid there it will be enforced in any other State,^ unless prohibited by statute.^ So commercial paper executed and issued in 'New York in the course of speculation in cotton options in tliat State, will be enforced in Indiana in the hands of an innocent holder, neither the statutes of either State de- claring such paper void in the hands of such holder.^ It is an unwarranted perversion of speech to hold that the consideration of a note which has been executed to obtain money with which to purchase options, or to put up as margins in speculations, is money won by playing at a game or by betting on the hands of others who do play, or to repay money lent at the time and place of such play. However, much dealings in options may resemble gambling or betting, and demoralizing and pernicious as it may be, it cannot, with any degree of pro- priety, be said to be winning or losing money by playing at or betting upon any game, within the meaning of the statute.* So statutes involving penal consequences cannot be extended by construction so as to include acts not in terms forbidden, merely because of their resemblance to the acts prohibited, or because they may be equally demoralizing and injurious.^ 9. Swann v. Swann, 21 Fed. Rep. 514, 14 So. 33; Gist v. Tel. Co., 45 299; Adams v. Gay, 19 Vt. 358; S. Car. 344, 23 S. E. 143, 55 Am. Brown v. Browning, 15 K. I. 422, St. Rep. 763 and note. 7 A. 403, 2 Am. St; Rep. 208; 3. Sondheim v. Gilbert, 117 Ind. O'Rourke v. O'Rourke, 43 Mich. 71, 18 N. E. 687, 10 Am. St. Rep. 58, 4 N. 531; Compare Gauthier v. 23 and note, 5 L. R. A. 432. Cole, 17 Fed. Rep. 716. 4. White v. Barber, 123 U. S. 1. Lehman v. Feld, 37 Fed. Rep. 392, 8 S. Ct. 221. 852; Ward v. Vosburgh, 31 Fed. 5. Shaw v. Clark, 49 Mich. 384, Rep. 12. 43 Am. Rep. 474. 2. Lemonius v. Mayer, 71 Miss. 481 § 413 OPEBATION 0¥ CONTRACTS. Ch. li> Hence, an option contract may be enforced in another State, where there is no statute prohibiting such contracts, either in the State of its inception or in the State where suit is brought to enforce it; it is not a gaxning contract.^ If the consideration of a contract is a gaming debt, or the sale of lottery tickets, the validity depends upon the law of the situs of the consideration, which may not be the lex loci celebrationis or the lex loci solutionis^ Hence, the validity of a note made in one State and payable there, given in consideration of liquor sold and delivered to the maker of the note in another State, will be determined by the law of the latter State, so far as the sale of the liquor affects it. The law of the place where the liquor is sold will govern the validity of the sale and the validity of the contract for the price. If the sale was invalid at the place where made, then the note is invalid.* If the sale is valid there, then the note is valid, though the sale would have been invalid if made where the note was executed or where it was to be paid.® In such case the lex celebrationis and the lex solutionis of the note had noth- ing to do with the matter as the sale was legal where made. So the validity of a contract, the consideration of which is the sale of a slave, will depend on the law of the place of sale, the lex loci considerationis}^ But where a note was given to settle a gambling debt, and valid in the hands of an innocent holder in ITew York, the inno- cent holder cannot enforce payment in Illinois, where a stat- ute prohibits such contracts." 6. Sondheim v. Gilbert, 117 Ind. 9. Webber v. Howe, 36 Mich. 150, 71, 18 N. E. 687, 5 L. R. A. 432, 10 24 Am. Rep. 590; Fred Hiller Brew- Am. St. Rep. 23 and note. ing Co. v. De France, 90 Iowa, 395, 7. Peet V. Hatcher, 112 Ala. 514, 57 N. W. 959. 21 So. 711, 57 Am. St. Rep. 45; Me- 10. Boundtree v. Baker. 52 111. Intyre v. Parks, 3 Met. (Mass.) 241, 4 Am. Rep. 597. 207. 11. Pope V. Hanke, 155 111. 617, 8. Dolan v. Green. 110 Mass. 40 N. E. 839, 28 L. R. A. 568. 322. 482 CL. 15 INTERSTATE CONTRACTS. §§ 414-416 § 414. Smuggling contracts. — ^A contract made in another nation to smuggle dutiable goods into the United States, will be treated as void by our courts/^ if the vendor knows of the intention of the vendee, and packs them up and marks them in a manner convenient for that purpose, he is equally guilty and the contract cannot be enforced.^^ But if the vendor has only a mere knowledge of the intention of the vendee to smuggle the goods, and does not combine with the purchaser in act or intent, he can then collect the price." § 415. Enforcing revenue laws of another country. — ^o nation is bound to recognize or enforce contracts of another nation. Hence, when contracts which violate the revenue laws of a country where made, come before the courts of another nation, these courts will not take notice of the foreign revenue laws.^ So a contract which violates such laws may be enforced in another jurisdiction.^ But when the contract is void where made, because not stamped, it is void in every country where an action is brought to enforce it.^ The rule should be that though the parties bargain in one country to violate the revenue laws of another, if the contract is not otherwise immoral or against public policy, it will be enforced in the place of its inception.'* § 416. Repeal of statute. — A subsequent repeal of a statute can have no effect upon a contract made while it was in force.^ 12. Armstrong V. Toler, 11 Wheat 241, 243; Clegg v. Levj% 3 Camp. (U. S.) 258; Holman v. Johnson, 106; Bristow v. Sequeville, 5 Exch. Cowp. 341; Cambioso v. Maflfet, 2 27;). See Ludlow v. Van Rensse- Wash. C. C. 98. \aer, 1 Johns. 94. 13. Waymell v. Reed, 5 Term R. 4. Armendiaz v. Serna, 40 Tex. 599; Tracy v. Talmage, 14 N. Y. 291; Merchants' Bank v. Spalding. 162, 67 Am. Dec. 132 and note. 5 Selden (N. Y.), 53; Kohn v. The 14. Holman v. Johnson, Cowp. Renaisance, 5 La. Ann. 25, 52 Am. 341. Dee. 577; Compare Graves v. John- 1. Ivey V. Lelland, 42 Miss. 444, son, 156 Mass. 211, 30 N. E. 818, 2 Am. Rep. 606. 15 L. R. A. 834 and note. 32 Am. 2. Kohn V. The Renaisance, 5 St. Rep. 446 and note. La. Ann. 25, 52 Am. Dec. 577. 5. Lemonius v. Mayer, 71 Miss. 3. Alves V. Hodgson, 7 Term R. 483 §§ 416, 417 OPERATION OF CONTRAOTS. Ch. 1 5 The repeal of a law by the enactment of another statute will not give validity to a contract, if it was void under the old law.® The validity of a contract must be determined by the statute in force at the time it is made ; if it is valid when made, a sub- sequent change or repeal of the law cannot impair its validity ; and if it is void when made, no subsequent law can import to it validity.^ A subsequent law cannot affect the validity of a previous contract, which was void at its inception.^ Nor can the change of a law render invalid a contract which was valid at its inception.^ § 417. Usurious contracts. — Persons making contracts for the payment of interest may contract to pay either at the rate of the place of contract or at the place of performance. The fact that the rate of the place at which it is agreed that it shall be paid is higher than the rate in the other place will not ex- pose the transaction to the imputation of usury, unless the place agreed on was fixed for the purpose of obtaining the higher rate, and to evade the penalty of the usurious contract at the other place.^ So a bond executed and delivered in one State, but made payable in another, is governed, as to the objection of usury, by the laws of the latter State.^ Where the parties agree that a note shall operate, the law of that place will control as to usury, though inadvertently dated and made payable in an- other State.^ So where a proposition to lend money was ac- cepted by the lender in another State where he resided, and 514, 14 So. 33; Hathaway v. Mo- A. 466, 16 Am. St. Rep. 695; Gilli- ran, 44 Me. 67. land v. Phillips, 1 S. Car. 152. 6. Milne v. Huber, 3 McLean, 9. Boyee v. Tabb, 18 Wall. (U. C. C. 212; McKissick v. Mcl^ssick, S.) 546. 6 Humph. (Tenn.) 75. 1. Miller v. Tiffany, 1 Wall. (U. 7. Wright V. Boiling, 27 Ala. S.) 298; Sturdivant v. Bank, 60 259; Robinson v. Barrows, 48 Me. Fed. Rep. 730. 186; Anding v. Levy, 57 Miss. 51, 2. Building and Loan Asso. v. 34 Am. Rep. 435 and note. Logan, 66 Fed. Rep. 827. 8. Handy v. Publishing Co., 41 3. Bank v. Mann, 94 Tenn. 17, Minn. 188, 42 N. W. 872, 4 L. R. 27 N. W. 1015, 27 L. R. A. 565 and note. 484 Ch. 15 INTERSTATE CONTBACTS. § 417 where the contract was made by its terms to be performed, the contract is governed by the laws of that State.* So a judgment rendered in a State on an obligation made and entered into in another State, bears interest according to the law of the State where the judgment is rendered.^ The intention to charge usurious interest is an essential ele- ment of usury.^ So a contract will be sustained if possible. If the interest be higher at the lex loci celebrationis than at the lex loci solutionis, the parties may contract for the higher in- terest,^ if the statute at the place of making does not prohibit such contract at the domicil of the parties, which is the place of contract.^ Under this rule, when not prohibited by statute, the courts will sustain the contract, if secured by mortgage on land where the higher rate is legal,® though this rule is not adopted in all the States.^" And so it has been held that the contract shall be sustained if the rate of interest is legal in the State where the money is to be used.^^ However, this is not the law in other States.^2 Several courts hold that the lex solutionis governs as to usury." The weight of authority is that the law of the place 4. Bank v. Gibson, 60 Ark. 269, 505, 18 S. E. 131; American Free- 30 S. W. 39. hold, etc. Mortg. Co. v. Jefferson, 5. Neil V. Bank, 50 Ohio St. 193, 69 Miss. 770, 12 So. 464, 30 Am. 33 N. E. 720. St. Rep. 587. 6. Balfour v. Davis, 14 Oreg. 47, 11. Kellogg v. Miller, 13 Fed. 12 P. 89. Rep. 198; Scott v. Perlee, 39 Ohio 7. Miller v. Tiffany, 1 Wall. (U. St. 81. S.) 298; Cromwell v. County of 12. Central Trust Co. v. Burton, Sac, 96 U. S. 51. 74 Wis. 329, 43 N. W. 141. 8. See Kurd's 111. Stat. 1903, Ch. 13. Dickinson v. Edwards, 77 74, sec. 8. N. Y. 573, 33 Am. St. Rep. 671; 9. Dugan v. Lewis, 79 Tex. 246, National, etc. Asso. v. Askworth, 14 S. W. 1024, 23 Am. St. Rep. 91 Va. 726, 22 S. E. 521; Pioneer 332; Arnold v. Potter, 22 Iowa, Saving, etc. Co. v. Cannon, 96 Tenn. 195; Jackson v. Mortg. Co., 88 Ga. 599, 36 S. W. 386, 54 Am. St. Rep. 756, 15 S. E. 812. 858; Freese v. Brownell, 35 N. J. 10. Odom V. Mortg. Co., 91 Ga. L. 285, 10 Am. Rep. 239. 485 §§ 417-419 OPEEATION 0¥ CONTEACTS. Ch. 15 where the money is loaned governs as to the question of usury ; that is the lex considerationis controls." The question of usury is governed by the situs of the land mortgaged, where the money is loaned by a foreign corporation who also has a situs in the State where the land is situated, and where the money is actually loaned, but notes are payable at the principal situs of the foreign corporation.^^ § 418. Void usurious contracts. — A note being void at the place of the contract on account of usury, is void everywhere and will not be enforced f- and this is so though the same con- tract had been made in another State where it is sued upon, would have been valid if made in the latter State. Because if a contract is void in its inception it does not exist.^ AETICLE III. Enforcement of Contkact. Section 419. Interpretation of Contract. 420. Agreement as to What Law Shall Govern. 421. Common Carriers — Contract of Aflfreighment. 422. Alien Labor Acts. § 419. Interpretation of contract. — Much of the seeming conflict in the adjudications upon the subject of the lex loci contractus will disappear by carefully discriminating as to the precise nature of the issue and matter under consideration. Matters bearing upon the execution, interpretation, and valid- 14. DeWolf V. Johnson, 10 15. National B. & L. Asso. v. Wheat. (U. S.) 367; Akro v. De- Brahan, 80 Miss. 407, 31 So. 840, mond, 103 Mass. 318; Bennett v. 57 L. R. A. 793. Asso., 177 Pa. St. 233, 35 A. 684, 1. McGarry v. Nicklin, 110 Ala. 55 Am. St. Rep. 723; Watson v. 559, 17 So. 726, 55 Am. St. Rep. 40 Lane, 52 N. J. L. 550, 20 A. and note. 894; National B. & L. Asso. v. 2. McAllister v. Smith, 17 lU. Brahan, 80 Miss. 407, 31 So. 840, 328, 65 Am. Dec. 651; Yerger v. 57 L. R. A. 793, Raines, 4 Humph. (Tenn.) 259. 486 Ch. 15 INTERSTATE CONTBACTS. § 419 ity of a contract are determined by the law of the place where it is made. Matters connected with its performance are regu- lated by the law prevailing at the place of performance. Mat- ters respecting the remedy depend upun the law of the place where the suit is brought.^ The lex loci regulates the right under a foreign contract, and the lex fori gives the remedy.^ A contract will be presumed to have been made in the State in which suit is brought, unless the contrary is made to appear.^ And when made in one State to be performed in another, the general rule is that it will be governed by the laws of the State where it is to be performed.* In considering a contract five incidents must be considered: 1, The validity of the contract ; 2, the effect ; 3, the interpreta- tion ; 4, the discharge ; 5, the remedy for its breach. These incidents relate (a) to the making; (b) to the performance of the contract; (c) to the consideration; (d) to the intention of the parties, express or implied ; (e) to the law controling the parties irrespective of intention. Everything relating to the mak- ing of the contract is to be governed by the lex loci contractus ; everything relating to the performance is governed by the lex loci solutionis; and everything relating to the validity of the consideration is governed by the lex loci considerationis, or 1. Scudder v. Bank, 91 U. S. 4. National Mut. Build. & L. 406. Asso. V. Ashworth, 91 Va. 706, 22 2. Denny v. Faulkner, 22 Kan. S. E. 521; Andrews v. Pond, 13 89; Laird v. Hodges, 26 Ark. 356; Pet. (U. S.) 65; Coghlan v. Rail- Partee v. Silliaman, 44 Miss. 272; road Co., 142 U. S. 101, 12 S. Ct. Broadhead v. Noyes, 9 Mo. 56; Don 150; Fear v. Bartlett, 81 Md. 435, V. Lippman, 5 Clark & F. 1; Sco- 32 A. 322, 33 L. R. A. 721 and note; ville V. Canfield, 14 Johns. (N. Meroney v. Asso., 116 N. Car. 882, Y.) 338, 7 Am. Dec. 469; Mineral 21 S. E. 924, 47 Am. St. Rep. 841; Point Railroad v. Barron, 83 111. Wick v. Dawson, 42 W. Va. 43, 24 365. S. E. 587; Roberts v. Ins. Co., 118 3. Baltimore, etc. R. R. Co. v. N. Car. 429, 24 S. E. 780; Tilling- Scholes, 14 Ind. App. 524, 43 N. hast v. Lumber Co., 39 S. Car. 484, E. 156, 56 Am. St. Rep. 307 and 18 S. E. 120, 22 L. R. A. 49. note; Latham v. De Loeselle, 3 App. Div. 525, 38 N. Y. S. 270. 487 §§ 419, 420 OPEKATION OF CONTKACTS. Ch. 15 situs of the consideration.^ But the place of contract is not necessarily one place. It is the law of all the places at which and for the purpose for which it has reference. Thus, a bill of exchange is to be construed according to the law of such place at which the contract contemplated that something is to be done bj either of the parties.^ If in case of a sealed contract the question as to the form of the remedy, the lex fori determines.^ But if the question is as to the effect and obligation of the contract, the lex loci con- tractus will govern.^ Whether the remedy shall be at law or in equity, in perso- nam or in rem, is governed by the lex loci} Where an action is barred by the statute of limitations where suit is brought, and such judgment is final, thereby extinguish- ing the cause of action, no suit can be brought in another juris- diction ; otherwise if the cause of action is not extinguished. ^° § 420. Agreement as to what law shall govern. — When parties living in different States execute a contract in one, or partly in one and partly in the other, and it is to be performed in the other, it is often a matter of great difficulty to decide by the law of which State the contract is to be construed, and its validity determined. Parties may avoid, when making such contracts, such questions by agreeing for themselves where the contract shall be performed.^ 5. Skudder v. Bank, 91 U. S. etc. Ins. Co. v. Aitkins, 125 N. Y. 406. 666, 26 N. E. 732; Drake v. Rice, 6. Hibernia JSTat. Bank v. La- 130 Mass. 419. combe, 84 N. Y. 367. 10. Brand v. Brand (Ky.), 63 7. Pritchard v. Norton, 106 U. L. R. A. 206. See "Conflict of S. 124, 1 S. Ct. 102; LeRoy v. Laws: Substance or Obligation of Beard, 8 How. (U. S.) 451. Contract Distinguished from Rem- 8. Pritchard v. Norton, 106 U. edy."— 16 Harv. L.. Review, 262. S. 124, 1 S. Ct. 102. 1. Smith v. Parsons, 55 Minn. 9. Burchard v. Dimbar, 82 111. 520, 57 N. W. 311; Penn. Mut. L. 450, 25 Am. Rep. 334; Ruhe v. Ins. Co. v. Trust Co., 72 Fed. Rep. Buck, 124 Mo. 178, 27 S. W. 412, 413, 38 L. R. A. 33 and note, 19 25 L. R. A. 178 and note, 46 Am. C. C. A. 286, 37 U. S. App. 692. St. Rep. 439 and note; New York, 488 Cll. 15 INTERSTATE CONTRACTS. § 420 The nile upon the subject of construction is well settled that contracts are to be construed according to the laws of the State whore made, unless it is presumed from their tenor that they were entered into with a view to the laws of some other State.^ A court having before it a contract made between parties living under different systems of laws, is not bound, as a mat- ter of law, to apply either the lex loci solutionis or the lex loci contractus ; the question is what law the parties intended to govern the contract.^ The presumption that the lex loci con- tractus or lex loci solutionis governed the contract may be dis- placed by other terms of the contract or circumstances of the case showing the intention.^ Hence, a life insurance policy issued in Pennsylvania which contains a stipulation that it is a contract made to be executed in the State of H^&w York, and shall be construed only according to the laws of that State, will be construed as though actually executed and delivered in ISTew York.^ The weight of authority is that where parties make a contract of loan in one State to be performed in another they may, acting in good faith and without intent to evade the law, agree that the law of either State shall control.^ The law of the place where a contract is made governs its nature, obligation and interpretation, unless it appears that the parties, when entering into the contract, intended to be bound by the law of some other country.''^ But it is a diflScult question sometimes to ascertain where the situs of the contract is. The situs of the remedy when the parties are in different States, the situs of the performance, and 2. Hale v. Steam Nav. Co., 15 7. Cox v. United States, 6 Pet. Conn. 538, 546. (U. S.) 172; Scudder v. Bank, 91 3. Hamlyn v. Talisker Distillery U. S. 406 ; Pritchard v. Norton, 106 (1899), App. Cas. 202. U. S. 124, 1 S. Ct. 102; Lamar v. 4. Jacobs V. Lyonnais, 12 Q. B. Micou, 114 U. S. 218, 5 S. Ct. 857; Div. 589, 600. ■ Watts v. Camors, 115 U. S. 353, 5. Greesemer v. Ins. Co., 10 362, 6 S. Ct. 91 ; Liverpool Steam Wash. 202, 38 P. 1007. Co. v. Ins. Co., 129 U. S. 397. 9 6. Robinson v. Bland, 2 Burr. S. Ct. 469; Pope v. Nickerson, 3 1077; Miller v. Titiany. 1 Wall. Story, C. C. 465, 484, 485. (U. S.) 298. 489 § 420 OPERATION OF CONTRACTS. CTl. 15 the situs of the consideration of the contract enter into the inter- pretation. If the situs of the making an executory contract, the performance and the consideration are the same, then the situs of the contract is at once determined. But when these elements are dissociated and the situs of the contract is no longer single and indivisible, then the difficulty arises, and the courts are in conflict as to the situs of these elements. The definitions of the lex loci contractus may be resolved in- to three classes : 1. The lav^^s of the place where a contract is made must gov- ern the performance of its terms and conditions. But when it is to be performed in a different place, and under a different jurisdiction from that where it was entered into, then the law of the place of performance must govern. This makes the situs of the performance the locus contractus, though the contract was formed in another jurisdiction.^ 2. The validity, the nature, the interpretation, and the obli- gation of contracts are governed by the lex loci contractus, the law of the place where the contract is made.® This makes the situs of the lex loci celebrationis, the place of making of the contract, the locus contractus, though the contract is to be per- foormed in another jurisdiction, 3. The lex loci contractus is the law with reference to which the parties contracted ; or the law which the parties had in mind when they made the contract ; or the law which the parties in- tended should control the contract.^® 8. Lewis V. Headley, 36 111. 433, Taylor v. Sharp, 108 N. Car. 377, 87 Am. Dec. 27; Equitable Life 13 S. E. 138; Ivey v. Lelland, 42 Assur. Soc. V. Frommbold, 75 111. Miss. 444, 97 Am. Dec. 475; Lind- App. 43; Dickinson v. Edwards, 77 say v. Hill, 66 Me. 212. N. Y. 573, 33 Am. Rep. 671; The 10. Jacobs v. Credit Lyonnais, Bradford City, 29 Fed. Rep. 373; 12 Q. B. D. 589; Lloyd v. Guibert, Compare Mutual L. Ins. Co. v. L. R. 1 Q. B. 122; Liverpool Steam Cohen, 179 U. S. 262, 21 S. Ct. Co. v. Ins. Co., 129 U. S. 327, 9 106. S Ct. 469; Hall v. Cordell, 142 U. 9. Milliken v. Pratt, 125 Mass. S. 116, 12 S. Ct. 154; New Eng- 374, 28 Am. Rep. 241; Commercial land Mortg. Co. v. McLaughlin, 87 Bank v. Davidson, 18 Oreg. 57; Ga. 1, 13 S. E. 81; Thornton v. 49a Cll. 15 INTEKSTATE CONTKACTS. § 420 In these three divisions it is considered the locus contractus, or the situs of the contract, a single and indivisible unit to be determined by the application of a single general rule. A better rule is, that the validity of the contract is to be de- termined by the lex loci contractus, and the intention of the parties governs only in the construction; that is, the lex loci contractus determines its validity and not the place of the in- tention/^ In many cases the element of dispute v^^ill not altogether de- pend on the intention of the parties, but in part on the law and public policy, which the intent of the parties cannot set aside. So the maxim " modus et conventio legem vincunt " cannot apply. If the terms of a written contract do not indicate the inten- tion of the parties as to the place of performance, then there is a prima facie presumption that the contract is to be performed in the State in which it is made. Thus, A employed B to super- intend a factory in Kentucky, for two years, the written con- tract not stating the place of performance. Before the two years had expired, A moved the factory to Indiana ; B refused to superintend the factory in the latter State and sued A for breach of contract, and the court held that it was the prima facie presumption that the contract was to be pereformed in Kentucky.^^ This presumption may or may not give effect to the intention of the parties ; the difficulty can be met more sat- isfactorily by holding directly that such contract will be con- strued according to the law of the jurisdiction in which it was made.-^^ Such a presumption originated with those courts which hold that a contract must be construced according to the law of the jurisdiction in which it is to be performed.-^* Dean, 19 S. Car. 583, 45 Am. Rep. 12. Cook v. Todd, 72 S. W. 779, 796; Bell v. Packard, 69 Me. 105, 24 Ky. L. Rep. 1909. 31 Am. Rep. 251. 13. Mittenthal v. Mascagni, 183 11. American Mortg. Co. v. Mass. 19, 66 N. E. 425, 60 L. R. A. Sewall, 92 Ala. 163, 9 So. 143, 13 812. 97 Am. Rep. 404. L. R. A. 299. 14. Lewis v. Hadley, 36 111. 433, 87 Am. Dec. 227; Equitable L. 491 §§ 420, 421 OPERATION OF CONTKACTS. Cll. 15 It would seem that the use of this presumption to determine the substantial rights of the parties is not sound law. § 421. Common carriers — Contract of affreightment. — The general rule is that the nature, the obligation and the inter- pretation of a contract are to be governed bj the law of the place where it is made, unless the parties at the time of mak- ing it have some other law in view; and this rule requires a contract of affreightment, made in one country between citi- zens or residents thereof, and the performance of which being there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country.^ Hence, a contract of affreightment, made in an American port by an American shipper with an EnglisE steamship company doing business in such port, for the^ ship- ment of goods there and their carriage to and delivery in Eng- land, where the freight is payable in English currency, is an American contract, and governed by American law.^ When the contract is to be completed in a continuous act, the per- formance of which may run through several States, it is an entire contract and not divisible. But there are cases which hold that parts of the contract is completed before the distance is covered and the goods delivered.^ But the better rule is that the contract is continuous, and can have only one place of per- Asur. Soc. V. Frommbold, 75 111. 2. Liverpool Steam Co. v. Ins. App. 43; DeSobry v. DeLalstre, 2 Co., 129 U. S. 397, 9 S. Ct. 469; H. & J. (Md.) 191, 3 Am. Dec. 535; The Carib Prince, 63 Fed. Kep. Compare Mutual L. Ins. Co. v. 266. Cohn, 179 U. S. 262, 21 S. Ct. 106. 3. Burnett v. Railroad Co., 176 1. Liverpool Steam Co. v. Ins. Pa. St. 45, 34 A. 972; Barter v. Co., 129 U. S. 397, 9 S. Ct. 469; Wheeler, 49 N. H. 9, 6 Am. Rep. Pennsylvania Co. v. Fairchild, 69 434; Talbott v. Trans. Co., 41 Iowa, 111. 260; Brown v. Railroad Co., 83 247, 20 Am. Rep. 589; Curtis v. Pa. St. 316; Curtis v. Railroad Co., R. R. Co., 74 N. Y. 116, 30 Am. 74 N. Y. 116, 30 Am. Rep. 271; Rep. 271. Compare Barter v. Wheeler, 49 N. H. 929, 6 Am. Rep. 434. 492 CJb. 15 INTERSTATE CONTRACTS. §§ 421, 422 formance/ otherwise the carrier may be subject to different liabilities. The lex celebrationis governs as to the validity of stipulations in bills of lading.'' And so the question whether a carrier may exempt himself, by public notice as insurer, is governed by the lex celebrationis,^ and he may limit his common law liabality, if the contract be valid at the lex celebrationis? And the rule applies as to the exemption from liability of a telegraph com- pany.^ But a contract of a telegraph company made where damages are not allowed for mental suffering for non-delivery of message on time, will not prevent a recovery of such dam- ages in a State where such neglect is a public offense, subjecting the company to liability for the injuries thereby caused, and whose courts permit the consideration of mental anguish in fixing the damages.^ And where the public policy of a State forbids the limitation of a carrier's liability, a contract of limitation will not be enforced as to property negligently in- jured within the State while being shipped on a through bill of lading into the State, where the contract was made and where it is valid.^° § 422. Alien labor acts. — The alien labor acts prohibit the contracting for non-resident aliens in a foreign country to per- form labor in the United States, the contract being entered into in the foreign State. In cases founded upon these acts, the vital element of the offense is the making of a contract in a for- eign country with the non-resident alien previous to the immi- 4. Liverpool Steam Co. v. Ins. Cotton Mills, 81 Ga. 522, 7 S. E. Co., 129 U. S. 397, 9 S. Ct. 469. 916, 2 L. R. A. 102 and note. 5. Hazel v. Railroad Co., 82 8. Reed v. Tel. Co., 135 Mo. 661, Iowa, 477, 48 N. W. 926; Davis v. 37 S. W. 904, 34 L. R. A. 492, 58 Railroad Co., 93 Wis. 470, 67 N. Am. St. Rep. 69. This matter is W. 16, 1132, 33 L. R. A. 654, 57 generally regulated by statute. Am. St. Rep. 935. 9. Gray v. Tel. Co., 108 Tenn. 6. Hale v. Navigation Co., 15 39, 64 S. W. 1063, 56 L. R. A. 301, Conn. 539, 39 Am. Dec. 398. 91 Am. St. Rep. 706 and note. 7. Western, etc. Railroad Co. v. 10. Hughes v. Pcnn. R. R. Co., 202 Pa. St. 222, 63 L. R. A. 513. 493 § 422 OPERATION OF CONTRACTS. CTl. 15 gration or importation of such alien into the United States to perform labor or service in this country, and in pursuance of which such non-resident alien comes to the United States and enters upon the performance of the contract. The character of the act is made to depend upon the locality of the execution of the prohibited contract. It is perfectly lawful, notwith- standing the alien labor acts, to contract with an alien within the jurisdiction of the United States.^ 1. United States v. Craig, 28 Rep. 91, 1 C. C. A. 49, 4 U. S. App Fed. Rep. 795; United States v. 41. Edgar, 45 Fed Rep. 44, 48 Fed. 494 CHAPTER XVI. Implied Contracts. ARTICLE I. By Acts of the Parties. Section 423. Tolls. 424. Railway's Implied Contract to Send Baggage on Same Train with Passenger. 425. Gifts. 426. Impairing the Obligations of Contracts. 427. Fraud and Mistake. 428. Pass-Book — Writing Up. 429. Burden of Proof. § 423. Preliminary — Tolls. — The subject of implied con- tracts covers a large field of the law. In an express contract the expression of agreement may be in writing, or by words, or by signs. But when a contract arises by a course of conduct, it is an implied contract. An implied contract can exist only when there is no express contract concerning the same subject matter. Thus, if A makes an express contract with B to per- form services for C, C is not liable on the implied contract because he received the benefit. The two contracts cannot ex- ist together governing the same transaction. There cannot be an express and an implied contract for the same thing, exist- ing at the same time. It is only when parties do not expressly agree that the law interposes and raises a promise. Only a few of these contracts can be given within the scope of this work. The first will be the implied contract arising with case of tolls. Assumpsit lies for tolls due for passing upon a turnpike road. The law implies a promise to pay, notwithstanding the party 495 §§ 423, 424 OPEEATION OF CONTEACTS. Ch. 16 using the road denies his liability and refuses payment. His denying his liability and refusing to pay does not change the irule;^ and this is so even where the statute has provided a penalty.^ Because whatever the law orders one to pay, that be- comes instantly a debt, which he has beforehand contracted to pay.2 So an action on an implied promise will lie to recover legal tolls for the use of a turnpike or other roads where tolls are legally collectible,* although the defendant has always claimed exemption from such tolls.^ § 424, Railway company's implied contract to send bag- gage on same train with passenger. — A railway company im- pliedly undertakes that the baggage of a passenger duly checked shall go upon the same train on which he takes pas- sage, unless he gives some direction, does something or omits to do something which authorizes the carrier to send the bag- gage by another train. ^ So where a carrier without sufficient reason, fails to ship the baggage of a passenger upon the same train with the passenger, he is liable for its destruction upon another and later train.^ On the other hand, it has been held that a trunk duly checked, implies that the owner is a pas- senger, and if there be no passenger and the trunk is lost, the railroad comnany can be held only as a gratuitous bailee, and 1. Proprietors v. Taylor, 6 N. 6. Wilson v. Railroad Co., 56 H. 499; Newport v. Saunders, 3 Me. 60, 96 Am. Dec. 435, 57 Me. Barn. & Adol. 411; Morris v. Bur- 138, 2 Am. Rep. 26; Fairfax v. dett, 1 Camp. 222. Railroad Co., 73 N. Y. 167, 29 Am. 2. New Albany, etc. Co. v. Lewis, Rep. 119; Toledo, etc. R. R. Co. v. 49 Ind. 161; Central Bridge Corpo. Tapp, 6 Ind. App. 304, 33 N. E. V. Abbott, 4 Cush. (Mass.) 473. 462; Wald v. Railroad Co., 162 111. 3. 3 Bl. Com. 160; Bowen v. 545, 44 N. E. 888, 35 L. R. A. 356, Hoxie, 137 Mass. 527; Gray v. Ben- 53 Am. St. Rep. 332. nett, 3 Met. (Mass.) 522. 7. Wald v. Railroad Co., 1(;2 111. 4. New Albany, etc. Co. v. Lewis, 545, 44 N. E. 888, 35 L. R. A. 356, 49 Ind. 161. 53 Am. St. Rep. 332. 5. Central Bridge Corpo. v. Ab- bott, 4 Cush. (Mass.) 473. 496 Ch. 16 IMPLIED CONTKACTS. §§ 424-426 was not responsible in the absence of gross negligence ; because baggage implies a passenger who intends to go upon the train and receive it upon the arrival of the train at the end of the journey.* § 425. Gifts. — A gift of chattel, accompanied by delivery, is valid and irrevocable, and there is no implied contract that the donor may revoke it.^ Delivery is essential, both at law and in equity ; but when the article is once delivered the gift is per- fect.^" And so where a gift is made, the subsequent execution of a will by the donor does not operate to make void the gift, even though the property may fall within the provisions of the will." And if in a transaction, where chattels are delivered, if in- tended by the parties to be a gift, the law implies no agreement to pay for them, and there is no sale.^^ § 426. Impairing the obligation of contract. — ^An appoint- ment to a public office is not a contract within the clause of the Federal Coonstitution,^ which forbids the State to pass any law impairing the obligation of contract. The design of that clause was to restrain the legislature from violating the right to property. But as an appointment or election to office is not such a contract, it is not within the prohibition of the Con- stitution.^ 8. Marshall v. Railroad Co., 126 11. Sanborn v. Goodhue, 28 N. Mich. 45, 85 N. W. 242; Compare II. 48, 59 Am. Dec. 398. The Elvira Harbeck, 2 Blatch. 12. Keiser v. State, 82 Ind. 379; 336; Wilson v. Railroad Co., 56 French v. Smith, 58 N. H. 323; Me. 60, 96 Am. Dec. 435, 57 Me. Whaley v. Peak, 49 Mo. 80; Osier 138, 2 Am. Rep. 26. v. Hobbs, 33 Ark. 215; Watson, v. 9. Sanborn v. Goodhue, 28 N. Ledoux, 8 La. Ann. 68, 28 Am. Dec. H. 48, 59 Am. Dec. 398; Smith v. 129. See, also, Safety Deposit L. Smith, 7 Car. & P. 401 ; Marston v. Ins. Co. v. Smith, 65 111. 309. Marston, 20 N. H. 573. 1. Article 1, sec. 10, subd. 1. 10. Cook v.Husted, 12 Johns. (N. 2. Dartmouth College v. Wood- Y.) 188; Marston v. Marston, 20 ward, 4 Wheat. 518, 627, 630; Ho- N. H. 573. boken v. Gear, 40 Miss. 265; Hall State, 39 Wis. 79. 497 §§ 426, 427 OPERATION OF CONTEACTS. Ch. 16 The prospective salary or other emoluments of a public officer are not the property of the office nor the property of the State. They are not property at all.^ A person holding an office ousted by the legislature, has no vested right in it; but the legislature may at any time destroy it,* when the tenure of the office is not fixed by the Consti- tution.^ The tenure and salary of a public officer, except when otherwise provided by the Constitution, are dependent upon legislation.^ § 427. Fraud and mistake. — After an account stated has been accepted it can only be defeated by showing fraud or mistake. A stated account may be impeached either wholly or in part on the ground of fraud or mistake. If there be fraud or if any mistake affects the whole account, the whole will be opened and a new account will be directed to be taken without refer- ence to that which has been stated; but if there is no fraud, and if no mistake affecting the whole account can be shown, but the correctness of some of the items in it is, nevertheless, disputed, the account already stated will not be treated as non-existing, but will be acted upon as correct, save so far as the party dissatisfied with any item can show it to be erroneous. As to disputed items and claims of each, denied by the other, it is not binding; these items and claims must be determined by the jury from the evidence.^ Such admission by the debtor only establishes, prima facie, the accuracy of the account, and dispenses with other proof of the correctness of the items. It is open to impeachment for fraud, mistake or errors.^ And where 3. Connor v. New York, 1 Seld. 6. Butler v. Pennsylvania, 10 (N. Y.) 296. How. (U. S.) 403. 4. State V. Douglass, 26 Wis. 1. Rehill v. McTague, 114 Pa. St. 428, 7 Am. Rep. 87; People v. 82, 7 A. 224, 60 Am. Rep. 341. Comptroller, 20 Wend. (N. Y.) 2. Cook v. Bouitz, 4 Daly (N. 595; Hall V. State, 39 Wis. 79; Y.), 117; Lockwood v. Thome, 11 Hoboken v. Gear, 27 N. J. L. 265. N. Y. 18; Rose v. Savory, 2 Bing. 5. Taft V. Adams, 3 Gray N. C. 145; Waldron v. Evans, 1 (Mass.), 126; Butler v. Pennsyl- Dak. 11; Thomas v. Hawks, 8 vania, 10 How. (U. S.) 403. Mees. & Wei. 140; Gough v. Fin- 498 Ch. 16 IMPLIED CONTRACTS. §§ 427, 428 the parties in settlement of a disputed claim agree upon the amount due, the defendant cannot then, in a suit against him, set up that there is nothing due against him.^ Such promise is founded upon a sufficient consideration and can be enforced against the debtor, although he may be able to prove that noth- ing in fact is due from him,* If parties have agreed upon an account, they may, by mutual consent, waive this, and agree to a reopening and restatement of the account ; and if, after such statement, the creditor accepts the amount as thus stated as full payment of the account, with- out exception or reservation, this will constitute a full settle- ment of his whole claim, although the amount received is less than the sum agreed on as his due at the first settlement.^ The rule is well established that a settled account may be impeached and re-adjusted by proof of unfairness, fraud or mistake in law or fact.^ It may not be necessary in such case to open the whole account, but the mistake can be corrected and the rights of the parties re-adjusted as to such mistake.^ § 428. Pass-book, written up. — The relation of a bank and its depositor is one simply of debtor and creditor,^ and that the don, 7 Exch. 48; Bright v. CoflFman, 5. Horn v. Railroad Co., 37 Minn. 15 Ind. 371, 77 Am. Dec. 96; -.ild. Trueman v. Hurst, 1 Term R. 40; 6. Conville v. Sheridan, 144 N. Ware v. Manning, 86 Ala. 238, 5 Y. 686, 39 jST. E. 405. So. 682; Hawley v. Harran, 79 7. Weisser v. Denison, 10 IST. Y. Wis. 379, 48 N. W. 676, 46 Am. 68, 61 Am. Rep. 731; Bruen v. St. Rep. 849; NeflF v. Wooding, 83 Hone, 2 Barb. (N. Y.) 586; Phil- Va. 432, 2 S. E. 731; Dunham v. lips v. Belden, 2 Edw. Ch. (N. Y.) Griswold, 100 N. Y. 224, 3 N. E. 1 : Welsh v. Bank, 73 N. Y. 424, 29 76. Am. Rep. 175; Carpenter v. Kent, 3. Dunham v. Griswold, 100 N. 101 N. Y. 591, 5 N. E. 787; Sam- Y. 224, 3 N. E. 76; Compare Chris- son v. Freedman, 102 N. Y. 699, 7 tian V. Ins. Co., 101 Ala. 634, 14 X. E. 419; Wheadon v. Olds, 20 So. 374. Wend. (N. Y.) 174; Malcolm v. 4. Stewart v. Ahrenfeldt, 4 De- Fullerton, 2 Term R. 645; First nio (N.Y.), 189: Hehrum v. Kuhn, Nat. Bank v. Bank, 2 McCreary, 61 N. Y. 623; Fleeter v. Weber, 78 C. C. 438; Conville v. Sheridan, 144 N. Y. 334; Compare Christian v. X. Y. 686, 39 N. E. 405. Ins. Co., 101 Ala. 634, 14 So. 374. 1. Phoenix Bank v. Risley, 111 U. S. 125, 127, 4 S. Ct. 322. 499 § 428 OPERATION OF CONTEACTS. Ch. 16 depositor is not chargeable with any payments except such as are made in conformity with his orders. The object of a pass-book is to inform the depositor from time to time of the condition of his account as it appears upon the books of the bank. The sending of his pass-book to be written up and returned with the vouchers, is, in effect, a demand to know what the bank claims to be the state of his account. And the return of the book, with the vouchers, is the answer to that demand, and, in effect, imparts a request by the bank that the depositor will, in proper time, examine the account so ren- dered, and either sanction or repudiate it;^ his silence is re- garded as an admission that the entries are correct,^ and can only be opened for mistake or fraud.^ The depositor of a bank must examine the account stated within a reasonable time, or he will be precluded from repudi- ating it only for fraud or mistake.^ There is a duty owing from the depositor or customer to the bank to act with that ordinary diligence and care that prudent business men generally bestow on such cases, in the examination and comparison of the debits and credits contained in the pass-book, in order to detect any errors or mistakes therein.® More than this, under ordinary circumstances, could not be required. The general rule is, that if a party so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth ; and conduct, 2. Leather Manuf. Bank v. Mor- Compare Frank v. Bank, 84 N. T. gan, 117 U. S. 96, 6 S. Ct. 657. 209, 38 Am. Rep. 501; Manufactur- 3. Devaynes v. Noble, 1 Merv. ers' Bank v. Barnes, 65 111. 69, 16 530, 535. Am. Rep. 576; National Bank v. 4. Perkins v. Hart, 11 Wheat. Tappan, 6 Kans. 456, 7 Am. Rep. (U. S.) 237, 256; Wiggins v. 568. Burkham, 10 Wall. (U. S.) 129, 6. Hardy v. Bank, 51 Md. 562, 132. 591, 34 Am. Rep. 325; Dana v. 5. Leather Manuf. Bank v. Mor- Bank, 132 Mass. 156, 158. gan, 117 U. S. 96, 6 S. Ct. 657; 500 Cll. 1() IMPLIED CONTBACTS. § 428 bj negligence or omission, when there is a duty cast upon a person by usage of trade or otherwise to disclose the truth, may often have the same effect'' The courts are not in accord. It has been held that a pass- book was merely an account stated, and that the neglect of the depositor to examine it would operate only to cast on him the burden of proving it to be incorrect, and there was no duty on his part to examine it; and he incurs no liability for checks forged by his agent.^ This doctrine was qualified in a later decision^ but now in iNew York the doctrine is repudiated in toto. Thus, a depositor's clerk altered genuine checks which were paid by the bank. The depositor intrusted the verification of the checks, to see that they corresponded with the pass-book and his cash-book, to the same clerk, and it was held that the failure to discover the fraud exonerated the bank from liability for subsequent checks,^*' because the duty of reasonable verifi- cation of the returned checks, is placed on the basis of the well- established banking usage, and is regarded as a just mitigation of the vigorous liability imposed on the bank,^^ and is now a well-established principle of law.^^ However, the measure of diligence is less strict in the event of an indorsement being forged, as the drawer of a check cannot reasonably be supposed capable of determining the genuineness of the signature of the payee or a subsequent indorser.^^ The depositor's duty to verify 7. Freeman v. Cooke, 2 Exch. 10. Critten v. Bank, 171 K Y. 654; Carr v. Railway Co., L. R. 10 219, 63 N. E. 969, 57 L. R. A. 529. C. P. 307. See, also, McKenzie v. 11. Dana v. Bank, 132 Mass. Linen Co., 6 App. Cas. 82, 101; 186; Leather Manf. Bank v. Mor- Miles V. Mcllwraith, 8 App. Cas. gan, 117 U. S. 96, 6 S. Ct. 657; 120, 133; Cornish v. Abington, 4 Critten v. Bank, 171 N. Y. 219, 63 Hurl. & N. 549, 556; Blair v. Wait, N. E. 969, 57 L. R. A. 529. 69 N. Y. 113, 116. 12. Myers v. Bank, 193 Pa. St. 8. Weisser v. Denison, 10 N. Y. 1, 44 A. 280, 74 Am. St. Rep. 672. 68, 61 Am. Dec. 731; Welsh v. 13. Atlanta Nat. Bank v. Burke, Bank, 73 N. Y. 424, 29 Am. Rep. 81 Ga. 597, 7 S. E. 738, 2 L. R. A. 175. 96 and note; Shipman v. Bank, 126 9. Frank v. Bank, 84 N. Y. 209, N. Y. 318, 27 N. E. 371, 12 L. R, 38 Am. Rep. 501. A. 791 and note, 22 Am. St. Rep. 821. 501 § 428 OPERATION OF CONTKACTS. Ch. 16 his account does not extend to the results arising from the neg- lect or failure to do so. Under the new rule a depositor cannot recover from the bank any forged or altered checks it may pay after he has had a reasonable time in which to discover the first fraud. But as to checks paid previously, the bank is still liable.^* But the courts are not in accord, and some courts make no distinction, and hold that the depositor's failure to discover the forgery is equivalent to a ratification of all the checks drawn, and he is therefore estopped to deny their genuineness, and is compelled to stand the loss.^^ The damages to the bank, by reason of the depositor's negli- gence, is the difference between the whole amount and the amount recovered back by the bank.^® It is held by some authority that if the depositor intrusts the examination to a clerk who- has forged the check, and thus the forgery is not discovered, the depositor is not liable, because notice to an agent who is acting contrary to his principal's in- terests, does not affect the principal. ^'^ But another line of de- cisions holds that notice to the clerk is notice to his employer ; that the clerk's knowledge must be imputed to the depositor, for intention is not the determining factor in the case.^^ This is on the ground that the depositor has a positive duty to per- form and by delegating it to his clerk does not lessen his liability. Courts are in conflict. The old rule was and is now, as set forth by some of the courts, that the loss arising from the Denison, 10 N, Y. 68, 61 Am. Dec. Bank, 10 K Y. 68, 61 Am. Dec. 219, 63 N. E. 969,57 L. R. A. 529. 731; Hardy v. Bank, 51 Md. 562, 15. Dana v. Bank, 132 Mass. 34 Am. Rep. 325. 156; Leather Manuf. Bank v. Mor- 18. Dana v. Bank, 132 Mass. gan, 117 U. S. 96, 6 S. Ct. 657. 156; Leather Manuf. Bank v. Mor- 16. First Nat. Bank v. Allen, gan, 117 U. S. 96, 6 S. Ct. 657; 100 Ala. 476, 14 So. 235, 27 L. R. Bank v. Allen, 100 Ala. 476, 17 So. A. 426 and note, 46 Am. St. Rep. 335, 27 L. R. A. 426 and note, 46 80. Am. St. Rep. 80; Critten v. Bank, 17. Welsh V. Bank, 73 N. Y. 171 N. Y. 219, 63 N. E. 969, 57 L. 424, 29 Am. Rep. 175; Weisser v. R. A. 529. 502 Ch. 16 IMPLIED CONTRACTS. §§ 428, 429 payment of a forged check, must, as between the bank and the depositor, fall primarily upon the bank, as it pays the check at its peril. But under a new ruling, which is the law in some jurisdictions, the depositor owes a duty to examine the checks and his pass-book within a reason- able time, and if he neglects so to do, and a forgery is overlooked by him, the loss must fall on him. He can- not recover from the bank for any forged checks he may pay after he has had a reasonable time to discover the fraud; but as to checks paid previously to such time, the bank is still liable. This rule applies though the depositor gives the checks into the hands of his clerk who forges them, as the notice of the clerk can be imputed to the depositor. This undoubtedly is the better law. § 429. Burden of proof. — The burden of proof is always upon the party having that liberty ; for the court takes it as a stated account and establishes it.^ In case of fraud, an account will be opened in toto, even after the lapse of a considerable time; but if no fraud be proved, an account which has been long settled will not be opened.^ The burden of proof is on the party who assails the account stated.^ But the acount, in order to constitute a contract, should ap- pear to be something more than a mere memorandum ; it should show upon its face a final settlement, expressed with clearness and certainty.^ 1. Pit V. Cholmondeley, 2 Ves. Thome, 18 N. Y. 292; Maybury v. Sr. 565; Vernon v. Vawdey, 2 Atk. Berkery, 102 Mich. 126, 60 N. W. 119. 699; Lake v. Tyson, 6 N. Y. 461; 2. Rehill v. McTague, 114 Pa. Davis v. Gallagher, 55 Hun (N. St. 82, 7 A. 224, 60 Am. Rep. 341. Y.), 593, 9 X. Y. S. 11. 3. Ware v. Manning, 86 Ala. 4. Coffee v. Williams, 103 Cal. 238, 6 So. 682; Cook v. Bouitz, 4 550, 37 P. 504. Daly (N. Y.), 117; Lockwood v. 503 § 430 OPEEATION OF CONTRACTS. Ch. 16 ARTICLE II. Paying Another's Debts. Section 430. Paying Debts of Another. 431. Under Obligations. 432. Voluntary Payment Raises no Assumpsit. 433. Rights of Partners After Dissolution. 434. Suretyship. 435. To Save Property. 436. Contribution. 437. Contribution Among Wrongdoers. 438. Contribution Among Wrongdoers — Exceptions to General Rule. 439. Indemnity. 440. Fraud. 441. Payment. 442. Express Contracts. 443. Void Contracts. 444. Difference Between Express and Implied Contracts. § 430. Paying debts of another. — Voluntary payment of an- otlier's debts creates no liability against tbe debtor;^ for no one can voluntarily pay another's debts and then insist on re- payment to him.^ A man cannot of his own will pay another man's debt without his consent, and thereby commit himself into a creditor.^ The law does not permit a liability of a party for a debt to one person to be shifted so as to make him debtor to another without his consent/ and assumpsit will not lie for money voluntarily paid by one on the debt of another without 1. Jackisch v. Hardtke, 50 111. & Sel. 446; Exall v. Partridge, 8 App. 202; Johnson v. Packet Co., Term R. 308, 310; Sleigh v. Sleigh, L. R. 3 C. P. 38, 43; Mayor v. 5 Exch. 514; Blanchard v. Associa- Hughes, 1 Gill & J. (Md.) 480, 19 tion, 59 Me. 202; Oden v. Elliott, Am. Dec. 243; Hearn v. Cullin, 54 10 B. Mon. (Ky.) 313; South Md. 533. Scituate v. Hanover, 9 Gray 2. Keifer v. Summers, 137 Ind. (Mass.), 420; Little v. Gibbs, 1 106, 35 N. E. 1103, 36 N. E. 894; South (N. J.), 211; Beach v. Van- Durnford v. Messiter, 5 Maule & deburgh, 10 Johns. (N. Y.) 361. Sel. 446. 4. Winsor v. Savage, 9 Met. 3. Durnford v. Messiter, 5 Maule (Mass.) 348. 504 Ch. 16 IMPLIED CONTRACTS. §§ 430, 431 the latter's consent. But if the creditor accepts it as payment, it extinguishes the debt at law.^ § 431. Under obligation. — In some transactions the law im- plies a fictitious request to pay the debts of another. So when- ever one person allows another to assume such a position that the law will compel the latter to discharge a debt of the former, then the law imparts a request and promise by the former to the latter to make the payment, the law creates the agreement and the former is under an obligation to reimburse the latter for such payment.^ But the obligation must be more than moral.^ As a general rule, if one has paid money for the benefit of another, which the latter was legally bound to pay, and has done so for a reasonable cause and not officiously, he can recover the amount in assumpsit of the party for whose benefit it was paid.^ So when a carrier, by mistake, delivers goods to the wrong person, and he wrongfully detains them, so that the carrier is compelled to pay for them, he is liable to the carrier for money thus paid.^ And, so, when a partnership is compelled to pay the personal debt of one of the partners, he is liable to the partner- ship for the amount thus paid.^*^ But a mere volunteer in pay- ing the debts of another has no remedy against the debtor.^^ 5. Martin v. Quinn, 37 Cal. 55; 465; Tuttle v. Armstead, 53 Conn. Harrison v. Hicks, 1 Port. (Ala.) 175, 22 A. 677. 423, 27 Am. Dec. 638. 7. Atkins v. Banwell, 2 East 6. Hutton V. Eyre, 6 Taunt. 289; 505. Hawley v. Beverley, 6 Man. & G. 8. Bailey v. Bussing, 28 Conn. 221 ; Johnson v. Packet Co., L. R. 455, tj8 Am. Dec. 404 and note. 3 C. P. 38; Sapsford v. Fletcher, 4 9. Brown v. Hodgson, 4 Taunt. Term R. 511; Hales v. Freeman, 1 188. Brod. & B. 391; Hutzler v. Lord, 10. Cross v. Cheshire, 7 Exch. 43. 64 Md. 534. 3 A. 891 ; Beard V. Hor- 11 Bates v. ToAvnley, 2 Exch. ton, 86 Ala. 202, 5 So. 207 ; Houser 152; Sleigh v. Sleigh, 5 Exch. V. McGinnas, 108 N. Car. 631, 13 514; Johnson v. Packet Co., L. R. 3 S. E. 139, 23 Am. St. Rep. 49; C. P. 38, 41; Winsor v. Savage, 9 Gressell v. Robinson, 3 Bing. N. Met. (Mass.) 346. C. 10; Perin v. Parker, 25 111. App. 505 §§ 432, 433 opEitATiON of conteacts. Ch. 16 § 432. Voluntary payment raises no assumpsit. — Voluntary payments give no cause of action against the debtor who has not requested the payer to discharge the debt. It falls within the rule of law, that the payment of the debt raises no assump- sit against the person whose debt is paid, and no action will lie by reason of such payment, unless a request, either express or implied, to make the payment is proved ;^ for no one can. make himself the creditor of another who does not covenant either in fact or by legal implication.^ So a member of a corporation, who is not its financial officer, cannot without authority, make himself its creditor by the vol- untary payment of its debts. ^ But the payment is not neces- isarily voluntary, nor is it to be treated as a gift because the debtor did not act under compulsion in paying it a second time by mistake.* § 433. Rights of patners after dissolution. — ^When a part- nership has been dissolved, and its partnership accounts fully settled, an express promise to pay the balance is not necessary, because the promise is implied in closing the accounts and stat- ing the balance; and one partner who has paid the partner- ship debts may maintain an action against the other for con- tribution, although there has been no express promise on his part to pay the balance;^ and this is true although he gives his individual note as absolute payment for a debt due from the partnership to third parties.^ Of course, after the dissolution of the partnership one part- 1. Winsor v. Savage, 9 Met. 3. Blanchard v. Association, 59 (Mass.) 348; South Scituate v. Me. 202. Hanover, 9 Gray (Mass.), 420. 4. Pool v. Allen, 7 Ired. (N. 2. Jenkins v. School Dist., 39 Car.) 120; Houser v. McGinnas, 108 Me. 220; Bancroft v. Abbott, 3 N. Car. 631, 13 S. E. 139. Allen (Mass.), 524; Jones v. Wil- 5. Clouch v. Moyer, 23 Kan. 405; son, 3 Johns. (N. Y.) 434; Rich- Brown v. Agnew, 6 Watts & S. ardson v. Williams, 49 Me. 558; (Pa.) 235; Whitstone v. Shaw, 70 Lewis V. Lewis, 3 Strobh. (S. Car.) Mo. 575; Sears v. Starbird, 78 530; Woodford v. Levenworth, 14 Cal. 225, 20 P. 547. Ind. 311. 6. Clouch v. Moyer, 23 Kan. 405. 506 Ch. 16 IMPLIED CONTRACTS. §§ 433, 434 ner cannot revive a debt barred by the statute of limitations, but during tbe pendency of the partnership each partner is an agent for all in making an acknowledg-ment under the statute of limitations.^ But no action lies by one partner against an- other, unless there has been a settlement of accounts, and a promise to pay the balance. § 434. Suretyship. — There is no doubt that contribution may be enforced at law as well as in equity, among co-sureties, al- though no such contract exists. And it matters not, in case of debt, whether the sureties are jointly and severally bound, or only severally ; or whether their suretyship arises under the same obligation or instrument, or under divers obligations or instruments, if all the instruments are for the same identical debt.^ Contribution arises upon a principle of equity, though it is now established to be the foundation of an action at law.^ A request to pay and a promise to pay by a co-surety are created by law.^ It has been held that co-sureties must enforce contribution in equity.* But this is not the law at the present time. The surety may also recover the money paid, for his principal as for money paid at his request.^ 7. Woods on Lim. 433 ; Parsons Tex. 644, 14 S. W. 235 ; Johnson v. on Part. 188. Harvey, 84 N. Y. 363, 38 Am. Rep. 1. Story on Eq. Jur. 495. 515; Aldrich v. Aldrich, 56 Vt. 324, 2. Davies v. Humphreys, 6 Mees. 48 Am. Rep. 791; Foster v. Burton, & W. 153. 62 Vt. 239, 20 A. 326; Logan v. 3. Deering v. Winchelsea, 2 Bos. Trayser, 77 Wis. 579, 46 N. W. & P. 270; Davies v. Humphreys, 6 877; Wilton v. Tazwell, 86 111. 29; Mees. & W. 153; Kemp v. Fender, Fletcher v. Grover, 11 N. H. 368, 12 Mees. & W. 421; Holmes v. Wil- 35 Am. Dec. 497. liamson, 6 Maule & S. 158; Bush- 4. Longley v. Griggs, 10 Pick, nell V. Bushnell, 77 Wis. 435, 46 (Mass.) 121; McDonald v. Magru- N. W. 442, 9 L. R. A. 411 and note; der, 3 Pet. (U. S.) 470. Gibbs V. Bryant, 1 Pick. (Mass.) 5. Alexander v. Vane, 1 Mees. & 118; Kimble v. Cummins, 3 Met. Wei. 511; Touissaint v. Martinant, (Ky.) 327; Exall v. Partridge, 8 2 Term R. 100; Pownal v. Ferrand, Term R. 308 ; Clay v. Severance, 55 6 Barn. & Cr. 439 ; Crisfield v. State, Vt. 300; Jackson v. Murray, 77 55 Md. 192. 507 §§ 435, 436 OPEEATION OF CONTBACTS. Ch. 16 § 435. To save property, — ^Assumpsit lies for money paid. Generally, it is sufficient if the money is paid for a reasonable cause and not officiously.-^ bo where one has paid to relieve a neighbor's goods from legal distraint in his absence, the law creates a contract, and the neighbor must reimburse the payer.^ So where one's own property can be preserved only by paying the debt of another, the debtor must repay the payer.^ So, for getting the defendant's goods free, which had been distrained by the landlord for the defendant's debts, they being at the time on the tenant's premises.^ Or for money paid to indemnify the owner for the loss of his goods, which the plaintiff, an auctioneer, had by mistake delivered to the defendant, who had appropriated them to his own use.^ So, where an importer has violated the revenue law, so as to render the goods liable to confiscation by the government, he will become liable to any innocent purchaser of those goods, who purchased in order to compromise a suit to confiscate the goods.^ In paying money for the release of one's own property, it must be shown that its seizure was lawful, for if the seizure is unlawful, no liability arises as to the debtor.'' § 436. Contribution. — The right to contribution between co- sureties or joint promisors depends upon the principle of equity rather than upon contract. It is well settled that the liability exists, although the sureties are ignorant of each other's en- gagement. It is not sufficient that both parties are sureties, they must occupy the same position in respect to the principal, 1. Brown v. Hodgson, 4 Taunt. 3. Cole v. Malcom, 66 N. Y. 363; 189; Skillin v. Merrill, 16 Mass. Exall v. Partridge, 8 Term R. 308. 40; Jefferys v. Gurr, 2 Barn & Ad. 4. Exall v. Partridge, 8 Term R. 833; Pownal v. Ferrand, 6 Barn. & 308. Cr. 439; Exall v. Partridge, 8 Term 5. Brown v. Hodgson, 4 Taunt. R. 308; Touissaint v. Martinant, 189. 2 Term R. 100. 6. Summers v. Clark, 29 La. 2. Jenkins v. Tucker, 1 H. Bl. Ann. 93. 90. 7. Myers v. Smith, 27 Md. 91. 508 Cb. IG IMPI^IiiD CONTKACTS. §§ 436,437 and without equities between tbemselves, giving an advantage to one over the otber.^ When persons are under legal obligations to pay a debt not in violation of law, and one of them pays it, the law creates a promise that his co-debtors will pay him their proportionate part.^ § 437. Contribution among wrongdoers. — Contribution can- not be enforced among wrongdoers.^ The general rule is that between wrongdoers there is neither indemnity nor contribu- tion ; the exception is where the act is not clearly illegal.^ There is no implied obligation to contribute between wrong- doers, and if such liability can be created by express promise, the promise must rest upon some other consideration than the fact of the tort and of the relation of the accused parties to each, other in the wrongful transaction. There must be some new consideration, such as mutual promises, the transfer of some value, the deprivation of some right or advantage, or the like, which the law recognizes as constituting a valid consideration.' But this rule applies only to cases where there has been an inten- tional violation of law, or where the wrongdoer is to be presumed to have known that the act was unlawful.* 8. Wells V. Miller, 66 N. Y. 255 Craven v. Freeman, 82 N. Car. 361 Scofield V. Gaskill, 60 Ga. 277 Healey v. Scofield, 60 Ga. 450. 9. Fowler v. Donovan, 79 III. 310; Kincaid v. Hocker, 7 J. J. Marsh. (Ky.) 333; Robertson v. Deatherage, 82 111. 511; Snyder v. Kirtley, 35 Mo. 423; Chipman v. Morrill, 20 Cal. 130. 1. Boyer v. Bolender, 129 Pa. St. 324, 18 A. 127, 15 Am. St. Rep. 723; Spalding v. Oakes, 42 Vt. 343; Peck v. Ellis, 2 Johns. Ch. (N. Y.) 131; Cranston v. Limhet, 18 Ohio, 81, 51 Am. Dec. 442; Miller v. Fenton, 11 Paige (N. Y.), 18; Vose V. Grant, 15 Mass. 505; Hunt v. Lane, 9 Ind. 248; Merryweather v. Nixan, 8 Term R. 186; Betts v. Gibbins, 2 Ad. & El. 57. 2. Betts V. Gibbins, 2 Ad. & El. 57, 74. 3. Nichols V. Nowling, 82 Ind. 488. 4. Bailey v. Bussing, 28 Conn. 455. See, also, Adamson v. Jarvis, 4 Bing. 66; Wooley v. Batte, 2 Car. & P. 417; Pearson v. Skelton, 1 Mees. & Wei. 504; Acheson v. Miller, 2 Ohio St. 203. 59 Am. Dec. 663; Moore v. Appleton, 26 Ala. 633. 509 §§ 437-439 opEHATioN or contbacts. Cb. 16 Contribution will not be enforced in favor of a wrongdoer wbo knew at tbe time of tbe commission of tbe act for wbicb he bas been compelled to respond, tbat sucb act was wrongful.^ § 438. Contribution among wrongdoers — Exceptions to general rule. — Tbe rule tbat there can be no contribution among wrongdoers applies to cases where there bas been an intentional violation of law, or where the wrongdoer is presumed to have known that the act was unlawful.^ Hence, the rule does not ap- ply where one of them is innocent of any intentional or actual wrong, and has been compelled to pay damages which the other, who was the actual wrongdoer, should have paid.' If the party is innocent of the illegal purpose, ignorant of the nature of the act, which was apparently correct and proper, the general rule will change with its reason, and he may then have a contribution, and it can be enforced by action if refused, whe- ther the person seeking it has been subjected, in case or assump- sit, to the damages of which he complains.^ § 439. Indemnity. — The general rule is that between wron- doers there is neither indemnity or contribution. The exception is where the act is clearly not illegal in itself.^ There may be an indemnity between wrongdoers unless it appears that they have been jointly concerned in a transaction which the party complaining knew to be illegal.^" The general rule does not 5. Johnson v. Torpy, 35 Neb. 604, Light Co., 114 Mass. 149, 19 Am. 53 N. W. 575, 37 Am. St. Rep. 447 ; Rep. 324; Churchill v. Holt, 127 Torpy V. Johnson, 43 Neb. 882, 62 Mass. 165, 34 Am. Rep. 355. N. W. 253. 7. Bailey v. Bussing, 28 Conn. 6. Farwell v. Becker, 129 111. 261, 455; Port Jervis v. Bank, 96 N. Y. 21 N. E. 792, 6 L. R. A. 400, 16 Am. 550; Farwell v. Becker, 129 111. St. Rep. 267; Armstrong Co. v. 261, 21 N. E. 792, 6 L. R. A. 400, Clanen Co., 66 Pa. St. 218, 5 Am. 16 Am. St. Rep. 267. Rep. 368; Bailey v. Bussing, 28 8. Bailey v. Bussing, 28 Conn. Conn. 455; Jacobs v. Pollard, 10 455. Cush. (Mass.) 287, 57 Am. Dec. 9. Betts v. Gibbins, 2 Ad. & El. 105; Betts v. Gibbins, 2 Ad. & El. 57. 57; Acheson v. Miller, 2 Ohio St. 10. Batterse/s Case, Winch, 48. . 203, 59 Am. Dec. 663 ; Gray v. Gas 510 Cll. IG IMPLIED CONTRACTS. §§ 439-442 affect cases of indemnity, wiiere one man employs another to do acts, not unlawful in themselves, for the purpose of asserting a right." § 440. Fraud. — ^Where a party has fraudulently caused dam- age to another he is responsible. So a party must make good any loss or damage which, by his act or omission or legal de- fault, has been occasioned to another.^ And so where one has been compelled to pay money to a third party by the fraud of another, the wrongdoer is liable to him for money thus paid.^^ Where money has been obtained by fraud or deceit, the law implies a promise by the wrongful doer to restore it.^'* § 441. Payment. — Before the law creates an implied con- tract there must be a payment by the party complaining. Pay- ment of a money debt as surety or indorser by conveying land, which is received as payment, is sufficient to give rise to con- tribution.-^ The giving of a promissory note may, in some cases, be equivalent to the payment of money; but the giving of a bond is not such a payment.^ If a note is received as an abso- lute payment of the debt, that is sufficient though it has not been paid.^ § 442. Express contract. — There can be no implied contract between parties so long as there is a written contract covering the same thing; for there can be but one contract at the same time between the same parties touching the same subject mat- 11. Merryweather v. Nivan, 8 40 W. Va. 385, 22 S. E. 73; Bull v. Term R. 186. Quincey, 52 111. App. 186. 12. Moule V. Garrett, L. R. 7 Exch. 101. 1. Ainslie v. Wilson, 7 Ck)w. (N. 13. Van Santen v. Oil Co., 81 N. Y.) 662, 17 Am. Dec. 532; Randall Y. 171; Bleaden v. Charles, 7 Bing. v. Rich, 11 Mass. 494. 246. 2. Taylor v. Higgins, 3 East, 14. Garber v. Arraentrout, 32 169; Gumming v. Fisher, 8 Johns. Gratt. (Va.) 235; Bliss v. Thomp- (N. Y.) 202. son, 4 Mass. 488; Lyon v. Annable. 3. Clouch v. Moyer, 23 Kans. 4 Conn. 350; Robinson v. Welly, 404. 511 §§ 442, 443 OPERATION OF CONTRACTS. Ch. 16 ter; and if a written contract exists it takes precedence of all others, and forms the only contract between the parties during the time of its existence.^ As the law has prescribed different forms of action on different securities, assumpsit cannot be supported where there has been an express promise under seal or of record ; but the party must proceed in debt or covenant where the contract is under seal.^ So long as the express con- tract remains in force, the party cannot abandon it and re- cover on an implied one. Where an express contract is shown, it follows as one of the fundamental principles of the law that none can be implied.^ But this rule has been qualified. If the express contract is not under seal, and embraces only what the law would imply, a party may sue on it or on the implied contract at his election.* § 443. Void contract. — A void contract is no contract at all ; and if money is paid on such contract, it is paid without con- sideration either good or valuable and may be recovered back, unless the contract is of such a character that the law will not aid either party.^ And if it is void for one party it is void for the other, and the defendant cannot set it up as a defense and discharge of a debt honestly due the plaintiff. If the express contract fails on account of being void, the complaining party may recover pay on a contract created by law.^ 1. Tietz V. Tietz, 90 Wis. 66, 62 L. 494. See, also, Walker v. N. W. 339; Barry v. Ryan, 4 Gray Brown, 28 111. 378, 81 Am. Dec. 287; (Mass.), 523; North v. Nichols, 37 Dermott v. Jones, 2 Wall. (U. S.) Conn. 375; Spencer v. Parry, 3 1; Western v. Sharp, 14 B. Mon. Adol. & El. 331; Lubbock v. Tribe, (Ky.) 177. 3 Mees. & Wei. 607. 4. Gibbs v. Bryant, 1 Pick. 2. Chitty on Plead. 98, 344; (Mass.) 118; Princeton, etc. Turn- Brewer V. Dyer, 7 Gush. (Mass.) pike Co. v. Gulick, 16 N. J. L. 161. 337; Colman v. Jenkins, 14 Mass. 5. Gist v. Smith, 78 Ky. 367. 93. 6. Thurston v. Percival, 1 Pick. 3. Holden Steam Mill Co. V. Wes- (Mass.) 415; Morier v. Morj^an, tervelt, 67 Me. 446 ; Touissaint v. 58 111. App. 235 ; Holbrook v. Clapp, Martinant, 2 Term R. 100; Dra- 105 Mass. 563, 43 N. E. 508; Dow- per V. Randolph, 4 Harr. (Del.) ling v. McKenny, 124 Mass. 478; 454; Voorhees v. Combs, 33 N. J. Duquette v. Richar, 102 Mich. 483, 512 Ch. 16 IMPLIED CONTRACTS. §§ 444, 445 § 444. Difference between express and implied contracts. — The difference between express and implied contracts is merely a difference in the mode of proof;' and at common law, in pleading the form of action for an implied contract is assump- sit.^ Implied contracts are alleged in the declaration, the same as express ones,^ and a consideration is alleged.* The statutes may now control this mode of pleading. ARTICLE III. Receiving Money fob the Use of Anothee. Section 445. Eeceiving Money which Belongs to Another. 446. Receiving Property. 447. Illegal Contracts. 448. Want of Consideration — Recovering Back Money Paid. 449. Voluntary Payment with Knowledge of all the Facts. 450. Payment Under Mistake of Fact. 451. Agent of Both Seller and Purchaser — Pajnnent of Commis- sion. 452. Mistake of Law. 453. Mistake of Law in Equity. 454. Compromise. 455. Duress. 456. Payment of Taxes and Assessments. § 445. Receiving money which belongs to another. — If one man hat obtained money from another, tlirough the medium of oppression, imposition, extortion or deceit, such money is, in contemplation of law, money received for the use of the in- 60 N W. 974 ; Hart v. Maney, 12 2. 1 Chitty on Plead. 302 ; :\Ion- VVash. 266. 40 P. 987;.Pracht v. son v. Williams, 6 Gray (Mass.), Daniels, 20 Colo. 100, 36 P. 845. 416; Pawlet v. Sandgate, 19 Vt. See, also, Lytle v. Bowden, 107 621; Downing v. Freeman, 13 Me. Ala. 361, 18 So. 130; Burton Lum. 90. Co. V. Wilder, 108 Ala. 669, 18 So. 3. Bailey v. Bussing, 28 Conn. 552. 1. 455, 21 Conn. 1. 1. Church V. Coke Co., 6 Ad. & 4. Wingo v. Brown, 12 Rich. El. 846. (S. Car.) L. 279. 513 § 445 OPERATION OF CONTRACTS. Ch. 16 jured party, which can be recovered back.^ And so, when money is received as a gift from a person of unsound mind, the law implies that it is held by the donee for the use of the donor.^ If property or anything else be received as the equivalent of money, by one who assumes to cancel or dispose of a prop- erty right, for which, by contract, or liability, legal or equitable, it is his duty to account to another, the latter may treat the transaction as a receipt of money, and sue for it as such, in assumpsit.^ Privity of estate is created where the defendant has received money belonging to the plaintiff, which in equity and good con- science he ought to repay.^ Thus, when a party sells land not belonging to him and receives the money, he becomes at once liable to the vendee for the money thus paid.^ So a party selling land which is owned jointly by himself and another, the latter can recover his share from the former.^ 1. McQueen v. Bank, 2 Ind. 413; Moore v. Shields, 121 Ind. 267, 23 N. E. 89; Bullaid v. Hascall, 25 Mich. 132; Mason v. Waite, 17 Mass. 560. 2. Teegarder v. Lewis, 145 Ind. 98, 40 N. E. 1047, 44 N. E. 9. See, also. Walker v. Conant, 65 Mich. 794, 31 K W. 786; People v. Speir, 77 N. Y. 144. 3. Stewart v. Connor, 9 Ala. 803 ; Cameron v. Clark, 8 Ala. 259; Strickland v. Burns, 14 Ala. 511: Thompson v. Thompson, 5 W. Va. 190; Jackson v. Hough. 38 W. Va. 236, 18 8. E. 575; Vrooman v. Mc- Kaig, 4 Md. 450, 59 Am. Dec. 85; Lawson v. Lawson, 16 Gratt. (Va.) 230, 80 Am. Dec. 7"02; Merchants' Bank v. Rawls, 7 Ga. 191, 50 Am. Dec. 394; Boyett v. Potter, 80 Ala. 476, 2 So. 1534; Barnett v. Warren, 82 Ala. 557, 2 So. 457; Glasscock V. Lyons, 20 Ind. 1, 83 Am. Dec. 299; O'Fallon v. Boismenn, 3 Mo. • 514 405, 26 Am. Dec. 678; O'Conley v. Natches, 1 Sm. & M. (Miss.) 31, 40 Am. Dec. 87 ; Barnes v. Johnson, 84 111. 95; Chemical Nat. Bank v. Bank, 156 111. 149, 41 N. E. 225. 4. Walker v. Conant, 65 Mich. 194, 31 N. W. 786; Drake v. Whaley, 35 S. Car. 187, 14 S. E. 397; Com.' pare Sergeant v. Stryker, 16 N. J. L. 464, 32 Am. Dec. 404. 5. Pevey v. Jones, 71 Miss. 647, 16 So. 252, 42 Am. St. Rep. 486. See, also, Birmingham Lumber Co. V. Brinson, 94 Ga. 517, 20 S. E. 437; Paul v. Grimm, 165 Pa. St. 451, 30 A. 721. 6. Gottschalk v. Smith, 156 111. 377, 40 N, E. 937. See, also, Zang Brewing Co. v. Bernheim, 7 Colo. App. 528, 44 P. 380; Brand v. Wil- liams, 29 Minn. 238, 13 N. 42; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588; Clark V. Pinney, 6 Cow. (N. Y.) 297. Ch. IG I.MIM.IKD CO.NTKACTS. § 446 § 446. Receiving property. — An action to recover for money paid, or had and received, will not generally lie except upon the payment of maney.^ But if property, or anything else, be received as the equivalent of money, by a person who has as- sumed to cancel or dispose of a property right, for which he is liable legally or equitably, to account to another, the latter may treat the transaction as a receipt of money, and sue for money had and received.^ The action may lie when the equivalent of money has been actually accepted as money, by the party receiving it, as where an agent has discharged his principal's debt by applying there- on a debt owing by himself f or w^here a surety has transferred property to the creditor, who received it in payment of a judg- ment/ But where property has been received by the defendant, but has not been converted into money, and is not received as an equivalent of money, there is no implied contract for money had and received f but so soon as the property has been sold and converted to the defendant's use, then it can be recovered as money had and received;^ or has had the property so long that a presumption of its sale arises.' It has been held that no action for money had and received w'ill lie, if the amount of the property cannot be ascertained 1. National Trust Co. v. Gleason, 5. Moody v. Walker, 89 Ala. 619, 77 N. Y, 400, 33 Am. Rep. 632 and 7 So. 246 ; Tuttle v. Campbell, 74 note; Gumming V. Hackley, 8 Johns. Mich. 652, 42 N. W. 384, 16 Am. (N. y.) 202; Moyer v. Shoemaker, St. Rep. 652 and note; Stearns v. 5 Barb. (N. Y.) 319. Dillingham, 22 Vt. 624, 54 Am. 2. Barnett v. Warren, 82 Ala. Dee. 88; Hendricks v. Goodrich, 15 657, 2 So. 457; Brundage v. Port- Wis. 679; Thurston v. Mills, 16 Chester, 102 N. Y. 494, 7 N. E. 398 ; East, 254. Balch V. Patten, 45 Me. 41, 71 Am. 6. Staat v. Evans, 35 111. 455; Dec. 526; Libby v. Robinson, 79 Me. Comstock v. Hier, 73 N. Y. 269, 29 168, 9 A. 24; Atkins v. Owen, 4 Am. Rep. 142; Gilmore v. Wilbur, Adol. & El. 819; Lee v. Merritt. 8 12 Pick. (Mass.) 120, 22 Am. Dec. Q. B. 820. 410; Olive v. Olive, 95 N. Car. 485. 3. Beardsley v. Root, 11 Johns. 7. Moody v. Walker, 89 Ala. 619, ( X. Y. ) 464, 6 Am. Dec. 386. 7 So. 246. 4. Bonney v. Seely, 2 Wend. (N. Y.) 481. 515 §§ 446-448 OPERATION OF CONTRACTS. Ch. 16 though sold f or if the property has been exchanged for other property;® or if the money or an equivalent is not received.^" § 447. Illegal contract. — The principle of law is ex dolo malo oritur actio — a right of action cannot arise out of fraud. So no court will lend its aid to a man who founds his cause of action upon an immoral or illegal action. ^^ Hence, where a party has knowingly paid money under an illegal or immoral contract, he cannot recover it back.^^ And, so, if a man loans money with the intention and un- derstanding on his part that it is to be used for an illegal pur- pose, and it is so used, he cannot recover it back from the bor- rower; he must loan his money for the express purpose of promoting the illegal design of the borrower. ^^ § 448. Want of consideration — Recovering back money paid. — Wherever a contract is rescinded according to the orig- inal terms of it, the purchaser may well recover the price as money had and received to his use.^ So where a contract is defeated by the negligence or misconduct of one party, the other may have his election to rescind the contract and recover 8. Saville v. Welch, 58 Vt. 683, Met. (Mass.) 207: Banchor v. Man- 5 A. 491; Glascock v. Hazell, 109 sel, 47 Me. 58; Cannan v. Bryee, 3 N. Car. 457, 13 S. E. 789. Barn. & Aid. 179; McKinnell v. 9. Fuller v. Duven, 36 Ala. 73, Robinson, 3 Mees. & Wei. 434; 76 Am. Dec. 318; Kidney v. Persons, Tracy v. Talmage, 14 N. Y. 162, 67 41 Vt. 386, 98 Am. Dec. 595. Am. Dec. 132 and note. 10. Budd V. Hiler, 27 N. J. L. 1. Towers v. Barrett, 1 Term R. 43. 133; Giles .'. Edwards, 7 Term R. 11. Holman v. Johnson, 1 Cowp. 181; Devaux v. Conolly, 8 C. B. 341. 640; Earl v. Bickford, 6 Allen 12. Gaylord v. Soragen, 32 Vt. (Mass.), 549, 83 Am. Dee. 651; 110, 76 Am. Dec. 154; Hili v. Spear, Johnson v. Jennings, 10 Gratt. 50 N. H. 253, 9 Am. Rep. 205. (Va.) 1, 60 Am. Dec. 323; Claflin 13. Tyler V. Carlisle, 79 Me. 210, v. Godfrey, 21 Pick. (Mass.) 1; 2 A. 845, 1 Am. St. Rep. :301 and Cripps v. Reade, 6 Term R. 606; note; Green v. Collins, 3 Cliff C. C. Wright v. Dickenson, 67 Mich. 580, 494; Peck v. Briggs, 3 Denio (N. 42 N. W. 849, 11 Am. St. Rep. 602; Y.), 107; Mclntyre v. Parks. 3 Sthwinger v. Hickok, 53 N. Y. 280. 516 Ch. 16 IMPLIED CONTEACTS. § 448 back the purchase-money, or to enforce it, and recover dam- ages for its breach.^ And if a person sells bills, notes and other paper, which turn out to be forgeries, or for other causes are of no value, the purchaser can bring an action to recover back the purchase- money f so if a person sells land but conveys no title, money paid can be recovered back as money had and received.* But if a party rescind a contract, he must do it in toto. He cannot disclaim it in part and enforce it in part. So, also, the party rescinding must place the other party in statu quo. If this cannot be done, the contract cannot be rescinded. Hence, if the contract be in any part executed, it cannot be discarded,^ and the injured party, if he has a remedy, must sue for breach of the contractt.® Therefore, when several chattels are sold in gross, for one sum, which is paid by the purchaser, and part of them are delivered, but the seller refuses to deliver the remainder, the purchaser cannot, if he retains those already delivered, recover back any portion of the purchase-money, in an action for money paid, or money had and received, and his remedy is upon the special contract for damages.^ But where the contract embraces two or more subjects, the performance of one of them does not supersede the agTeement 2. Giles V. Edwards, 7 Term R. 502, 3 Am. Dee. 230; Conner v. 181. Henderson, 15 Mass. 319, 8 Am. 3. Wood V. Sheldon, 42 N. J. L. Dec. 103; Rand v. Webber, 64 Me. 421, 56 Am. Rep. 523; Watson v. 191; Clark v. Baker, 5 Met. (Mass.) Cresap, 1 B. Mon. (Ky.) 195, 36 452; Morse v. Brackett, 98 Mass, Am. Dec. 572; Ripley v. Case, 86 205; Johnson v. Johnson, 3 Bos. & Mich. 261, 49 N. W. 45; Moore v. Pul. 162; Way v. Cutting, 17 N. H. Garwood, 4 Exch. 681; Burchf.eld 450; Bassett v. Percival, 5 Allen V. Moore, 3 El. & Bl. 683; Gurney (Mass.), 345. V. Womersley, 4 El. & Bl. 133; Wes- 6. Blackburn v. Smith, 2 Exch. tropp V. Solomon, 8 C. B. 345. 783; Swart v. Gale, 62 N. H. 62. 4. Schwinger v. Hickok, 53 K 7. Miner v. Bradley, 22 Pick. Y. 280; Earle v. Bickford, 6 Allen (Mass.) 457; Johnson v. Johnson, (Mass.), 549, 18 Am. Dec. 651. 3 Bos. & Pul. 162. See, also, Gom- 5. Hunt V. Sick, 5 East, 449; pertz v. Denton. 1 Cromp. «£ M. Kimball v. Cunningham, 4 Mass. 207. 517 ;§ 448,449 OPERATION OF CONTRACTS. Ch. 16 as to the others. If the consideration is severable, the part failing may be recovered back as money had and received.^ The party causing the failure of consideration by his own default, cannot recover the money paid f and where he buys property at his own risk and pays accordingly, he cannot re- cover if it does not prove of any value ;^** if the purchaser receives what he bargains for, he has no cause of complaint. ■^^ § 449. Voluntary payment with knowledge of all the facts. — ^A voluntary payment, made with full knowledge of all the facts and circumstances of the case, though made under a mistaken view of the law, cannot be revoked, and the money so paid cannot be recovered back.^^ This rule rests upon the general principle of public convenience and applies to a cor- portation as well as to a natural person. ^^ And, so, when one voluntarily pays a void contract with knowl- 8. Laflin v. Howe, 112 111. 253; Miner v. Bradley, 22 Pick. (Mass.) 457; Goodspeed v. Fuller, 46 Me. 141; Johnson v. Johnson, 3 Bas. & Pul. 162; Devaux v. Conolly, 8 C. B. 640. 9. Stray v. Russell, 1 El. & El. 888. 10. Lambert v. Heath, 15 Mees. & Wei. 486; Morley v. Attenber- ough, 3 Exch. 500; Westlake v. Adams, 5 C. B., N. S. 2G6. 11. Taylor v. Hare, 1 Bos. &. Pul., K R. 260 ; Westlake v. Adams, 5 C. B., N. S. 266. 12. Clark v. Butcher, 9 Cow. (N, Y.) 674; Ege v. Koontz, 8 Pa. St. 109; Boston, etc. Co. v. Boston, 4 Met. (Mass.) 181; Benson v. Mon- roe, 7 Ctish. (Mass.) 125, 54 Am. Dec. 116; Melins v. Duncan, 6 Barn. & Cr. 671; Stewart v. Stew- art, 6 CI. & Fin. 911; Lamborn v. Commissioners, 97 U. S. 181; Car- son V. Cocl'.van, 52 Minn. 67, 53 N. W. 1130; Bryson v. Home, 168 Pa. St. 352, 31 A. 1008; Armstrong V. Latimer, 165 Pa. St. 398, 30 A. 990; Hickman v. Eggmann, 53 111. App. 561; Garretson v. Joseph, 100 Ala. 279, 13 So. 948; Wessel v. Land Co., 3 N". Dak. 160, 54 N. W. 922; Evans v. Hughes, 3 S. Dak. 244, 52 N. W. 1062 ; Vanderback v. Ilocliester, 122 N. Y. 285, 25 N. E. 408; Wayne County v. Randall, 43 Mich. 137, 5 N. 75; Valley Rail- road Co. V. Iron Co., 46 Ohio St. 44, 18 N. E. 486, 1 L. R. A. 412; Christy v. Sullivan, 50 Cal. 337, 19 Am. Rep. 655; Mutual Sav. Inst. V. Enslin, 46 Mo. 200; Trigg v. Read, 5 Humph. (Tenn.) 529; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219; Snelson v. State, 16 Ind. 29. 13. Valley Railroad Co. v. Iron Co., 46 Ohio St. 44, 18 N. E. 4;-!6, 1 L. R. A. 412. 518 Cb. IG IMPLIED CONTRACTS. §§ 449,450 edge of the facts rendering it void, lie cannot recover back the money paid." So if a party voluntarily, and witboiit mistake of fact, pays as interest a greater amount than is legally en- forceable, but not usurious, the appropriation thus made by the parties will not be disturbed, but will stand as a voluntary payment. ^^ § 450. Payment under mistake of fact. — The general rule is tliat where a person makes a payment to another under such a mistake as to material facts as to create a belief in the existence of a liability to pay, which does not really exist, he can recover it back as money had and received for his use.^ But money paid under a mistake of facts cannot be re- claimed where the party paying it has derived a substantial benefit from the payment; nor where the party to whom paid received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. The right to remedy in such cases turns upon the question as to whether the party receiving the money paid by mistake can in good faith retain it.^ Money paid under a mistake of fact to which the plaintiff's negligence has in no way contributed, may be recovered back by him,^ and it is no defense to an action brought to recover it 14. Powell V. Supervisors, 46 Wis. 455; Glenn v. Shannon, 12 S. Car. 210, 50 N. W. 1013; Mayor v. Lef- 570; Hazard v. Ins. Co., 7 R. I. fernan, 4 Gill (Md.) 425, 45 Am. 429; Citizens' Bank v. Grafflin, 31 Dec. 145 and note; Babcock v. Fond Md. 507, 100 Am. Dec. 60; McDon- du Lac, 58 Wis. 230, 16 N. 625; aid v. Lj-neh, 59 Mo. 350. Irvine v. Hanlin, 10 Serg. & R. 2. Norton v. Marden, 15 Me. 45, (Pa.) 219; Mills v. McDaniels, 59 32 Am. Dec. 132; Moore v. Ed- Mo. App. 331. dowes, 2 Ad. & El. 133; Glenn v. 15. Carson v. Cochran,' 52 Minn. Shannon, 12 S. Car. 570; Foster v. 67, 53 N. W. 1130. See, also, Holt Kirby, 31 Mo. 496; Brisbane v. V. Thomas, 105 Cal. 273, 38 P. 891; Dacres, 5 Taunt. 143, 163; Farmer Richey v. Clark, 11 Utah, 467, 40 v. Arundel, 2 W. Bl. 824; Pensa- P. 717; Edwards v. Hardware cola, etc. R. R. Co. v. Braxton, 34 Manuf. Co., 59 Minn. 178, 60 N. Fla. 471. W. 1097. 3. Blancliard v. Ix)w, 164 Mass. 1. Mayor v. New York, 63 N. Y. 118, 41 N. E. 118. .19 450 OPERATION OF CONTRACTS. Oh. 16 that the mistake arose through the plaintiff's negligence, if such negligence caused the defendant no harm.* And in gen- eral, to defeat an action for money voluntarily paid under a mistake of fact, it is not sufficient that the plaintiff might have known the facts had he availed himself of the means of infor- mation possessed by him,^ provided the defendant has not changed his position so that he cannot be placed in statu quo.^ But if the money is paid with the intention that the person receiving shall have the money at all events, irrespective of the facts, it cannot be recovered back ;^ or if he has recovered that for which he bargained. And so a bank can recover back from the payee of a check, the amount above the depositor's credit, when the bank supposed the depositor had sufficient funds in the bank to pay the check in fuU.^ Money paid to a bank by the indorser of an instrument, which has been discounted by the bank, and which both sup- posed erroneously was a negotiable promissory note, cannot be recovered back.^ 4. Appleton Bank v. McGilvrey, 4 Gray (Mass.), 518, 64 Am. Dec. 92; Kingston Bank v. Ettinger, 40 N. Y. 391, 100 Am. Dec. 516. 5. Kelly v. Solari, 9 Mees. & Wei. 54; Bell v. Gardiner, 4 Mann. & Gr. 11; Franker v. Little, 24 Kan. 598, 36 Am. Rep. 262; Waite V. Leggett. 8 Coav. (N. Y.) 195, 18 Am. Dec. 441; Wheadon v. Olds, 20 Wend. (N. Y.) 174; Devine v. Ed- wards, 87 111. 177; Alston v. Rich- ardson, 51 Tex. 1; Lyle v. Shinne- barger, 17 Mo. App. 74; Dobson v. Winner. 26 Mo. App. 329; Mc- Cracken v. San Francisco, 16 Cal. 591 ; Douglas County v. Keller, 43 Nebr. 635, 62 N. W. 60 ; Rutherford V. Mclvor, 21 Ala. 750; Koontz v. Bank, 51 Mo. 275; Walker v. Co- nant, 65 Mich. 194, 31 N. W. 780; Lawrence v. Bank, 54 N. Y. 432; Brown v. Road Co., 56 Ind. 110; Compare Wilson v. Barker, 50 Me. 447; Brummitt v. McGuire, 107 N. Car. 351, 12 S. E. 191. 6. Walker v. Conant, 65 Mich. 194, 31 N. W. 786. 7. Troy v. Bland, 58 Ala. 197; Kelly V. Solari, 9 Mees. & Wei. 54; Buffalo V. O'Malley, 61 Wis. 255, 20 N. 913, 50 Am. Rep. 137 and note; McArthur v. Luce, 43 Mich. 435, 5 N. 451, 38 Am. Rep. 204; Bergenthal v. Fiebrantz, 48 Wis. 435. 4 N. 89. 8. Merchants' Nat. Bank v. Bank, 139 Mass. 513, 2 N. E. 89. 9. Alton V. Bank, 157 Mass. 341, 32 N. E. 228, 18 L. R. A. 144, 34 Am. St. Rep. 285. 520 Ch. 10 IMPLIED CONTRACTS. §§ 451, 452 § 451. Agent of both seller and purchaser — Payment of commissions. — One cannot act as agent for both seller and pur- chaser, unless both principals know of and assent to his un- dertaking such agency and receiving commissions from both.^" And so money paid by a principal to his agent for the latter's services in the sale of property may be recovered back, in an action at law, when it appears that such agent has received or was to receive a commission from the other party to the trade or sale for similar services, if it also appears that at the time such principal made the payment he was ignorant of the fact that his agent was agent of the other principal,^^ § 452. Mistake of law. — Where the mistake is of law and not of fact, the payment will be considered as voluntary and can- not be recovered back.^ Thus, where the payment is made with full knowledge of all the facts in the case, ignorance of the law will not give the plaintiff a right of action, he having made payment voluntarily and not under compulsion;^ he cannot recover back though he was not liable upon the debt demanded.^ 10. Holcomb V. Weaver, 136 Mass. Rousmanier, 1 Pet. (U. S.) 1, 8 265; Byrd v. Hughes, 84 111. 174, Wlieat. (U. S.) 174; Price v. Es- 25 Am. Rep. 442; Atlee v. Fink, 75 till, 87 Mo. 378; Norton v. Highley- Mo. 100; 42 Am. Rep. 385 and man, 88 Mo. 621 ; Harralson v. Bar- note; Scribner v. Collar, 40 Mich. rett. 99 Cal. 607, 34 P. 342. 375, 29 Am. Rep. 541. 2. Cook v. Boston, 9 Allen ll.Cannell v. Smith, 142 Pa. St. (Mass.), 393 Benson v. Monroe, 7 25, 21 A. 793, 12 L. R. A. 395 and Cush. (Mass.) 125, 54 Am. Dec. note; Campbell v. Baxter, 41 Neb. 716; Forbes v. Appleton, 5 Cush. 729, 60 N. W. 90. See, also, Kelly (Mass.) 115; Brisbane v. Dacres, 5 V. Solari, 9 Mees. & Wei. 54; Ever- Taunt. 144; Couch v. Kansas City, hart V. Searle, 71 Pa. St. 256; 127 Mo. 436. 30 S. W. 117. See, Raisin v. Clark, 41 Md. 158, 20 Am. also, Campbell v. Clark, 44 Mo. App. Rep. 66 : Farnsworth v. Hemmer, 1 249. Allen (:\Ias9.), 494, 79 Am. Dec. 3. Vandcrbeok v. Rochester, 122 756. N. Y. 285, 25 N. E. 408; Hubbard 1. Gage V. Allen, 89 Wis. 98, 61 v. Martin, 8 Yerg. (Tenn.) 498; N. W. 361 ; Pass v. Grenada Coun- Wayne County v. Randall, 43 Mich, ty, 71 Miss. 426, 14 So. 447; Snell 137, 5 N. 75; Berkhauser v. V. Ins. Co., 98 U. S. 85; Hunt v. Schmitt, 45 Wis. 316, 30 Am. Rep. 521 § 452 OPERATION OF CONTRACTS. Ch. 16 Where the law is unsettled and is in doubt, money paid with full knowledge of the facts, but under mistake of the true con- struction of the law, may be considered in the nature of a compromise, and cannot be recovered back, unless the trans- action be between persons who do not stand on. equal footing,* Hence, a private citizen buying public land, and a receiver of tlie land officer acting under the instructions of his superior, do not stand on an equal footing as to the law governing such transaction ; and money paid by such citizen for land at a higher price than the statute requires, may be recovered back, though paid without objection or protest.^ It must be remembered that the money paid in mistake of law, must be without fraud or mistake of fact, in order that it cannot be recovered.® Where the parties are not on equal terms, the general rule does not apply. Thus, a payment made to a public officer in discharge of a fee or tax illegally exacted, is not such a volun- tary payment as will preclude the party from recovering it back.'^ Where the payment is made under a species of duress, the rule does not apply. Thus, in case where money is paid in excess of what is due in order to prevent a threatened sale of mortgaged property f and so payments made to a common carrier to induce it to do what by law, without them it was bound to do, are not voluntary;® and so illegal interest, paid as a condition to redeem a pledge is a payment by compulsion, and not voluntary;^'' and so illegal fees exacted by a collector, 740; Needles v. Burk, 81 Mo. 3lJ9, Briggs, 2 Denio (N. Y.), 26; Iowa 51 Am. Rep. 251; Langevin v. St. City v. Johnson County, 99 Iowa, Paul, 49 Minn. 189, 51 N. W. 817; 513, 68 N. W. 815. Beard v. Beard, 25 W. Va. 486, 52 7. Swift Co. v. United States, 111 Am. Rep. 219. U. S. 22, 4 S. Ct. 244. 4. Healey v. United States, 29 8. Close v. Pliipps, 7 Man. & Gr. Ct. CI. 115. oSfl. 5. Healey v. United States, 29 9. Parker v. Railway Co., 7 Man. Ct. CI. 115. & Gr. 253. 6. Scotland County V. Ewing. 116 10. Astley v. Reynolds, 2 Mo. 129, 22 S. W. 476; Snelson v. Strange, 915; Tutt v. Ide, 3 State, 16 Ind. 31 : Supervisors v. Blatehf. C. C. 249. 522 Ch. 16 IMPLIED CONTRACTS. §§ 452, 453 though sanctioned by a long continued usage and practifo in the office, under a mistaken construction of the statute, even when paid without protest, may be recovered back, on the ground that the payment was compulsory and not voluntary." To make a payment involuntary, it is not necessary that it should be by actual violence or any physical duress. It is suf- ficient if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in con- sequence of that illegality, and without being able to regain possession of his property, except by submitting to the pay- ment. ^^ To make the payment a voluntary one, the parties should stand upon an equal footing. ^^ If a person illegally claims a fee colore officii, the payment is not voluntary so as to preclude the party from recovering back." And one who is compelled to pay more than his shares of the fees of a tax collector in order to prevent a tax sale of his land, may recover the excess in assumpsit. ^^ § 453. Mistake of law — In equity. — Mistakes of law cannot generally be admitted as a ground of relief in equity, but this rule is not of universal application.^ And where there is a mixed mistake of law and of fact, relief in equity will be granted.^ Upon the general question whether, where all the facts are known, or may with ordinary diligence be known, money paid under a mistake of law may be recovered back, the authorities conflict. 11. Ogden V. Maxwell, 3 Blatchf. 14. Morgan v. Palmer, 2 Barn. C. C. 319. & Cr. 729; Steele v. Williams, 8 12. Maxwell v. Griswold, 10 Exch. 625. How. (U. S.) 242; American Steam- 15. Benton v. Goodale, 66 N. H. ship Co. V. Young, 89 Pa. St. 186, 424, 30 A. 1121; Cardigan v. Page, 33 Am. Rep. 748; Cunningham v. 6 N. H. 182. Monroe, 1.5 Gray (Mass.), 471; 1. Baker v. Massey, 50 Iowa, Carew v. Rutherford, 106 Mass. 1, 399; Iowa City v. Johnson County, 8 Am. Rep. 287; Preston v. Boston, 99 Iowa, 513, 68 N. W. 815. 12 Pick. (Mass.) 17. 2. Griffith v. To^\^^ley, 69 Mo. 13. Beckwith v. Frisbie. 82 Vt. 13, 33 Am. Rep. 476. 559, 566. 523 §§ 453, 454 OPEEATION OF CONTRACTS. Ch. 16 It is held by some courts that iiioney paid under a mistake either of law or of fact, is no defense to an action brought to re- cover it, that the mistake arose through the plaintiff's negligence, if such negligence caused the defendant no harm.^ And this is especially so where the party making the payment acts in a fiduciary capacity. So a recovery cannot be prevented in all cases where money is paid under a mistake of law.* The rule to entitle the plaintiff to recover money paid under mistake of fact is : 1. The money must he paid by one under a mistake of his rights and his duty, and be such as he is under no moral or legal obligation to pay. 2. The recipient of the money must have no right in good conscience to retain it.^ And so where an administrator, under a mistake of law, makes an over payment of a claim, he can recover back the surplus.^ § 454. Compromise. — If, in a settlement of mutual accounts, one party thereto allows, without being induced by fraud, a certain sum of money by way of compromise of a doubtful claim, he cannot recover it back.^ If the settlement is the result of a compromise, it is, in absence of fraud, binding and conclusive. It is sufficient to render the settlement valid if there are questions in dispute between the parties which have been decided.^ Where the settlement is made by both parties without fraud on the one side, or ignorance or misunder- 3. Northrop v. Graves, 19 Conn. Northrop v. Graves, 19 Conn. 548, 548, 50 Am. Dec. 264; Culbreath v. 50 Am. Dec. 268. See, also, Cul- Culbreath, 7 Ga. 64, 50 Am. Dec. breath v. Culbreath, 7 Ga. 64, 50 375; Stevens v. Goodsell, 3 Met. Am. Dec. 375; Stevens v. Goodsell, (Mass.) 34 Rogers v. Weaver, 5 3 Met. (Mass.) 34; Rogers v. Wea- Ham. (Ohio) 536; Beatty v. Dufief, ver, 5 Ham. (Ohio) 536; Beatty v. 11 La. Ann. 74; Mansfield v. Dufief, 11 La. Ann. 74. Lynch, 59 Conn. 320, 22 A. 313, 12 6. Mansfield v. Lynch, 59 Conn. L. R. A. 285. 320, 22 A. 313, 12 L. R. A. 285. 4. Mansfield v. Lynch, 59 Conn. 1. Stuart v. Sears, 119 Mass. 143. 320, 22 A. 313, 12 L. R. A. 285. 2. Barlow v. Ins. Co., 4 Met. 5. Mansfield v. Lynch, 59 Conn. (Mass.) 270; Kerr v. Lucas, I 320, 22 A. 313, 12 L. R. A. 285; Allen (Mass.), 279. 524 Ch. 16 IMPLIED CONTRACTS. §§ 454-456 standing of any material facts on the other side, it is con- clusive.^ But if there be a mistake as to a material fact, which was believed to be true, and on the belief in the truth the com- promise was made, then the payment of money may be recov- ered back, the law creating an implied contract to repay.'' § 455. Duress. — Payment by a person prima facie liable for a debt under a threat by the creditor to sue therefor unless it is paid, is not a payment under duress, and it cannot be recov- ered back f for it is not duress to threaten to or actually take advantage of the usual remedy for the enforcement of a debt or obligation;® and this is true even if the claim be an illegal one.^ But where an arrest is made for the purpose of extortion, money paid by the person arrested while under duress by im- prisonment and threats, may be recovered though there is probable cause and the warrant was irregular,^ as for money had and received. § 456. Payment of taxes and assessments. — Where one pays an illegal demand for taxes with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity, or unless to release his person or property from detention, or to prevent an immediate seizure of his per- son or property, such payment must be deemed voluntary and cannot be recovered back;^ and the fact that the party at the 3. Diebold, etc. Lock Co. v. 7. Preston v. Boston, 12 Pick. Barnes, 53 111. App. 144. (Mass.) 12; Holt v. Thomas, 105 4. Rheel v. Hicks, 25 N. Y. 289. Cal. 273, 38 P. 891. 5. Holt V. Thomas, l05 Ciil. 273, 8. Fillman v. Kyon. 168 Pa. St. 38 P. 891. 404. 32 A. 89. 6. Brumaguire v. Tillinghast, 18 1. Dixon County v. Beardshear, Cal. 271, 79 Am. Dec. 176; Bucknall 38 Neb. 389, 56 N. W. 990; Hopkins V. Story, 46 Cal. 587; Mayor v. v. Butte, 16 Mont. 103. 40 P. 865; Leflferman, 4 Gill (Md.), 425, 45 First Nat. Bank v. Mayor, 68 Ga. Am. Dec. 145 and note; Weber v. 120, 45 Am. Rep. 476; Rogers v. Kerkendall, 44 Neb. 766, 63 N. W. Greenbush. 58 Me. 392, 4 Am. Rep. 35. 525 § 456 OPERATION OF CONTRACTS. Ch. 16 time of making the payment files a written protest, does not make the payment involuntary.^ And money voluntarily paid by the holder of a tax sale certificate for subsequent taxes on the property, cannot be re- covered back, in the absence of fraud and mistake.^ But M^here money has been paid on an assessment which is void for want of jurisdiction/ or where authority to levy a tax is wholly wanting,^ the money may be recovered back. And so when a party not liable to taxation is called upon peremp- torily to pay taxes, and he can save his property and himself in no other way than by paying the illegal demand, he may pay under protest and then recover the money so paid.® But where the assessment is illegal and the city has no means to enforce it, or of seizing the person or property of the party, or of selling his property and giving the purchaser a color of title, and the party knows the facts, and pays the demand, he cannot recover it back.' 292; Bowman v. Boyd, 21 Nev. 281, 30 P. 823; Richardson v. Denver, 17 Colo. 398, 30 P. 333; Swift v. Poughkeepsie, 37 N. Y. 511. 2. Wabaunsee County v. Walker, 8 Kan. 431; Union, etc. R. R. Co. V. Dodge County, 98 U. S. 541; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323; Morris v. Mayor, 5 Gill (Md.), 244; Goddard v. Sey- mour, 30 Conn. 394; Garrigan v. Knight, 47 Iowa, 525; Powell v. St. Croix County, 46 Wis. 210, 50 N. W. 1013; Little v. Bowers, 134 U. S. 547, 10 S. Ct. 620; Hopkins V. Butte, 16 Mont. 103, 40 P. 865. 3. Lindsey v. Boone County, 92 Iowa, 86, 60 N. W. 173. 4. Mutual Life Ins. Co. v. New York, 144 N. Y. 494, 39 N. E. 386; Jex V. Mayor, 103 N. Y. 536, 9 N. E. 39. 5. Shoup V. Wills, 2 Idaho, 108, 6 P. 124; Gillette v. Hartford, 31 Conn. 351; Newman v. Supervisors, 45 N. Y. 676. • 6. Manufacturing Co. v. Ames- burg, 17 Mass. 461; Preston v. Bos- ton, 12 Pick. (Mass.) 14; Erskine V. Van Arsdale, 15 Wall. (U. S.) 75; Whitney v. Port Huron, 88 Mich. 268, 50 N. W. 316, 26 Am. St. Rep. 291. 7. Newcome v. Davenport, 86 Iowa, 291, 53 N. W. 232. See, also, Bucknell v. Story, 46 Cal. 595, 13 Am. Rep. 220; Rutledge v. Price County, 66 Wis. 35, 27 N. W. 819. 526 Oh. 16 IMPLIED CONTRACTS. § 457 ARTICLE IV. Receiving Benefits from Another. Section 457. Voluntary Benefits Conferied. 458. Voluntary Acceptance of Benefits. 459. Municipal Corporations. 460. Family Relations — Benefits Received. 461. Services of a Supposed Wife. 462. Extra Services. 463. Corporation's Liability to Its Promoters. 464. Implied Assumpsit — Waiving a Tort. 465. Oral Agreement to Bequeath or Devise Property. 466. Enforcement in Equity and in Law. 467. Parol Contract. 468. Necessaries for Wife. 469. Necessaries for Minor — Money Furnished by Another. 470. Father Liable for Necessaries for Minor Children. 471. Necessaries for Insane Person. 472. Liability of Insane Person's Estate. 473. Part Performance — Quantum Meruit. 474. Wilful Default— Wages. 475. Default not Wilful — Personal Service. 476. Promise to Marry. 477. Substantial Performance. 478. Order Given by One and Filled by Another. 479. Part Performance Under a Void Contract. 480. Under no Obligations to Perform — Part Performance. 481. Failure to Pay in a Manner Agreed to. 482. Part Performance — Rescission of Contract. 483. Work and Labor. 484. Physician's Services. 485. Burial of the Dead. § 457. Voluntary benefits conferred — Any act done for the benefit of another Avithout his acceptance is to be deemed a vol- untary act, for which no action can be sustained, unless after knowing of the service the person benefited promises to pay for it.^ 1. New Orleans, etc. R. R. Co. v. son, 20 Johns. (N. Y.) 29, 11 Am. Turcan, 46 La. Ann. 155, 15 So. Dec. 238 and note; Glenn v. Savage, 187; Cahill v. Hall, 161 Mass. 512, 14 Oreg. 567; Reus Glass Factory 37 N. E. 513; Bartholomew v. Jack- v. Reed, 5 Cow. (N. Y.) 587; Lynch 52Y § 457 OPERATION OF CONTRACTS. Ch. 16 A party has a right to select and determine with, whom he will contract, and cannot have another person thrust upon him without his consent. In all cases of express contract a party may contract with whom he pleases ; the sufficiency of his reasons for so doing cannot be inquired into. But there are cases where the law will imply a promise to pay by a party Avho protests he will not pay ; but those cases are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to pay. If a man absolutely refuses to fur- nish necessaries to his wife and minor children, the law will compel him to do it, and imply a promise against his protes- tations. But such promise will never be implied against his protest, except in cases where the law itself imposes a duty; and this duty must be a legal duty. Hence, a promise will not be implied against the express declaration of a person upon whom no legal duty is imposed by law.^ And so a promise will not necessarily be implied from the mere fact of having denied a benefit.^ Because there is no privity of contract between the parties, and without such privity the possession and use of property of another will not support implied assumpsit.* Thus, where an ice company can no longer perform its con- tract with a consumer, and sells its business to another com- pany who, unknown to the consumer, furnishes the ice, the consumer is not liable for the ice so furnished by the grantee of the original company with whom he had a contract.^ If he V. Bogy, 19 Mo. 170; Bailey v. 3. Boston Ice Co. v. Potter, 123 Gibbs, 9 Mo. 45; Jones v. Wilson, Mass. 28, 25 Am. Rep. 9. See, also, 3 Johns. (N. Y. ) 434; Beach v. Schmaling v. Tomlinson, 6 Ti^unt. Vanderbergh, 10 Johns. (N. Y.) 147 ; Boulton v. Jones, 2 Hurl. & N. 360; Shaw v. Graves, 79 Me. 166, 8 564. A. 884; White v. Jones, 14 La. Ann. 4. Hills v. Snell, 104 Mass. 173, 681; Potter v. Carpenter, 76 N. Y. 6 Am. Rep. 216; Boston Ice Co. v. 157; Jared v. Vanvleet, 13 111. App. Potter, 123 Mass. 28. 334. 5. Boston Ice Co. v. Potter, 123 2. Earle v. Coburn, 130 Mass. Mass. 28, 25 Am. Rep. 9. See, also, 596; Wliiting v. Sullivan, 7 Mass. Orcutt v. Nel-^on, 1 Gray (Mass.), 107. 536; Hardman v. Booth, 1 Hurl. & 528 Ch. 16 IMPLIKD CONTRACTS. §§ 457, 458 had received notice of the change and then continued to take the ice as delivered, a contract would be implied.^ § 458. Voluntary acceptance of benefits. — Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them.^ The services must be known and accepted by the re- cipient, to have the law imply a promise on his part to pay for them.^ But where one agrees to work for another for nothing, he may afterwards refuse to work. But if he voluntarily per- forms his promise and does the work, he cannot afterwards compel payment for the work,^ A party knowingly receiving the benefits from another, creates a promise to pay for them.* If a party voluntarily accepts and avails himself of valu- able services rendered for his benefit, when he has the option to accept or reject them, even if there is no distinct proof that they were rendered by his authority or request, a promise to pay for them may be inferred. His knowledge that the bene- fits were valuable, and his exercise of the option to avail him- self of them, justify this inference.^ C. 803; Humble v. Hunter, 12 Q. B. 4. Ford v. Ward, 26 Ark. 360; 310; Robson v. Drummond, 2 Barn. St. Patrick's Church v. Abst, 76 111. & Ad. 303; Winchester v. Howard, 252; Hearst v. Hite, 20 W. Va. 183; 97 Mass. 303, 93 Am. Dec. 93 ; Boul- Jones v. Smith, 76 Pa. St. 408 ; ton V. Jones, 2 Hurl. & N. 564. Moreland v. Davidson, 71 Pa. St. 6. Mudge V. Oliver, 1 Allen 371; Dougherty v. Whitehead, 31 (Mass.), 74; Orcutt v. Nelson, 1 Mo. 255; Disbrow v. Durand, 54 N. Gray (Mass.), 536; Mitchell v. La- J. L. 343, 24 A. 545, 33 Am. St. page. Holt, N. P. 253. Rep. 678; Farmington Academy v. 1. Disbrow v. Durand. 54 N. J. Allen, 14 Mass. 172, 7 Am. Dec. L. 343, 24 A. 545, 33 Am. St. Rep. 201 ; McCrary v. Ruddick, 33 Iowa, 678. 521 ; Scully v. Scully, 28 Iowa, 543. 2. Scully V. Scully, 28 Iowa, 548. 5. Spencer v. Traflford, 42 Md. 3. Doyle v. Trinity Church, 133 20; Day v. Caton, 119 Mass. 513, 20 N. Y. 372, 31 N. E. 221. See, also. Am. Rep. 347; Wallace v. Schaub, Force v. Haines, 2 Harr. (N. J.) 81 Md. 594, 32 A. 324. 385; Watson v. Ledoux, 8 La. Ann. 68. 52« §§ 458-460' OPERATION OF CONTRACTS. Ch. 16 As between persons not members of tbe same family, the mere fact of rendering services useful to the defendant will furnisb p7'ima facie evidence of their acceptance, and in the absence of some proof to the contrary, will raise an obligation to pay him what they were worth, there being no proof of special value.® § 459. Municipal corporations. — A city is liable for gas fur- nished it, with knowledge of the council, though no ordinance or resolution was passed authorizing it to be furnished.^ And so when a city, restricted by its charter to contract in writing, and to create no general liability, is nevertheless liable, upon an implied contract, to compensate a party who has furnished gas for use upon its streets, when a specific tax has been levied and collected for that purpose, which cannot be lawfully di- verted to any other. ^ Cities and private corporations must account for money or other property applied by their officers to authorized uses, although the money or property so applied was received under an agreement which was wholly void.^ The doctrine of implied contract applies to cases where money or other property is received under such circumstances that the general law, independent of express contract, imposes an obligation upon the city to do justice with respect to the same. If the city obtain money of another by mistake or with- out any contract entered into by it on the subject, from gen- eral obligation to do justice, it is liable, on an implied con- tract, to account for it. § 460. Family relations — Benefits received. — ^Where the services are rendered by members of a family, living as one household, to each other, there is no implication of a contract of payment from the mere rendition and acceptance of the 6. Spencer v. TrafFord, 42 Md. 20. 2. Gas Light Co. v. Memphis, 93 See, also, Wallace v. Schaub, 81 Md. Tenn. 612, 30 S. W. 25. 594, 32 A. 324. 3. Hitchcock v. Galveston, 96 U. 1. Gas Company v. San Fran- S. 350. Cisco, 9 Cal. 453. 530 Ch. 16 IMPLIED CONTRACTS. § 460 services. In order to rccoror for the services, the plaintiff must affirmatively show, cither that an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation.^ The household family relationship is presumed to abound in recip- rocal acts of kindness and good-will, which tend to the mutual comfort and convenience of the members of the family, and gratuitously performed. This relationship prevents the impli- cation of a promise to pay for services. And this exception should not be limited to mere propinquity of kindred. This family relation should be extended to remote relations, and even to persons between whom there is no tie of blood. ^ Most of the cases treat of this subject only with the relation of parent and child, or the cases where one party stands in loco parentis.^ But the rule should not be limited to that relation, for it contemplates children, parents, grandparents, brothers, step-children and other relations.^ This rule should apply to all cases where the parties stand in the relation to each other 1. In re Schmidt's Estate, 93 Cohen, 2 Mack. D. C. 227; In re Wis. 120, 67 N. W. 37; Plate v. Kessler's Estate, 87 Wis. 660, 59 Durst, 42 W. Va. 63, 24 S. E. 580, N. W. 29, 41 Am. St. Rep. 74. 32 L. R. A. 404; Callahan v. Wood, 2. Disbrow v. Durand, 54 N. J. 118 N. Car. 752, 24 S. E. 542; L. 343, 24 A. 545, 33 Am. St. Rep. Tank v. Rohweder, 98 Iowa, 154, 678. 67 N. W. 106; Brown v. Buttle, 80 3. Windhand v. Deeds, 44 Iowa, Me. 162, 13 A. 583; Collyer V. Coll- 98; Smith v. Johnson, 45 Iowa, yer, 113 N. Y. 442, 21 N. E. 114; 308; Thorp v. Bateman, 37 Mich. Collar V. Patterson, 137 111. 403, 68, 26 Am. Rep. 487; Ryan v. 27 N. E. 604; Heffron v. Brown, Lynch, 9 Mo. App. 18; Mariner v. 155 111. 322, 40 N. E. 583; Disbrow Collins, 5 Harr. (Del.) 290; Kegan V. Durand, 54 N. J. L. 343, 24 A. v. Malone, 62 Iowa, 208, 17 N. 461 ; 545, 33 Am. St. Rep. 678; Harris Harris v. Currier, 44 Vt. 468; V. Currier, 44 Vt. 468 ; Wilson v. Stone v. Todd, 49 X. J. L. 274, 280 : Wilson, 52 Iowa, 44, 2 N. 615; Kendall v. Kendall, 36 N. J. Eq. 91, X'Uiier V. Mowry, l6 R. I. 424, 28 99; RidgAvay v. English, 22 N. J. L. A. 606; Greenwell v. Greenwell, 28 409. Kan. 675; W^illace v. Schaub, 81 4. Updike v. Titus, 13 X. J. L. Md. 599, 32 A. 324; Hayos v. ^U-- lol. Connell, 42 Ind. 285: Cohen v. 531 § 460 OPERATION OF CONTRACTS. Ch. 16 of support on one side and services on the otlier.^ The rule should extend beyond parent and child, and to those parties where close family relationship is shown to exist.^ Where it is shown that the person rendering the services is a member of the family of the person served and receiving support therein, either as a child or 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 of the party served must be shown, or such facts and circumstances as will authorize the jury to find that the services were rendered in the expectation by one receiving and by the other making compensation therefor.^ Thus, the rule should apply as between brother-in-law and sister-in-law f and where there is a household relation, it should embrace not only remote kindred, but also those who stand in the place of kindred.^ But some of the courts speak of this relation as restricted to cases where such a relationship in blood existed. Thus, the relation of granddaughter has been deemed not alone suf- ficient to rebut the presumed obligation to pay for services rendered in the grandfather's family.^" In Pennsylvania presumption that the services were gratuitous, applies only in the case of parent and child. In all other cases, there must be evidence beyond the relationship that the creation of no debt was intended." 5. Homer v. Webster, 33 N. J. 9. Disbrow v. Durand, 54 N. J. L. 411. L. 343, 24 A. 545, 33 Am. St. Rep. 6. Robinson v. Eastman, 2 Denio 678. (N. Y.), 152; Scully v. Scully, 28 10. Hanser v. Sane, 74 N. Car. Iowa, 548; Kegan v. Malone, 62 552. Iowa, 208, 17 N. 461; Hall v. Finch, 11. Gerz v. Demarra, 162 Pa. St. 29 Wis. 278, 9 Am. Rep. 559; 530, 29 A. 761, 42 Am. St. Rep. Bundy v. Hyde, 50 N. H. 116. 842. See, also, Perkins v. Has- 7. Scully V. Scully, 28 Iowa, 548; brouck, 155 Pa. St. 494, 26 A. 695; Kegan v. Malone, 62 Iowa, 208, 17 Smith v. Milligan, 43 Pa. St. 107; N. 461. Miller's Appeal, 100 Pa. St. 568, 45 8. Bundy v. Hyde, 50 N. H. Am. Rep. 394; Stafford v. Devereux, 116. 166 Pa. St. 277, 31 A. 87. 532 Cll. IG IMPLIED CONTRACTS. § 461 § 461. Services of a supposed wife. — ^Where a woman mar- ries a man and lives with him as his wife during his life, she cannot recover for services rendered as his housekeeper, the hus- band having a wife when he married her, thus rendering the last marriage void ; no implied contract was created to pay her.^ The actual relations and the circumstances under which the work was performed, negatived any implication of an agree- ment or promise that it should be paid for.^ Her remedy was by an action of tort for the deceit in inducing her to marry him by false representations, or by a false promise.^ There are cases where the same transaction may constitute a cause of action both in contract and in tort, and a party may have an election to pursue either remedy. But a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them, upon which assumpsit can be maintained.* If a man and woman mutually agree to live together as husband and wife witliout being married, after separation the woman cannot recover for services rendered in keeping house in that relation.^ In this case the services rendered was in furtherance, and for the continuation of an unlawful rela- tion, and no implication arises that the woman was to receive pay for her services. If there had been an express promise for payment, the court could not enforce it,^ because the parties living together were violating the principles of morality and chastity as well as of positive law.^ 1. Cooper V. Cooper, 147 Mass. (Mass.), 102; Ferguson v. Carring- 370, 17 N. E. 892, 9 Am. St. Rep. ton, 9 Barn. & Cr. 59. 721. 5. BrowTi v. Tuttle, 80 Me. 162, 2. Robbins v. Potter, 11 Allen 13 A. 583. (Mass.), 588, 98 Mass. 532. 6. White v. Buss, 3 Cush. 3. Blossom V. Barrett, 37 N. Y. (Mass.) 448; Gilmore v. Woodcock, 434, 97 Am. Dee. 747. 69 Me. 118, 31 Am. Rep. 255. 4. Jones v. Hoar, 5 Pick. (Mass.) 7. Brown v. Tuttle, 80 Me. 162, 285; Brown v. Holbrook, 4 Gray 13 A. 583. 533 §§ 462, 463 OPERATION OF CONTRACTS. Ch. 16 § 462. Extra services. — When a party is working under a salary, lie is expected to perform all services incident to his employment for the compensation agreed upon. The mere fact that valuable services are rendered outside of the party's employment, does not make his employer liable for them. To render the party liable as a debtor under an implied promise to pay for extra service, it must be shown that the services were valuable, and that they were rendered under such cir- cumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who receives and is benefited by them would and ought to understand that com- pensation was to be paid for them.^ Thus, in the repairing of a bank building, the president superintended the work of repairs and then demanded pay for extra services, and it was held that there was no implied prom- ise that the corporation would pay him for such work, and that he could not recover;^ such services can be paid for only when there is an express contract to that effect.^ § 463. Corporation's liability to its promoters. — A corpora- tion cannot incur a debt before its incorporation. Hence, a claim for money expended and time employed for the organ- ization of a corporation before its incorporation, is not a debt which the corporation can be made to pay.'* So, also, a cor- poration after its organization is not liable for payment of debts contracted previously thereto, without express promise to pay them; but acceptance and receipt of the benefits of that for which they were incurred,^ is a ratification equivalent to the execution of an original contract as is generally held by the courts.^ 1. Sawyer v. Bank, G Allen 5. Rockford, etc. E. R. Co. v. (Mass.), 207. Sage, 65 111. 328, 16 Am. Rep. 587; 2. Pew V. Bank, 130 Mass. 391. Outhouse v. Allen, 72 111. 529. 3. Levisee v. Railroad Co., 27 6. Queen City Furniture Co. v. La. Ann. 641. Crawford, 127 Mo. 356, 30 S. W. 4. Marchaud v. Association, 26 163. La. Ann. 389. 534 Cll. 16 IMPLIED CONTRACTS. § 464 § 464. Implied assumpsit — Waiving a tort. — The right to •waive a tort, and to recover on an implied assumpsit, is not to recover damages for the tort, but to recover the value of that which the wrongdoer has appropriated to his own use, the law implying a promise to pay its reasonable value. But a mere naked trespass, although creating a liability for damages, can- not be the basis of an implied assumpsit.^ The right to waive a tort, and to recover as on implied as- sumpsit, has generally been extended to cases where there has been a wrongful conversion of property of one person to the use of another, whether sold or not by the latter, and also to cases where a trespasser has severed trees from the land in possession of the ovsmer, or has quarried stone thereon, and has afterwards taken the trees or stone away, converting the same to his own use, so that trover or replevin would lie.^ This implied promise is available in the case of personal property severed from the land as already stated.^ This rule extends to those cases where property has been sev- ered from real estate by a wrongdoer, carried from the free- hold, and converted to his o^vn use; and the rightful o\^'ner may sue and recover its value as on an implied contract, al- though it may not be in harmony with the principles of re- formed system of pleading. No reason exists why it should not include cases arising out of a trespass, to the extent that the property severed and carried away is beneficial to the tres- passer, except when it would involve a trial of title to real 1. Downs V. Finnegan, 58 Minn. 547; Deitz v. Sutcliffe, 80 Ky. 650; 112, 59 N. W. 381, 49 Am. St. Rep. Lehman v. Schmidt, 87 Cal. 15, 25 488. P. 161; Walker v. Duncan, 68 Wis. 2. Evans v. Miller, 58 Miss. 120; 624, 32 N. W. 689; Aldine Manuf. Logan V. Wallis, 76 N. ' Car. 416; Co. v. Barnard, 84 Mich. 632, 48 N. Toledo, etc. R. R. Co. v. Chew, 67 W. 280; Blalock v. Phillips, 38 Ga. HI. 378; Downs v. Finnegan, 58 216; Isaacs v. Hermann, 49 Miss. Minn. 112, 59 N. W. 381, 49 Am. St. 449; Norden v. Jones. 33 Wis. 600, Rep. 488; Newton Manuf. Co. v. 14 Am. Rep. 782; Andrews v. Bank, White, 53 Ga. 395 ; Wilson v. Force. 26 N. Y. 298. 6 Johns. (N. Y.) 110, 5 Am. Dec. 3. Rowell v. Rees, 7 Adol. & El. 195; Goodwin v. Giffis, 88 N. Y. 426; Halleck v. Mixer, 16 Cal. 574; 629: Morford v. White. 53 Ind. Budd v. Hiler, 27 N. J. L. 43. 535 §§ -164, 465 OPERATION OF CONTliACTS. Ch. 16 estate.^ The right to waive the tort and to recover as an im- plied assumpsit is an exception to the principles of code plead- ing, and there must be no extension beyond what is allowed at common law.^ But formerly, and now in many jurisdictions, it was held that the right to waive a tort and to sue on the implied as- sumpsit must be limited to cases where goods and chattels have been wrongfully taken and sold by the wrongdoer. The ov^mer might then disaffirm the act, and treating him as a wrongdoer, sue in trespass, or he might affirm the act, and treating the wrongdoer as an agent, claim the benefit of the transaction.* But this former rule is too restricted; because under it a party cannot waive the tort and recover the value of the goods or chattels, unless the party converting has sold them and re- ceived the money, or has taken them for the purpose of sale and there be no evidence to rebut the presumption of sale and the receipt of the money.^ § 465. Oral agreements to bequeath or demise property. — The rule is well settled, that where services are rendered gratu- itously or without any view of compensation, but in the hope of receiving a legacy or devise from the person to whom the services are rendered, the person rendering the services can recover no compensation on an implied contract.^ 4. Downs V. Finnegan, 58 Minn. hem Borough v. Ins. Co., 81 Pa. St. 112, 59 N. W. 381, 49 Am. St. Kep. 445; Strother v. Butler, 17 Ala. 488; Evans v. Miller, 58 Miss. 120. 733; Fergaison v. Carrington, 9 5. Hurley v. Lamoreaux, 29 Barn. & Cr. 59; Rodgers v. Maw, Minn. 138, 12 A. 447; Downs v. 15 Mees. & Wei. 444; Smith v. Finnegan, 582 Minn. 112, 59 N. W. Baker, L. R. 8 C. P. 350; Oughton 381, 49 Am. St. Rep. 488; Rus- v. Seppings, 1 Barn. & Ad. 241; sell V. Bell, 10 Mees. & Wei. 340. Gilmore v. Wilbur, 12 Pick. 6. Sandren v. Railroad Co., 79 (Mass.) 120, 124, 22 Am. Dec. 410. Mo. 278 ; Winchell v. Noyes, 23 Vt. 7. Bethlehem Borough v. Ins. Co., 303; Allen v. Ford, 19 Pick. 81 Pa. St. 445. (Mass.) 217; Androscoggin Water 1. Osborn v. Guy's Hospital, 2 Power Co. v. Metcalf, 65 Me. 40; Strange, 728; Le Sage v. Couss- Noyes v. Loring, 55 Me. 408; Paine maker, 1 Esp. 187; Little v. Daw- V. McGinchey, 56 Me. 50; Bethle- son, 4 Dall. (U. S.) Ill; Davison 536 Gh. 16 IMPLIED CONTKACTS. §§ 465, 466 But verbal agreement may be made between a father and his child that the former will give the latter his real property, in case he shall support the former until death. If it appears that the child's services were rendered to his father not gratu- itously, but upon a distinct understanding between them that the child should be compensated for his services, and that the agreement was that upon the father's death, provided the child continued to serve the father during his life, he shall receive the real estate of the father, such an agTcement is valid in law,^ and may be enforced in equity.^ The part of the agreement which the child is to perform is to be performed in praesenti, and that part to be performed by the father is to be performed in futuro. Hence, there can be no uncertainty about the agreement, because it is definite and certain in every particular.* § 466. Enforcement in equity and in law. — A court of equity will decree the specific performance of an agreement between father and child that the latter shall have the former's real estate at his death provided the latter supports the former, upon the recognized principles by which it is governed in the exer- cise of this branch of its jurisdiction.^ Courts of equity will decree the specific performance of agi'eements connected with testamentary or other settlements.^ V. Davison, 13 N. J. Eq. 246; Lee 4. Johnson v. Hubbell, 2 Stockt. V. Lee, 6 Gill &, J. (Md.) 316; Ken- (N. J.) 332. See, also, Graham v. nard v. Whitson, 1 Houst. (Del.) Wickham, 1 DeG. J. & S. 474; 36; Compare Baxter v. Gray, 4 Hammersley v. De Biel, 12 CI. & F. Scott, N. R. 374, 3 Man. & Gr. 771. 45; De Biel v. Thomson. 3 Beav. 2. Davison v. Davison, 13 N. 469. J. Eq. 246; Jacobson v. Le Grange, 5. Rivers v. Rivers, 3 Dessau. 3 Johns. (N. Y.) 199; Paterson v. (S. Car.) Eq. 195, 4 Am. Dec. 609; Paterson, 13 Johns. (N. Y.) 379. Johnson v. Hubbell, 2 Stockt. (N. 3. Gary v. James, 2 Dess. (S Car.) Eq. 185, 2 Am. Dec. 686 Johnson v. Hubbell, 2 Stocht. (N J.) 332, 66 Am. Dec. 773 and note Davison v. Davison, 13 N. J. Eq J.) 332, 66 Am. Dec. 773 and note. 6. Izard v. Izard, 1 Dessau. (S. Car.) Eq. 116; Walpole v. Oxford, 3 Ves. 402, 7 Term R. 138; Lewis V. Maddocks, 6 Ves. 150; Fortescue 246. v. Hannah, 19 Ves. 71; Jones v. 537 §§ 466-468 OPERATION or contracts. Ch. 16 In the United States an action at law may, after the party dies without fulfilling his agreement, be maintained against the estate or executor to recover the value of the ser- vices.^ And if the will provides only in part for payment of services, an action is maintained against the estate for the residue.^ § 467. Parol contract. — ^Although the agreement is by parol, and land is to be conveyed, if there is a part performance of such a character as, upon the principles recognized by a court of equity, will take a parol ag'reement out of the statute of frauds, then there is nothing peculiar about an agreement of this kind to exclude it from the operation of those principles.^ It may be enforced though in parol, by a decree of specific performance by the promisee to the extent of irretrievably alter- ing his position, so that it would be a fraud upon him to re- fuse the performance of the other part of the contract;^ part performance takes the case out of the operation of the statute of frauds.^ § 468. Necessaries for wife. — The law implies a contract that a husband will supply his wife with necessaries. It is Martin, 3 Anst. 882; Padmore v. 1. Johnson v. Hubbell, 2 Stockt. Gunning, 9 Sim. 644; Moorhouse (N. J.) 332, 56 Am. Dec. 773 and V. Colvin, 9 Eng. L. & Eq. 136; note; Fuchs v. Fuchs, 48 Mo. App. Logan V. Weinholt, 7 Bligh, 53, 54, 18; Lee's Appeal, 53 Conn. 363, 2 2 Story on Eq. 786; Johnson v. A. 758; McKeegan v. O'Neil, 22 S. Hubbell, 2 Stockt. (N. J.) 332, 66 Car. 454; Whitstine v. Wilson, 104 Am. Dec. 773 and note; Mundorff N. Car. 385, 10 S. E. 471; Com- V. Kilbourn, 4 Md. 459; Parsell v. pare Ellis v. Cary, 74 Wis. 176, 42 Stryker, 41 N. Y. 480; Robinson v. N. W. 252, 4 L. R. A. 55, 17 Am. Mandell, 3 Cliflf. C. C. 169. St. Rep. 125. 7. Taylor v. Wood, 4 Lea 2. Wright's Appeal, 155 Pa. St. (Tenn.), 504; Frost v. Tarr, 53 64, 25 A. 877; Hale v. Hale, 90 Va. Ind. 390; Martin v. Wright, 13 728, 19 S. E. 739; Pingrey on Real Wend. (N. Y.) 460, 28 Am. Dec. Estate, 1531. 468; Shakespeare v. Markham, 10 3. Davison v. Davison, 13 N. J. Hun (N. Y.), 311. Eq. 246. As to the amendment of 8. Reynolds v. Robinson, 64 N. the bill for variance in the proof, Y. 589. As to specific performance, see Bellows v. Stone, 14 N. H. 175; see Pingrey on Real Property, 1533. Story on Eq. PI. 394, n. 2. 538 Oil. 16 IMPLIED CONTRACTS. §§ 468, 469 an authority conferred on the wife to do for him when neces- sary, what the law and duty require him to do, and which he neglects or refuses to do for himself, and is applicable as well to supplies furnished to the wife "when she is sick, insensible or insane, and to the care of her lifeless body, as to contracts expressly made by her.^ The necessaries for a married infant are such as pertain to himself and family ; and those of a married infant to whom the law has intrusted his estate are such as pertain to himself, his family, and his estate; the control of the estate creates in its owner the capacity to make such contracts as are necessary to secure its preservation and beneficial enjoyment.^ An infant is liable for the necessaries furnished his wife.' § 469. Necessaries for manors — Money furnished by an- other. — If a creditor furnishes money to a minor, which he uses to purchase necessaries, and the creditor shows its appli- cation for the purchase of necessaries, the minor, in equity, will be liable ; or wdiere a person lends money to a minor to pay a debt incurred for necessaries, and the debt is actually paid, he will stand in equity in the place of the original creditor, and the minor will be liable to him.* 1. Cunningham v. Reardon, 98 Phelps v. Worcester, 11 N. H. 51; Mass. 538, 96 Am. Dec. 670; Tur- Grace v. Hale, 2 Humph. (Tenn.) ner v. Frisby, 1 Strange, 168; Can- 27, 36 Am. Dec. 296; Cunningham tine V. Phillips, 5 Harr. (Del.) 428; v. Irwin, 7 Serg. & R. (Pa.) 247, Read v. Legard, 6 Exch. 636 ; Chap- 10 Am. Dec. 458 and note ; Carpen- ple V. Cooper, 13 Mees. & Wei. 252. ter v. Carpenter, 45 Ind. 142; 2. Chapman v. Hughes, 61 Miss. Peters v. Fleming, 6 Mees. & Wei. 339. 42; Burghart v. Hall, 4 Mees. & 3. Williams v. Harrison, Holt, Wei. 727. 359; Clowes v. Brooke, -2 Strange, 4. Harris v. Lee, 1 P. Wm. 482 1101; Hands v. Slaney, 8 Term R. Jlarlow v. Pittsrield, 1 P. Wm. 558 578; Beeler V.Young, 1 Bibb (Ky.), Darby v. Boucher, 1 Salk. 279 519; Stanton v. Wilson, 3 Day Ellis v. Ellis, 1 Ld. Raj-m. 344 (Conn.), 37, 3 Am. Dec. 255; Price Clarke v. Leslie, 5 Esp. 28; Conn V. Sanders, 60 Ind. 310; Bent v. v. Coburn, 7 N. H. 368, 26 Am. Dec. Manning, 10 Vt. 225; Mason v. 746; Price v. Sanders, 60 Ind. 310. Wright, 13 Met. (Mass.) 306: 539 § 470 OPERATION OF CONTEACTS. Cll. 16 § 470. Father liable for necessaries for minor children. — - A father is entitled by law to the services and earnings of his minor children. This right is founded upon the obligation which the law imposes upon him to nurture, support and edu- cate them during infancy and early youth, and it continues until their majority, when the law determines that they are capable of providing for themselves.^ This is upon the ground of agency.^ But a minor who voluntarily abandons his father's house, without any fault of the parent, carries with him no credit on his father's account even for necessaries.^ So, also, when necessaries are furnished by the town to minor children between whom and their father, though they live apart, the parental and filial relations still subsist, such supplies are considered in law supplies indirectly furnished the father, because he is bound in law to support them.'' But in 'New Hampshire and Vermont it is held that a parent is under no legal obligation, independent of statutory provi- sion, to maintain his minor child, and that in the absence of any contract on the part of the father, he cannot be held except under the pauper laws of those States.^ During the life of the father, the mother, in the absence of statutory provisions, or decree relating thereto, not being en- titled to the services of their minor children, is not bound by law to support them,® 1. Benson v. Remington, 2 Mass. Ryder, 11 Paige (N. Y.), 185, 42 113; Dawes v. Howard, 4 Mass. 98; Am. Dec. 109. Nightingale v. Withington, 15 2. Reynolds v. Sweetser, 15 Gray Mass. 274, 8 Am. Dec. 101; State (Mass.), 80; Hall v. Wier, 1 Allen V. Smith, 6 Me. 462, 464, 20 Am. (Mass.), 261; Camerlin v. Palmer Dee. 324 and note; Dennis v. Clark, Co., 10 Allen (Mass.), 539. 2 Cush. (Mass.) 252; Reynolds, v. 3. Weeks v. Merrow, 40 Me. 151; Sweetser, 15 Gray (Mass.), 80; Angel v. McLellan, 16 Mass. 27. Garland v. Dover, 19 Me. 441, 36 4. Garland v. Dover, 19 Me. 441. Am. Dec. 732; Van Valkenburgh 5. Kelley v. Davis, 49 N. H. 187, V. Watson, 13 Johns. (N. Y.) 480, 6 Am. Rep. 499; Gordon v. Potter, 7 Am. Dec. 395; Furman v. Van 17 Vt. 348. Sise, 56 N. Y. 435, 15 Am. Rep. 6. Whipple v. Dow, 2 Mass. 415 441; People v. Moores, 4 Denio (N. Dawes v. Howard, 4 Mass. 97 Y.), 518, 47 Am. Dec. 272; In re Weeks v. Merrow, 40 Me. 151 540 Ch. 16 IMPLIED CONTRACTS. §§ 470, 471 This liability of the father would seem to cease when a decree of divorce is rendered dissolving the marriage relations and committing the custody of the minor children to the mother. For when such a decree is made then the father will have no right, either to take them into his custody and sup- port them or employ any one else to do so, without the con- sent of the mother.'' But some courts hold that the father is liable for the support of his minor children after their custody is decreed to the mother.* If the custody of the children is not decreed to the wife, then the father is liable for the support of his minor children.' The mother may maintain an action against the father for the necessary support of their minor children, furnished by her after an absolute divorce, no decree for custody or alimony having been made.^*^ A father may contract with his minor child and pay him wages ;^^ he may emancipate the child,^^ give him his earn- ings, ^^ goods and other chattels.^^ § 471. Necessaries for insane persons. — Insane persons are liable for necessaries furnished them.^ If one furnishes an insane person necessaries, which are required for his support or comfort, and suitable to his means, condition, and habits of life, and which he has not already in his keeping, the seller Gilley v. Gilley, 79 Me. 292, 9 A. 10. Gilley v. Gilley, 79 Me. 292, 623, 1 Am. St. Rep. 307. 9 A. 623, 1 Am. St. Rep. 307. 7. Hancock v. Merrick, 10 Gush. 11. Titman v. Titman, 64 Pa. St. (Mass.) 41; Brown v. Brightman, 480, 3 Am. Rep. 608; Wilson v. Mc- 136 Mass. 187; FincH v. Finch, 22 Millan, 62 Ga. 16, 35 Am. Rep. Conn. 410. 115 and note. 8. Holt V. Holt, 42 Ark. 495; 12. Farrell v. Farrell, 3 Houst. Courtwright v. Courtwright, 40 (Del.) 633. Mich. 633; Plaster v. Plaster, 47 13. Monaghan v. School Dist., 38 HI. 290. Wis. 100. 9. Finch v. Finch, 22 Conn. 411; 14. Smith v. Smith, 7 Carr. & P. Hancock v. Merrick, 10 Cush. 401. (Mass.) 41; Brown v. Brightman, 1. Baxter v. Portsmouth, 5 Barn. 136 :Mass. 107; Husband v. Hus- & Cr. 172; Thompson v. Leach, 3 band, 67 Ind. 583, 33 Am. Rep. 101. Mod. 310. 541 §§ 471-473 OPEKATION OF CONTRACTS. Ch. 16 can recover of the insane party upon a promise implied hj law, what the supplies are reasonably worth. ^ Insane persons stand in the position as minors and are liable for necessaries.^ Such is the rule of the common law. § 472, Liability of insane person's estate. — The estate of the insane is legally, as well as equitably, liable for necessaries furnished in good faith, and under circumstances justifying their being so furnished.* Other contracts with lunatics not strictly for necessaries, which have been fully executed, and on which a considera- tion or benefit to the lunatic has been given, may be within the reason of this exception, where the transaction is shown to be perfectly fair and reasonable, at least, so far as to allow the recovery back of the consideration given, or to prevent a rescission by the lunatic or his representatives, without restor- ing the consideration, when the restoration is practicable. The liability of a lunatic in such cases is upheld, not on the ground of contract, but on the fact that the lunatic has received and enjoyed an actual benefit from the contract.^ § 473. Part performance — Quantum meruit. — Many English and American cases hold that no recovery can be had for labor 2. Leach v. Marsh, 47 Me. 548, County Nat. Bank v. Moore, 78 Pa. 74 Am. Dec. 403; Pearl v. Mc- St. 407, 21 Am. Rep. 24 and note. Dowell, 3 J. J. Marsh. (Ky.) 658; 5. Gore v. Gibson, 13 Mees. & Sawyer v. Lufkin, 56 Me. 308. VVel. 626; Lincoln v. Buckmaster, 3. Seaver v. Phelps, 11 Pick. 32 Vt. 658; Brown v. Jodrell, 3 (Mass.) 304, 22 Am. Dec. 372; Car. & P. 30; Dane v. Kirkwall, 8 Leach v. Marsh, 47 Me. 548, 74 Car. & P. 675; Niell v. Morley, 9 Am. Dec. 503. See, also, Williams Ves. 478; Selby v. Jackson, 6 Beav. V. Wentworth, 5 Beav. 325; Rich- 192; Matthiesson v. McMahon, 38 ardson v. Strong, 13 Ired. (N. Car.) N. J. L. 536; Wilder v. Weakley, 106, 55 Am. Dec. 430. 34 Ind. 181; Behrans v. McKenzie, 4. McCrillis v. Bartlett, 8 N. H. 23 Iowa, 333, 92 Am. Dec. 428; Ab- 569; Sawyer v. Lufkin, 56 Me. 308; hott v. Creal, 56 Iowa, 175, 9 N. La Rue v. Gilkyson, 4 Pa. St. 375, 115; Sims v. McLure, 8 Rich. Eq. 45 Am. Dec. 700; Baxter v. Ports- (S. Car.) 286, 70 Am. Dec. 196. mouth, 2 Car. & P. 178; Lancaster 542 Oh. 16 IMPLIED CONTRACTS. § 473 or material furnished uuder special contract, unless the con- tract has heen performed, or its performance has been dis- pensed with by the otlier party.^ The hardship of this rule upon the contractor who has unde- signedly violated his contract, and the inequitable advantage it gives to the party who receives and retains the benefit of his labor and materials, has led to its qualification so that now the weight of authority is clearly in favor of allowing compensa- tion for services rendered and material furnished, under a special contract, but not in entire conformity with it, provided the deviation from the contract was not wilful and that the other party has availed himself of, and been benefited by, such labor and materials ; and as a general rule the amount of such compensation is to depend upon the extent of the benefit con- ferred, having reference to the contract price for the entire work.^ There is a line of cases that holds that when a contract re- mains open and unperformed, though in slight particulars, no recovery can be had either upon it or upon an implied contract.^ Another line of cases holds that recovery upon such and similar contracts will not be refused for mere technical, inad- vertent or unimportant deviations from the terms, but that wherever there has been a substantial compliance with the contract, recovery may be had thereon, a proper allowance 1. Cohn V. Plumer, 88 Wis. 622, liam v. Bryant, 139 Mass. 110, 28 60 N. W. 1000; Succession of Jack- N. E. 691; Blood v. Wilson. 141 son, 47 La. Ann. 1089, 17 So. 598; Mass. 25, 6 N. E. 362; Kelly v. Dawes v. Hubbard. 41 Wis. 408; Bradford, 33 Vt. 35; Corwin v. Palm V. Railroad Co., 18 111. 217; Wallace, 17 Iowa, 374; White v. United States v. Behan, 110 U. S. Oliver, 36 Me. 92; Dermott v. Jones, 339, 4 S. Ct. 81. 20 How. (U. S.) 220; Smith v. 2. Hay ward v. Leonard, 7 Pick. School Dist., 20 Conn. 312; Blakes- (Mass.) 181, 19 Am. Dec. 268 and lee v. Holt, 42 Conn. 226; Lucas v. note; Smith v. Meeting House. 8 Gadwin. 3 Bing. N. C. 104; Pinches Pick. (Mass.) 178; Moulton v. Mc- v. Church, 55 Conn. 183, 10 A. 264. Owen, 103 Mass. 591; Reid v. Scit- 3. Ellis v. Hamlen, 3 Taunt. 53; uate, 7 Allen (Mass.), 141; Atkins Munro v. Butt, 8 El. & Bl. 738. V. Barnstable, 97 Mass. 428; Den- 543 §§ 473, 474 OPERATION OF CONTRACTS. Ch. 16 or reduction from the contract price being made for defi- ciency.^ One class of cases holds that a recovery should be had in such cases whenever the work and materials are of any value to the owner of the lands to which they have been affixed, and that the proper measure of damages is the contract price, de- ducting therefrom so much as the building was worth, less on account of variations from the contract,^ Another class holds that while a contractor guilty of fraud or having wilfully abandoned the work unfinished, cannot re- cover in any form of action, he may recover in assumpsit when he has, in good faith, done work which, though not done according to the contract, has been accepted by the owner.® In each class of cases acceptance is the basis of recovery. One class requires the acceptance to be actual ; this assumes it to exist in all cases where value has been conferred upon the property, and there has been no gross or fraudulent viola- tion of the contract; where such a violation occurs, actual acceptance is necessary to recovery.^ § 474. Wilful default — Wages. — The weight of authority is that if a party wilfully abandons a special contract before it is fully performed, he can recover nothing for what he has done.-'' So where a contractor abandons work before its comple- tion, he cannot recover in an action upon the contract, unless 4. Glacius v. Black, 50 N. Y. 145, (Mass.) 267, 13 Am. Dec. 425; Gill 10 Am. Rep. 449; Cutter v. Close, v. Vogler, 52 Md. 663; Moritz v. 5 Car. & P. 337; Dallman v. King, Larsen, 70 Wis. 569, 36 N. W. 331; 4 Bing. N. C. 105; Stodhard v. Lee, Hansell v. Erickson, 28 111. 257; 3 Best & S. 364. Seheible v. Klein, 89 Mich. 376, 50 5. Hajrward v. Leonard, 7 Pick. N. W. 857; Olmstead v. Beale, 19 (Mass.) 180; Smith v. Church, 8 Pick. (Mass.) 528; Miller v. God- Pick. (Mass.) 178. dard, 34 Me. 102, 56 Am. Dec. 638; 6. Dermott v. Jones, 2 Wall. (U. Kryer v. Lippel, 42 Minn. 6, 43 N. S.) 1. W. 484; Gillespie Tool Co. v. Wil- 7. Bozarth v. Dudley, 44 N. J. L. son, 123 Pa. St. 19, 16 A. 36; Peter- 304, 43 Am. Rep. 373. son v. Neazer, 46 Minn. 468, 49 N. 1. Denmead v. Coburn, 15 Md. W. 245; Hapgood v. Shaw, 105 44; Faxon v. Mansfield, 2 Mass. Mass. 276. 147; Stark v. Parker, 2 Pick. 544 Ch. 16 IMPLIED CONTRACTS. § 474 he was prevented from completing it by the wrongful action of the defendant.^ In general, to i-ecover on a special contract, the plaintiff must show full performance on his part or a release by his employer or some justifying cause for non-performance.^ But there are many decisions which hold that one who has performed services for another under a special contract may recover for the value of the services rendered, though he may not have fully completed his term of service, subject to the right of the employer to deduct any damages he may have sustained by the breach of the contract on the part of the em- ployee.'* This doctrine has gradually been adopted by the courts. It stands on justice, and is right on principle, though opposed to the common law rule, which holds that the ser- vant cannot recover, unless he shows that he has performed the contract in full. If a single woman engages to work and take care of a man during his life and then to receive compensation, and agrees not to marry, the agreement not to marry is only incident to the main contract which is valid, and she can recover from the estate of the promisor after his death. ^ If there is no pro- 2. Scheible v. Klein, 89 Mich. 66; McAflferty v. Hall, 24 Iowa, 376, 50 N. W. 857. 382 ; Byerlee v. Mendel, 39 Iowa, 3. Eldridge v. Rowe, 2 Gil. (111.) 382; Duncan v. Baker, 21 Kan. 99; 98, 43 Am. Dec. 41; Swanzey v. Parcell v. McComber, 11 Neb. 209, Moore, 22 111. 63, 74 Am. Dec. 134; 7 N. 529, 38 Am. Rep. 366 and note; Thrift V. Payne, 71 111. 408. See, Bedow v. Tonkin, 5 S. Dak. 432, 59 also, Lantry v. Parks, 8 Cow. (N. N. W. 222; Hillyard v. Crabtree, 11 Y.) 63; Catlin v. Tobias, 26 N. Y. Tex. 264, 62 Am. Dec. 475; Cham- 217, 84 Am. Dec. 183; Champlin v. blee v. Baker, 95 N. Car. 98; Car- Rowley, 18 Wend. (N. Y.) 187; roll v. Welch, 26 Tex. 147; Hellis Timberlake v. Thayer, 71 Miss. 279, v. Chapman, 36 Tex. 1; Epperly v. 14 So. 446, 24 L. R. A. 231 and Bailey, 3 Ind. 73; Fenton v. Clark, note; Newcomb a\ Ins. Co., 51 Fed. 11 Vt. 560; Ryan v. Dayton, 25 Rep. 725. Conn. 188, 65 Am. Dec. 560; Wolf 4. Britton v. Turner, 6 N. H. v. Gerr, 43 Iowa, 339. See, also, 481, 26 Am. Dec. 713; Pixler v. Lamb v. Bralaski, 38 Mo. 51; Pat- Michols, 8 Iowa, 106, 74 Am. Dec. note v. Sanders, 41 Vt. 66, 98 Am. 298; Lomen v. Grossman, 8 Iowa, Dec. 564. 325; McClay v. Hedges, 18 Iowa, 5. King v. King, 63 Ohio St. 363, 545 §§ 474, 475 OPEEATION OF CONTRACTS. Ch. 16 vision against her marriage, and she does marry, then it is a question of fact whether she has broken her contract, and whether she can recover if discharged by her employer.® But if the contract had provided that the woman should remain unmarried, then there is no reason why, if she marries, it will not rescind the contract. On general principles, an employer may provide in the contract that the employee shall remain single while engaged in the service. § 475. Default not wilful — Personal service. — Contracts for personal service, whether of the contracting party or of a third person, requiring skill, and which can only be performed by the particular individual named, are not in their nature, of absolute obligation under all circumstances. Both parties must be supposed to contemplate the continuance of the ability of the person whose skilled services are the subject of the con- tract, as one of its conditions. Contracts for personal services are subject to this implied condition, that the person shall be able at the time appointed to perform them, and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished.^ If the default is caused by death, sickness or by prevention of the other party, or by any cause for which he is not re- sponsible, which excuses the performance, then he may recover in an action of quantum meruit on an implied promise to pay for work already completed.^ 59 N. E. Ill, 52 L. R. A. 157, 81 Murray, 3 Johns. (N. Y.) 167; Am. St. Rep. 635. Robinson v. Davison, L. R. 6 Exch. 6. Edgecomb v. Buckliout, 146 268; Dexter v. Norton. 47 N. Y. 62, N. Y. 332, 40 N. E. 991, 28 L. R. A. 7 Am. Rep. 415; Spalding v. Rosa, 816. 71 N. Y. 40, 27 Am. Rep. 7; Lake- 1. People V. Manning, 8 Cow. (N. man v. Pollard, 43 Me. 463; Green Y.) 297, 18 Am. Dec. 451 and note; v. Gilbert, 21 Wis. 395; Martus v. Jones V. Judd, 4 N. Y. 411; Clark Houck, 39 Mich. 431, 33 Am. Rep. V. Gilbert, 26 N. Y. 279, 84 Am. 409. Dec. 189; Wolfe v. Howes, 24 Barb. 2. Shulz v. Johnson, 5 B. Mon. (N. Y.) 174, 20 N. Y. 197; Gray v. (Ky.) 497; Pinches v. Church, 55 546 Ch. 16 IMPLIED CONTRACTS. §§ 476, 477 § 476. Promise to marry. — The usual and legitimate objects to be sought to be attained by agreement to marry, are the comfort of association, the consoHium vitae. And if either party should thereafter become, by the act of God and without fault on his own part, unfit for such a relation and incapable of performing the duties incident thereto, then the law will excuse a non-compliance with the promise,^ § 477. Substantial performance. — It is held by many courts that where a contract has been substantially though not strictly performed, where the party failing to perform according to the terms of the contract has not been guilty of a voluntary abandonment or wilful departure from the contract, has acted in good faith, intending to perform the contract according to its stipulations, but has failed in a strict compliance with its provisions, and where from the nature of the contract and of the labor performed, the parties cannot rescind, and stand in statu quo, but one of them must derive some benefit from the labor or money of the other, — in such case the party failing to perform his contract strictly may recover of the other, as upon a quantum meruit, for such a sum only as the contract as performed has been of real and actual benefit to the other party, estimating such benefit by reference to the contract price of the whole work.^ If he has performed in good faith and substantially completed the contract, he can recover.^ Conn. 183, 10 A. 264; Yerrinton v. Car. 297; Allen v. Baker, 86 X. Car. Green, 7 R. I. 589, 84 Am. Dec. 578; Dl, decided under a statute. Mooney v. Iron Co., 82 Mich. 263, 1. Dyer v. Jones, 8 Vt. 205; Gil- 46 N. W. 376; Adams v. Crosby, 48 man v. Hall, 11 Vt. 510, 34 Am. Ind. 153; Hubbard v. Belden, 27 Dec. 700; Kelly v. Bradford, 33 Vt. Vt. 645; Harrington v. Iron Works, 85; Blood v. Wilson, 141 Mass. 25, 119 Mass. 82; Stewart v, Loring, 5 6 N. E. 362; Dermott v. Jones, 23 Allen (Mass.), 306, 81 Am. Dec. How. (U.S.) 220; Parker v. Steed, 747; Fuller v. Brown, 11 Met. 1 Lea (Tenn.), 206; Taylor v. Wil- ( Mass.) 440; Scully V. Kirkpatrick, liams, 6 Wis. 363; McMillan v. 79 Pa. St. 324. 21 Am. Rep. 62. Mallay, 10 Neb. 228, 4 N. 1004, 35 a. Pollock on Cont. 370. Com- Am. Rep. 471 and note; Haj^vard pare Hall v. Wright, El., Bl. & El. v. Leonard, 7 Pick. (jNIass.) 181, 746, which is not authority now. 19 Am. Dec. 268 and note; Corwin See, also, Barnes v. Brown, 69 N. v. Wallace, 17 Iowa, 374. Car. 439; Shuler v. Millsap, 71 N. 2. White v. Oliver, 36 Me. 92; 547 §§ 477, 478 OPERATION OF CONTRACTS. Ch. 16 But this doctrine is not accepted in full, but is modified by some courts. The mere fact that a partial performance is beneficial to a party is not enough from which to imply a promise to pay for it. That the doctrine of substantial com- pliance with the contract does not apply when the omissions or departures from the contract are intentional, and so sub- stantial as to be incapable of remedy so that an allowance out of the contract price would not give the owner essentially what he contracted for.^ So in case of a building on land under a contract which the builder fails to complete, or which he completes in a manner not conforming to the contract, so that the owner cannot be charged with the contract price, the mere fact of the building remaining on the land, and that the owner resumed possession and enjoys the fruits of the labor, is not such an acceptance as alone will imply a promise to pay for it; for the posses- sion of the land necessarily involves possession of the build- ings in their existing state, and the owner has no option of rejecting them.'* § 478. Order given by one and filled by another. — To sup- port a recovery for goods sold and delivered, there must be a contract, either express or implied, between the persons that ordered and the one who supplied the goods. Where goods ordered of one person are supplied by another, the acceptance and use of the goods without notice that they have been so supplied will not create that privity of contract between the person ordering the goods and the one who thus supplies them, which is essential to support an implied assumpsit.-^ Lucas V. Godwin, 3 Bing. N. C. 18 Wend. (N. Y.) 187; Munro v. 773 ; Blakeslee v. Holt, 42 Conn. Butt, 8 El. & Bl. 738. 226; Pinches v. Church, 55 Conn. 4. Munro v. Butt, 8 EI. & BI. 738. 183, 10 A. 264. See, also, Bozarth v. Dudley, 44 3. Elliott V. Caldwell, 43 Minn. N. J. L. 304, 43 Am. Rep. 378; 357, 45 N. W. 845; Smith v. Brady, Miller v. Phillips, 31 Pa. St. 218. 17 N. Y. 173, 72 Am. Dec. 442; 1. Hills v. Snell, 104 Mass. 173, Catlin V. Tobias, 26 N. Y. 217, 84 6 Am. Rep. 216; Boston Ice Co. v. Am. Dec. 183; Champlin v. Rowley, Potter, 123 Mass. 28, 25 Am. Rep. 548 Cll. 16 IMPLIED CONTRACTS. § 478 If the person ordering the goods receives notice before the goods are appropriated or converted that they have been thus furnished by another, and is also notified that they are furnished upon such terms as impart that the person supplying the goods contemplated a sale upon terms stated, and the person who sent the order afterwards receives and appropriates them, he there- by assents to and satisfies the filling of the order, and such assent and ratification relate back and give the order the same effect as if it had been originally given to the person who filled it^ If a vendee receives a part of the goods purchased from another, and retains them after a failure of the vendor to sup- ply the rest of the goods, the law implies a contract and he must pay for them.^ But this rule is not adopted by all the courts. Thus, in "New York, where goods are received and used by the vendee under a contract for the delivery of a specified quantity, the quantity delivered being less than that required by the con- tract, such breach is a bar to an action by the vendor for the price of the goods delivered.* Such a contract is entire and calls for an entire performance, and until performance is made or tendered there is no liability on the part of the defendant; where the vendor refused to perform the contract, without ex- cuse, the vendee is not boimd to return what he has received, nor can he be compelled to pay for a part performance.^ The vendee under such a contract has a right to expend the goods delivered as required in his business, without waiting for the expiration of the time for delivery of all the goods to see whether the vendor will fully perform his contract, and 9; Boulton v. Jones, 2 Hurl. & N. dale v. Wetherell, 9 Barn. & Cr. 564. 386. 2. Orcutt V. Nelson, 1 Gray 3. Shipton v. Casson, 5 Barn. & (Mass.), 536; Mudge v. Oliver, 1 Cr. 378; Oxendale v. Wetherell, 9 Allen (Mass.), 74; Wellaner v. Fel- Barn. & Cr. 386. lows, 48 Wis. 105, 41 N. 114; 4. Catlin v. Tobias, 26 N. Y. 217, Barnes v. Shoemaker, 112 Ind. 512, 84 Am. Dec. 183. 14 N. E. 367. See, also, Shipton v. 5. Smith v. Brady, 17 N. Y. 173, Casson, 5 Barn. & Cr. 378; Oxen- 72 Am. Dec. 442. 549 §§ 478, 479 OPERATION OF CONTRACTS. Ch. 16 such use is no waiver of his defense in case of the vendor's breach of contract.® § 479. Part performance under a void contract. — An action may he maintained for the reasonable value of work done under a void contract, as the law will imply a contract for the pay- ment of a reasonable compensation for such work.^ And so, though a parol contract for the conveyance of land for ser- vices to be rendered may not be enforced, an action may be maintained to recover the value of the services performed under it, if services are rendered in good faith and the vendor accepts them, the vendee may recover on a quantuyn meruit.^ And so recovery on quantum meruit may be had for labor and services performed under a contract void by the statute of frauds.^ In general, it is held that a party who delivers goods, or conveys land, or renders services for another under a con- tract which is void or unenforceable, but not illegal, may re- cover on a quantum, meruit.* And so where a contract under seal containing mutual cove- nants, and which imposes an obligation upon one party to pay money to the other, but contains no covenant or promise to pay it, the contract having been wholly performed in all other respects, the money may be recovered in an action upon an im- plied promise.^ 6. Catlin v. Tobias, 26 N. Y. N. E. 132; Baker v. Lauterbach, 68 217, 84 Am. Dec. 183. Md. 64, 11 A. 703. 1. Rebman v. Land Water Co., 3. Lapham v. Osborne, 20 Nev. 95 Cal. 390, 30 P. 564; Holland v. 168, 18 P. 881; Smith v. Woodin, Wilson, 76 Cal. 434, 18 P. 412; 20 Ala. 324; Montague v. Garnett, Nugent V. Teachout, 67 Mich. 571, 3 Bush (Ky.), 297; Walker v. 35 N. W. 254; Cadman v. Markle, Shackelford, 40 Ark. 503; Wonset- 76 Mich. 448, 43 N. W. 315; Ellis tier v. Lee, 40 Kans. 367, 19 P. 862; V. Carey, 74 Wis. 176, 42 N. W. Whipple v. Parker, 29 Mich. 369. 252, 4 L. R. A. 55, 17 Am. St. Rep. 4. Cadman v. Markle, 76 Mich. 125. 448, 43 N. W. 315; Ellis v. Gary, 2. King V. Brown, 2 Hill (N. 74 Wis. 176, 42 N. W. 252, 17 Am. Y.), 485; Stevens v. Lee, 70 Tex. St. Rep. 125, 4 L. R. A. 55; Lap- 279, 8 S. W. 40; Schoonover v. ham v. Osborne, 20 Nev. 168, 18 P. Vachou, 121 Ind. 3, 22 N. E. 777; 884. Miller v. Eldridge, 126 Ind. 461, 27 5. Varney v. Bradford, 86 Me. 550 Ch. 16 IMPLIED CONTRACTS. § 480 § 480. Under no obligations to perform — Part performance. — It has been held by numerous decisions that an action will lie to recover back money paid or for services rendered by one party to an agreement which is invalid by the statute of frauds, and which the other party refuses to perform.^ But the plain- tiff must bring himself mthin the rule.^ But if one party abandons the contract after part performance, he cannot re- cover, if the other party is willing to perform.^ And so in many English cases and in many States it is held, as cases already cited show, that money paid on a purchase of land cannot be recovered back, if the vendor is able and willing to carry out the contract of sale, although he may be under no obligation to perform. But this doctrine is not accepted by some of the courts, which hold that money paid under a void contract may be recovered back whether the other party is Avilling to perform or not* But this rule is regarded as harsh and inequitable by the weight of authority, for it is generally held that the defaulting party cannot recover money already paid if the other party stands ready to perform on his part.^ 510, 30 A, 115; Hinckley V. Fowler, .^83; Gahvay v. Shields, 66 Mo. 15 Me. 285. 31:3. 1. Kidder v. Hunt, 1 Pick. 4. Nelson v. Imp. Co., 96 Ala. (Mass.) 328, 11 Am. Dec. 183; Gil- 515, 11 So. 695, 38 Am. St. Rep. let V. Maynard, 5 Johns. (N. Y.) 116; Flinn v. Barber, 64 Ala. 193; 85, 4 Am. Dec. 329; Gray v. Hill, Koch v. Williams, 82 Wis. 186, 52 Ry. & Wood. 420 ; King v. Brown, N. W. 257 ; King v. Welcome, 5 2 Hill (N. Y.), 485; Basford v. Gray (Mass.), 41; Shute v. Dorr, Pearson, 9 Allen (Mass.), 389, 85 5 Wend. (N. Y.) 204; Cowes v. Am. Dec. 764; Williams v. Bemis, Lawson, 16 Conn. 246. 108 Mass. 91, 11 Am. Rep. 318; 5. Coughlin v. Knowles, 7 Met. Parker v. Taintor, 123 Mass. 185. (Mass.) 57, 39 Am. Dec. 759; Col- 2. Riley v. Williams, 123 Mass. lier v. Coates, 17 Barb. (N. Y.) 506. 471; Abbott v. Draper, 4 Denio (N. 3. Kreger v. Leppel, 42 Minn. Y. ), 51; Johnson v. Krassin, 25 6, 43 N. W. 484; Sims v. Hutchins, Minn. 117; Sennett v. Shehan, 27 8 Sm. & M. (Miss.) 331; McKen- Minn. 328, 7 N. 266; Plumme.r v. ney v. Harvie. 38 Minn. 18. 35 N. Buckman, 55 Me. 105; Shaw v. W. 668 ; Greton v. Smith, 33 N. Y. Shaw, 6 Vt. 69 ; Hawley v. Moody, 245 ; Abbott v. Inskip, 29 Ohio St. 24 Vt. 605. 59; Philbrook v. Belknap, 6 Vt. 551 §§ 481, 482 OPERATION OF CONTRACTS. Ch. 16 § 481. Failure to pay in a manner agreed to. — If services are rendered, to be paid for in a certain way which is not en- forceable, upon refusal to pay in the manner agreed upon, the one performing such services is entitled to compensation in money for what such services are reasonably worth. ^ Thus, if one party performs services in payment of land, which con- tract is contrary to the statute of frauds, and the land is not conveyed, then the party performing the services can recover a reasonable compensation in money for his services.^ And so if a contract is void under the statute of frauds, the grantor may recover of the grantee the value of the property conveyed.^ The action in such case does not rest upon the con- tract except as there arises an implied contract to pay the value of that which the party sought to be charged received upon the faith of the repudiated void promise from the grantor.* § 482. Part performance — Rescission of contract. — If a party enters into a contract and then the other party aban- dons it without cause, the former may recover for the work. Thus, if a party is engaged to write a treatise for another for publication, and then the latter abandons the publication, the former may rescind and recover without tendering the treatise.^ So when the plaintiff has performed, but the defendant refuses to pay, the plaintiff has an election either to stand upon the special contract and recover for its breach, or to treat it as re- scinded, and recover the value of his services as if the special contract had not been made.^ And if the contract is voidable, 1. Shane v. Smith, 37 Kans. 55, 5. Plance v. Colburn, 8 Bing. 14 P. 477. 14. 2. Stone v. Stone, 43 Vt. 180. 6. Williams v. Bemis, 108 Mass. 3. Robinson v. Raynor, 28 N. Y. 91, 11 Am. Rep. 318; Brown v. 494; Reed v. McConnell, 133 N. Y. Railroad Co., 36 Minn. 236, 31 N. 425, 31 N. E. 22; Henning V. Miller, W. 941; Medbury v. Watrous, 7 83 Hun (N. Y.), 403, 31 N. Y. S. Hill (N. Y.), 110; Ex parte Mac- 878, 64 N. Y. St. 667. lure, L. R. 5 Ch. App. 737; Siefel 4. Henning v. Miller, 83 Hun (N. v. Ins. Co., 84 Pa. St. 47; Keys v. Y.), 403, 31 N. Y. S. 878, 64 N. Y. Harwood, 2 C. B. 905; Drew v. St. 667. Claggett, 39 N. H. 431; Lawrence 552 Ch. 16 IMPLIED CONTRACTS. §§ 482, 483 the party may rescind and recover for his services. Thus, a special contract bv a minor for services is voidable, and if he avoids it, he may recover upon a quantum meruit^ as if no con- tract had been made.' And so where a minor goes on a whaling voyage, he may avoid the contract by desertion during the voy- age, and then recover on a quantum meruit for his services.^ But if the contract proves beneficial to the minor and is exe- cuted on both sides, it is not voidable by the minor.® In such cases the commencement of the action to recover the value of the services, is a sufficient notice of his election to sue on the implied contract though he has an action on the special contract for its breach.^" § 483. Work and labor. — When a party performs work for another with the latter's knowledge and assent, and it is ac- cepted, the law construes the acceptance of the work to be an implied contract therefor.^ If there is no special contract, but the services are rendered and the other party accepts the benefit of the sei*\'ices rendered by the other, then the law estab- lishes an implied contract on which he is entitled to recover what he proves the services reasonably worth.^ A part o^wner of a business may engage for a salary to con- duct the affairs of the concern, in such a manner that the law will imply a contract that he is to be paid for his services.' So where services are rendered an old man who is sick and in V. Taylor, 5 Hill (N. Y.), 114; 1. Hood v. League, 102 Ala. 228, Graves v. White, 87 N. Y. 463; 14 So. 572; McClary v. Railroad Oaffney v. Hayden, 110 Mass. 137, Co., 102 Mich. 312, 60 N. W. 695; 14 Am. Rep. 580. Mancy v. Hart, 11 Wash. 67, 39 P. 7. Moses V. Stone, 2 Pick. 268; Kiser v. Halladay, 29 Oreg. (Mass.) 332; Gaffney .v. Hayden, 338, 45 P. 759; Howard v. Gobel, 110 Mass. 137, 14 Am. Rep. 580. 62 111. App. 497: Joseph v. :Machine 8. Vent V. Osgood, 19 Pick. Co., 99 Ala. 47, 10 So. 327. (Mass.) 572. 2. Nichols v. Vinson, 9 Houst. 9. Stone v. Dennison, 13 Pick. (Del.) 274; Fish v. Stamping Co., (Mass. 1, 23 Am. Dec. 654. 58 111. App. 663. 10. Lawrence v. Taylor, 5 Hill 3. Xickerson v. Spindell 1 64 (N. Y.), 107, 114, 115; Graves v. Mass. 25, 41 N. E. 105. White, 87 N. Y. 463; Graham v. Holloway, 44 111. 385. 553 §§ 483-485 OPEKATION OF CONTKACTS. Ch. 16 need of special care, his estate is liable for reasonable com- pensation, though there was no contract for the same.* But not every case of services implies a compensation. Thus, in cases of a flood, as in those of conflagration, services ren- dered voluntarily to preserve another man's property from de- struction, are presumed to be gratuitous and give no cause of ,a;ctibn.^ So where a person lends a horse to another, it does not of itself authorize the borrower to make him answerable for its keep or improvement.® !Nor will a suit lie against a husband by a solicitor for services to the wife in defending a divorce suit. The only remedy is in equity on an application in the divorce proceedings by the wife for alimony and coun- sel fees.'^ § 484. Physician's services. — If a physician should be called, in an emergency, to prescribe for an unconscious person, whose immediate attention was necessary to save the patient's life, and who expected compensation, the law would imply a contract for payment by the patient.^ But a physician who is called by a third person to attend to an injured employe, cannot recover from the employer on an implied promise.^ And a master who requests a physician to perform services for his servant does not impliedly promise to pay for them, since he is under no legal obligation to do so.^ § 485. Burial of the dead. — ^The dead must be buried. And in case those to whom this duty belongs are absent or neglects to perform it, any other person may perform this duty and then recover, as on an implied contract, his reasonable compen- 4. Dannenhauer v. Browne, 47 7. Westcott v. Hinckley, 56 N. J. La. Ann. 341, 16 So. 827. L. 343, 29 A. 154. 5. New Orleans, etc. R. R. Co. v. 1. Bishop on Cont. 231; Richard- Turcan,46La. Ann. 155, 15 So. 187; son v. Strong, 13 Ired. (N. Car.) Compare Watson v. Le Doux, 8 La. 106, 55 Am. Dee. 430. Ann. 68, 28 Am. Dec. 129. 2. Malone v. Ice Co., 88 Wis. 542, 6. Cahill V. Hall, 161 Mass. 512, 60 N. W. 999. 37 N. E. 573. 3. Jesserich v. Walruff, 51 Mo. App. 270. 554 Ch. 16 IMPLIED CONTRACTS. § 485 sation;^ and it makes no difference whether the party incurring this expense is an undertaker or a mere volunteer.^ But only such, necessaries for the funeral of the decedent and care of his estate as cannot properly be postponed until an adminis- trator shall be appointed, are chargeable against the estate.* The modern English doctrine is that if the executor or administrator gives orders for tlie funeral, or ratifies or adopts the acts of another party who has given orders, he makes him- self liable personally and not in his representative capacity.* In tlie United States, it is held by the courts that the ex- ecutor or administrator may be charged in his representative character, and judgment be rendered de bonis testatoris} But this question is regiilated by statutory provisions in most of the States. An executor who pays the debts and funeral expenses of his testator, for the discharge of which there is no personal estate, is entitled in equity to be reimbursed therefor out of the real estate.® The old doctrine seems to be that, upon any promise made after the death of the testator or intestate, the executor or ad- ministrator was chargeable, if at all, as of his own goods, and not in his representative capacity.' But now, in some cases, an executor may be sued in his representative capacity on a promise made by him as executor ; and a judgment had de bonis testatoris. But in these cases, that which constituted the consideration of the promise or the cause of action arose in the lifetime of the testator.^ Ajid an 1. Jenkins v. Tucker, 1 H. Bl. 5. Hapgood v. Houghton, 10 90; Bradshaw v. Beard, 12 C. B., Pick. (Mass.) 154. N. S. 344. 6. Clayton v. Somers, 27 N. J. 2. Ambrose v. Kerrison, 10 C. B. Eq. 230; Green v. Salmon. 8 Ad. & 776. El. 348. 3. Samuel v. Thomas, 51 Wis. 7. Trewinian v. Howell, Cro. 549, 8 N. 3G1. Sop, also, Foley v. Eliz. 91; Hawkes v. Saunders, Bushway, 71 HI. 386. Cowp. 289; Jennings v. Newman, 4 4. Brice v. Wilson, 8 Ad. & El. Term R. 348; Bridgen v. Parkes, 2 349, n. ; Corner v. Shew, 3 Mees. & Bos. & Pul. 424. Wei. 350. 8. Dowse v. Coxe, 3 Bing. 26; 555 § 485 OPEEATION OF CONTEACTS. Ch. 16 action for goods sold and delivered to one as an executor, or for work done for one as executor, charges tlie defendant per- sonally, and not in his representative character.® AETICLE V. Waiving of Tokt. Section 486. Waiving the Tort and Suing on the Implied Contract. 487. When Waiver May Be Made. 488. Doctrine that the Property Must Be Sold. 489. Doctrine that the Property Need Not Be Converted into Money. 490. Counter Claim or Set-off. 491. Privity of Contract. 492. Implied Assvmipsit Lies for Trees or Stone Severed and Converted. 493. When Wrongdoer has Adverse Possession of Land. 494. Right of Agent of Injured Party to Sue in Assumpsit. 495. Several Tort Feasors. 496. Duress. 497. Duress of Goods. 498. Imprisonment. 499. Threats of Imprisonment. 500. Compounding Felony. 501. Voluntary Payment of Money. 502. As to Third Parties with Notice. 503. Receiving Benefits of a Fraud — Agency. 504. Money Received in Payment of Debts. 505. Chattels Wrongfully Obtained. § 486. Waiving the tort and suing on the implied contract. — A mere naked trespass, although creating a liability for damages, cannot be the basis of an action as an implied as- Powell v. Graham, 7 Taunt. 581; Johns. (N. Y.) 349. For the right Ashley v. Ashley, 7 Barn. & Cr. of possession of a dead body, see 444. McQueen v. Fox, 2 Q. B. 246; Wil- 9. Corner v. Shew, 3 Mees. & WeL liams v. Williams, 20 Ch. D. 659; 350. See, also, Foster v. Fuller, 6 Pierce v. Cenultry, 10 R. I. 227, 4 Mass. 58, 4 Am. Dec. 87 ; Sumner v. Am. Rep. 667 ; Hackett v. Hackett, Williams, 8 Mass. 162, 5 Am. Dec. 18 R. I. 155, 26 A. 42, 19 L. R. A. 83; Davis v. French, 20 Me. 21, 37 558, 49 Am. St. Rep. 762; Larson v. Am. Dec. 36; Myer v. Cole, 12 Chase, 47 Minn. 307, 50 N. W. 230, 556 Cll. 16 IMPLIED CONTRACTS. § 486 sumpsit/ The law will not under all circumstances treat that as a contract which, in fact, is a tort.^ An action on implied assumpsit is not to recover damages for the tort, but to recover the value of that which the wrongdoer has appropriated to his own use, the law implying a promise to pay its reasonable value.^ Where no benefits are received by the wrongdoer, the liabil- ity is only for damages for the tort* Where the plaintiff can waive the tort and sue in assumpsit he may bring assumpsit in the common counts. But the rule must be taken with this qualification : That the defendant is not thereby to be de- priced of any benefit, which he could have derived under the appropriate form of action in tort.^ Actions ex delicto and ex contractu in these cases are con- current; but the proof must be the same in each.^ The dec- laration may contain a count for money had and received, and other counts alleging facts of the fraudulent transaction which was the foundation of the suit.^ The declaration may contain special counts setting out the instrument as inducement, and it may allege the utter falsity of its recitations and the fraud of the whole transaction, and contain also the common counts.^ 14 L. R. A. 85 and note, 28 Am. Fuller v. Duren, 36 Ala. 73, 76 Am. St. Rep. 370; Foley v. Phelps, 1 Dec. 318. App. Div. 551, 37 N. Y. S. 471; 3. Downs v. Finnegan, 58 Minn. Renihan v. Wright 125 Ind. 536, 112, 59 N. W. 981, 49 Am. St. Rep. 25 N. E. 822, 9 L. R. A. 514, 21 Am. 488. St. Rep. 249; Younge v. College, 81 4. Braithwaite v. Aiken. 3 N. Md. 358, 32 A. 177, 31 L. R. A. 540 Dak. 305, 56 N. W. 133. and note; Driscoll v. Nichols, 5 5. 2 Greenl. on Ev. 120; Doherty Gray (Mass.), 488; Weed v. v. Shields, 86 Hun, 303, 33 N. Y. S. Walker, 130 Mass. 422, 39 Am. Rep. 497, 67 N. Y. St. 211. 465. 6. Spoor v. Newell, 3 Hill (N. 1. Downs V. Finnegan, 58 Minn. Y.), 308; Doherty v. Shields, 86 112, 59 N. W. 981, 49 Am. St. Rep. Hun, 303, 33 N. Y. S. 497, 67 N. Y. 488. St. 211. 2. Jones v. Hoard, 5 Pick. 7. Steiner v. Clisby, 103 Ala. 181, (Mass.) 285; Balch v. Patten, 45 15 So. 612. Me. 41, 71 Am. Rep. 526; Raymond 8. Burton v. Driggs, 20 Wall. V. Lowe, 87 Me. 329, 32 A. 964; (U. S.) 125. 557 §§ 487,488 OPEEATION OF CONTEACTS. Ch. 16 § 487. When waiver may be made. — ^Where one person has wrongfully taken the money of another, or taken his property and converted it into money, the injured party has a right of action ex delicto for the injury, such as an action of trespass or trover or an action for deceit. But in many cases he may waive the tort and sue on the implied contract and recover the value of the money or property.'^ After the election has been made and the plaintiff sues on the implied contract, he cannot then resort to an action on the tort.^ He cannot waive in part only, but must elect as to the whole transaction.^ § 488. Doctrine that the property must be sold. — It is held by one class of cases that the injured party may waive the tort and sue in assumpsit only when the wrongdoer has sold the property, and received money therefor or money's worth.* 1. Braithwaite v. Aiken, 3 N. Dak. 365, 56 N. W. 133; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782; Barker v. Cory, 15 Ohio, 9; Terry v. Hunger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216 and note, 18 Am. St. Rep. 803; Fratt v. Clark, 12 Cal. 89; Jones v. Hoar, 5 Pick. (Mass.) 290; Mahoon v. Greenfield, 52 Miss. 434; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 121; Neate v. Hard- ing, 6 Exch. 349; Carey v. Free- holders, 47 N. J. L. 181, 1 A. 473; Dashaway Asso. v. Rogers, 79 Cal. 211, 21 P. 742; Smith v. Baker, L. R. 8 C. P. 350; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410. 2. Thompson v. Howard, 31 Mich. 309; Hoffman v. Bughlett, 11 Lea (Tenn.), 549; Brewer v. Spar- row, 7 Barn. & Cr. 310; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721. 3. Lythgoe v. Vernon, 5 Hurl. & N. 180. 4. Jones v. Soar, 5 Pick. (Mass.) 290; Moses v. Arnold, 43 Iowa, 187, 22 Am. Rep. 239; Tuttle v. Camp- bell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. Rep. 652 and note; Mahoon v. Greenfield, 52 Miss. 434; Willet V. Willet, 3 Watts (Pa.), 277; Stearns v. Dillingham, 22 Vt. 624, 54 Am. Dec. 88; Watson v. Stever, 25 Mich. 387; Balch v. Pattee, 45 Me. 41, 71 Am. Dec. 526; Kidney v. Persons, 41 Vt. 386, 98 Am. Dec. 595; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Jones v. Baird, 7 Jones (N. Car.) 152; Steiner v. Clisby, 103 Ala. 181, 15 So. 612. See, also, Mc- Connel v. Delaware, 18 111. 229; Johnson v. Ins. Co., 39 Mich. 33; Magoffin v. Muldrow, 12 Mo. 512; Walker v. Coleman, 81 111. 390, 25 Am. Rep. 285; Bliss v. Thompson, 4 Mass. 488; Howe v. Clancey, 53 Me. 130. 558 Cll. 16 IMPLIED CONTRACTS. §§ 488, 489 All the authorities agree that one who takes and sells per- sonal property belonging to another, without the consent of the owner, is liable for its value in an action upon an implied promise to pay for the property.^ But it is held that where the wrongdoer has the property only temporarily with no intention to keep it permanently, he is only liable for the tort in damages.^ § 489. Doctrine that the property need not be converted into money. — The authorities differ as to whether such an action will lie where the wrongdoer does not sell the property, but retains it for his own use. However, the weight of authority holds that the action will lie Avhere the wrongdoer enriches himself or makes a profit from the property, either by selling it or by retaining it and using it himself, with the intention to convert it permanently.^ The right of the injured party to sue on the implied prom- ise, where the wrongdoer has been benefited by the conversion, whether the property is sold or not, cannot be denied only by creating a fiction. The fact that the property has not been sold by the wrongdoer, when he intends to keep it permanently, is important. The rule should be, that the owner of property converted may waive the tort and sue in assumpsit for the bene- fits received whenever the tort-feasor receives benefits of any kind from the wrong committed, whether by sale or by reten- tion of the converted property, or in any other manner;^ of 5. Reynolds v. Padgett, 94 Ga. Davis, 3 N. H. 384; Stockett v. 347, 19 S. E. 906; Steiner v. Clisby, Watkins, 2 Gill. & J. (Md.) 326, 103 Ala. 181, 15 So. 612. . 20 Am. Dec. 438; Barker v. Cory, 6. Reynolds v. Padgett, 94 Ga. 15 Ohio, 9; Berly v. Taylor, 5 Hill 347, 19 S. E. 906. (N. Y.), 583; Doherty v. Shields, 1. Braithwaite v. Aiken, 3 N. 86 Hun (N. Y.), 303, 33 N. Y. S. Dak. 365, 56 N. W. 133 ; Norden v. 497 ; Downs v. Finnegan, 58 Minn. Jones, 33 Wis. 600, 14 Am. Rep. 112, 59 N. W. 981, 49 Am. St. Rep. 782; Terry v. Hunger, 121 N. Y. 488. 161, 24 N. E. 272, 8 L. R. A. 216 2. Braithwaite v. Aiken, 3 N. and note, 18 Am. St. Rep. 803; Dak. 365, 56 N. W. 133; Pomeroy's Fratt V. Clark, 12 Cal. 89; Hill v. Code Rem. 567, 569. 559 §§ 489-491 OPERATION OF CONTRACTS. Ch. 1Q> course, if the wrongdoer only has the property temporarily and then offers to return it, there is only a tort.^ § 490. Counter-claim or set-off. — By waiving the tort and suing in assumpsit, a counter-claim may be made. One of the sole objects in waiving the tort is often for the purpose of en- abling the injured party to set up his claim as an offset, where, without such waiver, he could not, because of its tort nature, use it as a counter-claim or set-off.* If the action of assumpsit can only be brought in case of money retained by the wrongdoer, or where he has sold the property and received the money therefor, then the injured may be deprived of his right of counter-claim or set-off, if the prop- erty has not been sold.^ § 491. Privity o£ contract.— The action for money had and received is a liberal and equitable action, and on the principle of natural justice and equity, will be supported, where the de- fendant has received money, which in good conscience he ought not to retain, and which, ex equo et bono, belongs to the plain- tiff. The law implies a promise that he will pay it; and the only privity between the parties that need be shown in such an action arises from this promise implied by law, that the de- fendant, having in his hands money which belongs to the plain- tiff, will pay it over to him.^ 3. Eeynolds v. Padgett, 94 Ga. 58 Minn. 112, 59 N. W. 981, 49 Am. 347, 19 S. E. 906. St. Rep. 488. 4. Norden v. Jones, 33 Wis. 600, 5. Braithwaite v. Aiken, 3 N, 14 Am. Rep. 782; Coit v. Stewart, Dak. 365, 56 N. W. 133. 50 N. Y. 17; Brady v. Brennan, 25 1. Boyett v. Potter, 80 Ala. 479, Minn. 210; Starr Cash Car Co. v. 2 So. 534; Mason v. Waite, 17 Mass. Reinhardt, 20 N. Y. S. 872, 2 562 ; Steiner v. Clisby, 103 Ala. 181, Misc. 116, 49 N. Y. St. 228; Wood 15 So. 612; Houston v. Frazier, 8 V. Mayor, 73 N. Y. 556 ; Barnes v. Ala. 84 ; Burton v. Driggs, 20 Wall. McMullins, 78 Mo. 260; Becker v. (U. S.) 125. See, also, Wilkinson Northway, 44 Minn. 61, 46 N. W. v. Wilkinson, 62 Mo. App. 249; 210, 20 Am. St. Rep. 543; Evans Williams v. Ladew, 171 Pa. St. 369, V. Miller, 58 Miss. 120, 38 Am. Rep. 33 A. 329 ; Emery v. Emery, 87 Me. 313 and note; Downs v. Finnegan, 281, 32 A. 900. 560 Ch. 16 IMPLIED CONTKACTS. § ^92 § 492. Implied assumpsit lies for trees or stone severed and converted. — Under the modem decisions a tort can be waived and assumpsit brought on the implied promise, where there has been a wrongful conversion of property of one person to the use of another, whether sold or not bv the wrongdoer ; and this applies to cases where trees have been severed by a tres- passer from land in possession of the owner, and to quarried stone thereon, and the wrongdoer has afterwards taken the trees or stone away, converting the same to his own use, so that trover or replevin would lie.^ And it has been held in an action of tort that the owner of trees cut from his land by a wilful trespass, and by him man- ufactured into railroad ties, and sold to an innocent purchaser, may recover from the latter their value as ties, without any allowance for the increased value put upon the timber by the trespasser.^ The weight of authority is that where an action is brought for damages for logs cut and removed in the honest belief on the part of the purchaser that he had title to them, the measure of damages is the value in the woods from which they were taken,, with the amount of injury incident to removal, and not at the mill where they were carried to be sawed. ^ 1. Downs V. Finnegan, 58 Minn. 85, 20 S. E. 188, 25 L. E. A. 813, 44 112, 59 N. W. 981, 49 Am. St. Rep. Am. St. Rep. 439 and note; Rail- 488. road Co. v. Hutchins, 32 Ohio St. 2. Powers v. Tilley, 87 Me. 34, 571, 30 Am. Rep. 629; Tilden v. 32 A. 714, 47 Am. St. Rep. 304. See, Johnson, 52 Vt. 628, 36 Am. Rep. also, Strubbles v. Railroad Co., 78 709 and note; Herdie v. Young, 55 Ky. 481; Heard v. James, 49 Miss. Pa. St. 176, 93 Am. Rep. 739; Hill 236; Gaskins v. Davis, 115 N. Car. v. Canfield, 56 Pa. St. 454; Moody 85, 20 S. E. 188, 25 L. R. A. 813, 44 v. Longfellow, 26 Me. 306; Galler v. Am. St. Rep. 439 and note; Frank- Fett, 30 Cal. 482; Foot v. Merrill, lin Coal Co. v. McMillan, 49 Md. 54 N. H. 490, 20 Am. Rep. 157. 549, 33 Am. Rep. 280 and note; See, also. Waters v. Stevenson, 13 Compare Omaha, etc. Co. v. Tabor, Nev. 157; Ross v. Scott, 15 I^ea 13 Colo. 41, 21 P. 925, 5 L. R. A. (Tenn.), 479; Forsyth v. Wells, 41 236, 16 Am. St. Rep. 185; Beede v. Pa. St. 291, 80 Am. Dec. 617; Coal Lumprey, 64 N. H. 510, 15 A. 133, Creek M. Co. v, Moses, 15 Lea 10 Am. St. Rep. 426. (Tenn.), 300, 54 Am. Rep. 415 and 3. Gaskin v. Davis, 115 N. Car. note; Burton Coal Co. v. Cox, 39 561 §§ 493,494 OPERATION OF CONTRACTS. Ch. 16 § 493.When wrongdoer has adverse possession of land. — If the wrongdoer severs trees or takes away quarried stone or other articles severed from the realty, and converts them, but has adverse possession of the land injured, assumpsit for their value by the real owner will not lie, because title to land can- not be tried ex directo in transitory actions.^ An action in assumpsit, in such cases, cannot be maintained where the title of the land is involved in the suit.^ So that, in order to main- tain assumpsit for the value of the stone excavated from the soil or other property and converted by the wrongdoer, the owner must have actual or constructive possession of the land, in addition to his paper title.^ § 494. Right of agent of injured party to sue in assumpsit. — An agent cannot waive the tort and sue in assumpsit, mak- ing the case his own. Because the principle of recovery is that the wrongdoer received the money or property, where, ex equo et bono, it belonged to the injured party and not to his agent. In such case the burden is on the injured party to show that he is legally entitled to the money or value of the converted property, and it is not enough to show that the defendant has no right to it. If neitlier party is entitled to the money, neither can recover from the other.* The one who has been damaged by acting on a false and fraudulent representation made to him as an agent of another, but not intended to be acted upon by him, has no action for Md. 1, 17 Am. Rep. 525; Blaen 112, 59 N. W. 981, 49 Am. St. Rep. Avon Coal Co. v. McCulloh, 59 Me. 488. 403, 43 Am. Rep. 560 and note; 2. Powell v. Smith, 2 Watts Franklin Coal Co. v. McMillan, 49 (Pa.), 126; Baker v. Howell, 6 Md. 549, 33 Am. Rep. 280 and note; Serg. & R. (Pa.) 481. Austin V. Coal Co., 72 Mo. 535, 37 3. Downs v. Finnegan, 58 Minn. Am. Rep. 446; Compare Isle Royal 112, 59 N. W. 981, 49 Am. St. Rep. Mine Co. v. Herten, 37 Mich. 332, 488. 26 Am. Rep. 514 and note; Hazel- 4. Hungerford v. Moore, 65 Ala. ton V. Week, 49 Wis. 661, 6 K 232; Mobile, etc. R. R. Co. v. Fel- 309, 35 Am. Rep. 796. rath, 67 Ala. 189. See, also, 1. Washburn v. Cutler, 17 Minn. Steiner v. Clisby, 103 Ala. 181, 15 361 ; Downs v. Finnegan, 58 Minn. So. 612. 562 Ch. 16 IMPLIED CONTRACTS. §§ 494, 495 deceit against the party making the representation. The false and fraudulent representations must have been intended to be acted on, in a manner affecting himself, by the party who seeks redress for the consequential injuries.^ If the false representation is made to A to induce him to part with his money, and he does so, A must sue; but, if made to him to induce B to part with his, and B is induced thereby to do so, he, and not A, is the party injured, who may maintain the action. In eyerj case the money to be recovered must be the money of the plaintiff or the injured party,^ and not his agent. § 495. Several tort feasors. — In order to maintain an action in assumpsit, it is necessary to show that tlie defendant has received money belonging to the plaintiff. But where several persons are parties to the injury of another, the action is main- tainable against all, and it is not necessary to show that each of the defendants received a share of the proceeds.^ And this result will not be varied by the fact that the common agent failed to account with his associates and absconded witli the proceeds.^ And the commencement of an action by the injured party against one of a series of tort-feasors upon an implied contract arising from a conversion of personalty or withholding and ap- propriating money, will not be a waiver of his rights against the otlier tort-feasors.^ But a wife who merely aids her husband in a forgery, or a mechanic who is simply employed to execute some portion of the work and is paid for his services, having no concern or interest in the fruits of the crime, is not liable in an action ex contractu for money advanced upon the forged instrument. 5. Wells V. Cook, 16 Ohio St. 67, 77 N. Y. 400, 33 Am. Rep. 632 and 88 Am. Dec. 436 and note. note. 6. 2 Greenl. on Ev. 120. 3. Huffman v. Houglilett, 11 Lea 1. National Trust Co. v. Gleason, (Tenn.), 549. 77 N. Y. 400, 33 Am. Rep. 632 and 4. National Trust Co. v. Gleason, note. 77 N. Y. 400, 33 Am. Rep. 632 and 2. National Trust Co. v. Gleason, note. 563 §§ 496, 497 OPERATION OF CONTRACTS. Ch, 16 § 496. Duress. — Money obtained under duress may be re- covered under an implied contract to repay. Tbus, where a party is not liable for taxes, who is called upon peremptorily to pay taxes by the collector and he can save himself and his property in no other way than by paying the illegal demand, he may give notice he pays the taxes under duress and not voluntarily, and then show that he was not liable and recover back the money thus paid.^ Where there exists coercion, threats, compulsion and undue influence, there is no volition. There is no intention or purpose but to yield to moral pressure for relief from it. No title is made through a possession thus ac^ quired and the money may be recovered.® § 497. Duress of goods, — ^Where a party fraudulently and wrongfully knows that he has no just claim against another ar- rests him or seizes his goods for the purpose of extorting money from him, the payment of money by the latter to the former, in order to release himself or his goods from such fraudulent and wrongful detention, is not voluntary, but by compulsion; and the money so paid may be recovered back, Avithout proof of such termination of the former suit as would be necessary to maintain an action for malicious prosecution.^ And, so, where a carrier has exacted money by duress it may be recovered back.^ 5. Amesbury, etc. Manuf. Co. v. v. Peden, 3 Watts (Pa.), 327; Cad- Amesbury, 17 Mass. 461; Preston aval v. Collins, 4 Ad. & El. 858, 6 V. Boston, 12 Pick. (Mass.) 7. Nev. & Man. 324; Gates v. Hudson, 6. Barry v. Assur. Co., 59 N. Y. 6 Exch. 346 ; Parker v. Railway Co., 587; Thornett V. Haines, 15 Mees. & 6 Exch. 702; Chandler v. Sanger, Wei. 367; Foster v. Bartlett, 62 114 Mass. 364, 19 Am. Rep. 367; N. H. 617; Street v. Blay, 2 Barn. Cobb v. Charter, 32 Conn. 358, 87 6 Adol. 456; Gompertz v. Denton, Am. Dee. 178; Robertson v. Frank, 1 Comp. & M. 207. 132 U. S. 17, 10 S. Ct. 5; Briggs v. 1. Watkins v. Baird, 6 Mass. 506, Boyd, 56 N. Y. 289. 4 Am. Dec. 170; Benson v. Monroe, 2. McGregor v. Railroad Co., 35 7 Cush. (Mass.) 125, 54 Am. Dec. N. J. L. 89; Baldwin v. Steamship 716; Carew v. Rutherford, 106 Co., 74 N. Y. 125, 30 Am. Rep. 277 ; Mass. 1, 8 Am. Rep. 287; Richard- Peters v. Railroad Co., 42 Ohio St. son V. Duncan, 3 N. H. 508; Sart- 275, 51 Am. Rep. 814 and note, well V. Korton, 28 Vt. 370; Colwell 564 Cll. 16 IMPLIED CONTRACTS. §§ 498, 499 § 498. Imprisonment. — Although an arrest may be for a just cause and under a valid process, yet if it be for an illegal purpose, and the person arrested pays the money for his re- lease, he may be considered as having paid it by duress of im- prisonment and may recover it back,^ Where there is an arrest for an improper purpose without just cause, or an arrest for just cause but without authority, or for just cause but for an unlawful purpose, even though under process, it is duress of imprisonment ; and if the person thus arrested executed a contract or pays money for his re- lease, he may avoid the contract or recover the money paid in a suit of assumpsit.* But if such money was paid by the injured party voluntarily and after the duress and the influence thereof had ceased, it cannot be recovered back.^ Where money has been wrongfully obtained by means of a voidable contract, for which there was received no valuable consideration, a demand before suit is not necessary,® § 499. Threats of imprisonment. — ^It is held by some of the courts that mere threats of criminal prosecution, where neither warrant has issued or proceedings commenced, do not constitute duress ;^ and others hold that a threat of arrest for which there 3. Eichardson v. Duncan, 3 N. H. 506, 4 Am. Dec. 170; Severance v. 508; Severance v. Kimball, 8 N. H. Kimball, 8 N. H. 386; Richardson 386; Hackett v. King, 6 Allen v. Duncan, 3 N. H. 508; Heckman (Mass.), 58; De Mesnil v. Dakin, v. Swartz, 64 Wis. 48, 24 N. W. L. R. 3 Q. B. 18; Heckman v. 473. Swartz, 64 Wis. 48, 24 N. W. 478; 5. Heckman v. Swartz, 64 Wis. Bush V. Brown, 49 Ind. 573, 19 Am. 48, 24 N. W. 473. Rep. 695; Walker v. Larkin, 127 6. Baldwin v. Hutchinson, 8 Ind. Ind. 100, 26 N. E. 684; Tilley v. App. 454, 35 N. E. 511; Thompson Damon, 11 Cush. (Mass.) 247; v. Peck, 115 Ind. 512, 18 N. E. 16, Richards v. Vanderpool, 1 Daly 1 L. R. A. 201. (N. Y.), 71; Foshay v. Ferguson, 1. Buchanan v. Sahlein, 9 Mo. 5 Hill (N. Y.), 154; Brooks v. Ber- App. 552; Higgins v. Bro\vn, 78 Me. ryhill, 20 Ind. 97; Fisher v. Shat- 473, 5 A. 269; Council v. Burnett, tuck, 17 Pick. (Mass.) 252. 34 Ala. 400. 4. Watkins v. Baird, 6 Mass. 565 §§ 499, 500' OPERATION OF CONTRACTS. Ch. 16 is no ground does not constitute duress, as the party could not be put in fear thereby.^ These cases have no regard to the con- dition of the mind of the person acted upon by the threat, nor do they take into consideration the age, disposition, or intellect of the person threatened ; and leave the old, the ignorant, the weak, and the timid at the mercy of the villain and shyster who ope- rate upon their fears to extort money from them. So the threats to imprison an aged man may be duress, and the money may be recovered back.^ And a threat to procure the arrest and imprisonment of one's son under a false and criminal charge, and reasonable ground to believe that such threat will be executed, constitutes duress, and money paid to prevent such action may be recovered back.* And so where a wife is induced, by a threat of her hus- band's arrest, to pay a debt due from him to the creditor, she may recover back the money paid as obtained by undue in- fluence, and it is immaterial whether or not there was a law- ful ground for the arrest.^ § 500. Compounding felony. — Where a note is given or money paid to compound a felony, the contract is illegal, and the money cannot be recovered nor the note collected.^ The law is well settled that contracts made in violation of law cannot be enforced; where, however, such contracts have been executed 2. Knapp v. Hyde, 60 Barb. (N. 5. Adams v. Bank, 116 N. Y. Y.) 80; Preston v. Boston, 12 Pick. G06, 23 N. E, 7, 6 L. E,. A. 491, 15 (Mass.) 12. Am. St. Rep. 447. See, also, Eadie 3. Cribbs v. Sowle, 87 Mich. 340, v. Slimmon, 26 N. Y. 9, 82 Am. 49 N. W. 587, 24 Am. St. Rep. 166. Dec. 395 and note; Peyser v. Mayor, 4. Schultz V. Culbertson, 46 Wis. 70 N. Y. 501, 26 Am. Rep. 624; 313, 1 N. W. 19; Meech v. Lee, 82 Fisher v. Bishop, 36 Hun (N. Y.), Mich. 274, 46 N. W. 383; Eadie v. 114; Lomerson v. Johnston, 44 N. Slimmon, 26 N. Y. 9, 82 Am. Dec. J. Eq. 93, 13 A. 8; Ingersoll v. 395 and note; Adams v. Bank, 116 Roe, 65 Barb. (N. Y.) 346. N. Y. 606, 23 N. E. 7, 6 L. R. A. 1. Haynes v. Rudd, 83 N. Y. 251, 491 and note, 15 Am. St. Rep. 447; 102 N. Y. 372, 55 Am. Rep. 815; Green v. Scranage, 19 Iowa, 46, 87 Smith v. Rowley, 66 Barb. (N. Y.) Am. Dec. 441; Taylor v. Jaques, 502. 106 Mass. 291. 566 Cb. 16 IMPLIED CONTRACTS. § 500 by payment of tbc irioncy tbereon, tbo courts will refuse to grant relief and leave tbe parties wbere tbey bave placed tbemselves. An action for money so paid cannot be maintained wbere tbe parties are really in pari delicto.^ Tbere is a distinction between tbo&e cases in wbicb one of tbe parties bas, by an illegal act, taken an advantage of, and op- pressed tbe otber, and tbose in wbicb it is not possible to dis- tingiiisb between tbe parties as to tbe degree of tbeir criminality. Tbns, wbere usury bas been paid, it is considered tbat tbe lender bas availed bimself of tbe distress of tbe borrower and bas vio- lated tbe law to extort from bim more tban tbe lawful rate of interest.^ In transactions probibited by statute for tbe protec- tion of one set of men from anotber set of men tbe parties are not in pari delicto.* Wbile a contract may be illegal, yet tbe parties may not be in pari delicto. Tbus, a business of promoting marriages is against policy of tbe law and public interest, and a party paying money to a matrimonial bureau may recover it back.^ Unless tbe par- ties are in pari delicto as well as particeps criminis, tbe courts, altbougb tbe contract is illegal, will afford relief to tbe more innocent ])arty.^ So premiums paid for tbe insurance of lottery tickets may be recovered, as tbe plaintiff is not equally giiilty witb tbe defendant.'' Courts, botb of law and equity, bold tbat two parties may concur in an illegal act witbout being deemed in all respects in pari delicto. In sucb cases relief will be afforded to tbe less guilty party 2. Gotwaet v. Neal, 25 Md. 435 ; 5. Duval v. Wellman, 124 X. Y. Dixon V. Olmstead, 9 Vt. 310, 31 156, 26 N. E. 343; Smith v. Brim- Am. Dec. 629; Collins v.- Blantern, ing, 2 Vern. 392; Boynton v. Hub- 2 Wilson, 341; Wilder v. Collier, 7 bard, 7 Mass. 112; Goldsmith v. Md. 273, 61 Am. Dec. 346. Bruning, 1 Eq. Cas. Abr. 89; Craw- 3. Wheaton V. Hibbard, 20 Johns. ford v. Rnssell, 62 Barb. (N. Y.) (N. Y.) 290, 11 Am. Dec. 284. 92. 4. Browning v. Morris, 2 Cowp. 6. Tracy v. Talmage, 14 N. Y. 790. See, also, Smith v. Bromley, 102, 67 Am. Dec. 132 and note. 6 Doug. 696; Schroeppel v. Corn- 7. Mount v. Waite. 7 Johns. (N. ing, 6 N. Y. 107, 115, 116. Y.) 433. 56Y §§ 500, 501 OPEEATION OF CONTBACTS. CL. 16 where lie appears to liave acted under circumstances of impo- sition, hardship, or undue influence, and especially where there is a necessity of supporting public interest, or a well-settled policy of the law, whether that policy be declared in the statutes of the State or be the outgrowth of the decisions of the courts.* § 501. Voluntary payment of money. — If a party, with full knowledge of the facts, voluntarily pays a demand unjustly made on him, and attempted to be enforced by legal proceed- ings, he cannot recover back the money, as paid by compulsion, unless there be fraud in the party enforcing the claim, and a knowledge that the claim is unjust. And the case is not altered by the fact that the party, so paying, protests that he is not an- swerable, and gives notice that he shall bring an action to recover the money back; the party has an option, whether to litigate the question or submit to the demand and pay the money.® An early case^" decided that money paid, even under a judg- ment of a court of competent jurisdiction, could be recovered back, if in equity and good conscience the party receiving it was not entitled to hold it ; this doctrine was never deemed satis- factory. The courts for a long time endeavored to sustain this doctrine; but finally established this rule that a party may in equity and good conscience continue to hold money voluntarily paid to him under no mistake of fact, and without fraud on his part.^ The rule is now, that wherever a party has an oppor- tunity to plead and avail himself of a legal defense, and pays money, though under protest, he cannot recover it back, for the 8. 1 Pom. Eq. 403; Story's Eq. (Mass.) 115; Regan v. Baldwin, 300. 126 Mass. 485, 30 Am. Rep. 689. 9. Brisbane v. Dacres, 5 Taunt. 10. Moses v. Macpherlan, 1 W. 152; Brown v. McKinally, 1 Esp. Bl. 219. 279; Milnes v. Duncan, 6 Barn. & 11. Brisbane v. Dacres, 5 Taunt. Cr. 679; Cadaval V. Collins, 4 Adol. 143; Benson v. Monroe, 7 Cush. & El. 858, 6 Nev. & Man. 324; Ben- (Mass.) 125, 54 Am. Dec. 716; son V. Monroe, 7 Cush. (Mass.) Regan v. Baldwin, 126 Mass. 485, 125, 54 Am. Dec. 716; Bacon v. 30 Am. Rep. 689; Brown v. McKin- Bacon, 17 Pick. (Mass.) 134; ally, 1 Esp. 279. Forbes v. Appleton, 5 Cush. 568 Ch. 16 IMi'LlED CONTE^ICTS. §§ 501, 502 payment is not compulsory but voluntary.^ So where a shop was rendered unfit for use by fire, and the lessor does not repair as he was legally bound to do, and refuses to make a rebate of rent to the tenant, and demands full rent of the lessee which is paid under protest by the latter, the lessee cannot recover back the overpayment, for the payment was voluntary.^^ § 502. As to third parties with notice. — When a third party who has received a specific sum of money, which he knows belongs to another, refuses to deliver it to the owner, the latter can recover it in an action of assumpsit/ Thus, money bet on an election can be recovered by the person depositing it with the stakeholder if demanded before payment to the winner, on the ground that such bet being prohibited by law, there is an implied promise on the part of the stakeholder to repay the money to its legal owner.^ So the holder of stolen money, if he has knowledge of the theft, holds the money for the rightful owner who can recover it on the implied promise to pay it.^ An action for money had and received, will lie by the true owner of money against a third person into whose hands it came mala fide, provided identity can be traced or ascertained.* Thus, when a payee of a promissory note has placed it in the hands of an agent, who has in turn placed it in the hands of a third person, who has made the collection and misapplied the pro- ceeds, an action by the payee for money had and received, lies against the third person.^ And money fraudulently obtained 4. Hamlet v. Richardson, 9 Bing. 556; Forscht v. Green, 53 Pa. St. 644; Benson v. Monroe, 7 Cush. 138. (Mass.) 125, 54 Am. Dec. 716. 3. Hindmarck v. HoflFman, 127 5. Regan v. Baldwin,' 126 Mass. Pa. St. 284, 18 A. 14, 4 L. R. A. 485, 30 Am. Rep. 689. 308 and note. 1. Mason v. Prendergast, 120 N. 4. Clarke v. Shee. 1 Cowp. 197. Y. 536, 24 N. E. 806; Bayne v. S.Harrison Mach. Works v. Co- United States, 93 U. S. 642; Cal- quillard, 26 111. App. 513. See, also, land V. Loyd, 6 Mees. & Wei. 26. Drovers Nat. Bank v. O'Hare, 119 2. McAllister v. Hoffman, 16 111. 646, 10 N. E. 360; Allen v. Serg. & R. (Pa.) 147, 16 Am. Dec. Stenger, 74 HI. 120. 569 §§ 502, 503 OPERATION OF CONTEACTS.- Cll. 16 and in the hands of a mere depositary, may be recovered by the true owner.^ § 503. Receiving benefits of a fraud — Agency. — The doe- trine prevails at law and in equity, that a person, though innocent, cannot avail himself of an advantage obtained by the fraud of another, unless there is some consideration mov- ing from him. Although a third person shall not be punished for the fraud of another, he shall not avail himself of it.^ The rule is general, that if one who assumes to do an act which will be for the benefit of another commits a fraud in so doing, and the person to whose benefit the fraud will enure seeks, after knowledge of the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all, and to be chargeable with the knowledge of it, so far, at least, as relates to his right to retain the benefit so re- ceived.^ Therefore, if a treasurer of a corporation is a defaulter, and his defalcation is unknown, and he steals money from a third person and places it with the funds of the corporation in order to conceal and make good his defalcation, and the corporation uses the money as its own, no other officer knowing any of the facts, the corporation does not thereby acquire a good title to the money, as against the true owner, but the latter may main- 6. Tradesman's Bank v. Merritt, 8. Bush v. Moore, 133 Mass. 198 j 1 Paige (N. Y.), 302; Mechanic's Rogers v. Palmer, 102 U. S. 263; Bank v. Levy, 3 Paige (N. Y.), National Security Bank v. Cush- 606; Pennell v. Deffell, 4 De G. M. man, 121 Mass. 490; Suit v. Wood- «& G. 372. hall, 113 Mass. 391; Bennett v. 7. Robson v. Calze, 1 Doug, 228; Judson, 21 N. Y. 238; Grans v. Atlantic Bank v. Bank, 10 Gray Hunter, 28 N. Y. 389; Glyn v. (Mass.), 532; Olmsted V. Hotailing, Baker, 13 East, 509; Dresser v. 1 Hill (N. Y.), 317; Udell v. Ather- Norwood, 17 C. B., N. S. 466; Bour- ton, 7 Hurl. & N. 171; Huguenn sot v. Savage, L. R. 2 Eq. 134; Rol- V. Boseley, 14 Ves. 273; Scholefield land v. Hart, L. R. 6 Ch. 678; Es- V. Templer, 4 De G. & J. 429 ; Tap- pin v. Pemberton, 3 De G. & J. ham V. Portland, 1 De G. J. & S. 547; British, etc. Tel. Co. v. Bank, 517; Russell v. Jackson, 10 Hare, L. R. 7 Exeh. 119; Bradley v. 204. Riches, 9 Ch. D. 189; Blackburn v. 570 Ch. IG IMPLIED CONTEACTS. }§ 503,504 tain an action ag'ainst the corporation to recover back the same.® § 504. Money received in payment of debts. — Money re- ceived by fraud or felony cannot be followed by the true owner into the hands of one who has received it bona fide for a valu- able consideration in due course of business.^ It is absolutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payer. It would introduce great confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to the ri?k of accounting therefor to a third person who may be able to show that the debtor obtained it from the latter by felony or fraud. The law wisely, from considerations of public policy and conven- ience, and to give security and certainty to business transac- tions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon a valid consideration. If the consideration is good between the par- ties, it is good as to all the world. ^ Money, or negotiable securities, transferred to a third person, who receives them innocently as property of the person from whom they came, for a valuable consideration, cannot be fol- lowed by the true owner; and the same rule extends to such property received by a firm from one of its members.^ A large share of the business of the world is carried on by Vigors, 17 Q. B. D. 553, 12 App. Cas. 531. 9. Atlantic Cotton Mills v. Or- chard Mills, 147 Mass. 2G8. 17 N. E. 496, 9 Am. St. Rep. 698. 1. Miller v. Race, 4 Burr. 452. 2. Stephens v. Board, 79 N. Y. 183, 35 Am. Rep. 511; Miller v. Race, 4 Burr. 452; Newhall v. Wyatt, 139 N. Y. 452, 36 Am. St. Rep. 712, 34 N. E. 1045; South- wick V. Bank, 84 N. Y. 420, 434; Justh V. Bank, 50 N. Y. 478. 3. Lime Rock Bank v. Plimpton, 17 Mass. 159; Greenfield School Dist. V. Bank, 102 Mass. 174; Thacher v. Pray, 113 Mass. 291, 18 Am. Rep. 480; Ex parte Apsey, 3 Bro. C. C. 265 ; Jaques v. IVIarquand, 6 Cow. (N. Y.) 497; Dunlap v. Lewis, 49 Iowa, 177. 571 §§ 504, 505 OPERATION OF CONTRACTS. Ch. 16 means of bills of exchange drawn upon persons liable to pay or for the accommodation of the drawers willing to pay them. Hence, the protection and encouragement of trade and com- merce and considerations of public policy and convenience, require that when such a bill is paid to one who holds it in good faith and for value he should not be called upon afterwards to account for the money paid.* The doctrine that an antecedent debt is not such a considera- tion as will cut off the equities of third parties, in respect to negotiable securities obtained by fraud, has no application to money so obtained.^ § 505. Chattels wrongfully obtained. — If a third party re- ceives goods which have been wrongfully obtained and con- verts or sells them, the rightful owner may recover from him the value of the goods, unless the recipient has received them hona fide and paid a valuable consideration. Bank notes are now so far considered like common current money that they can- not be followed by the original owner into the hands of a hona fide holder for a valuable consideration without notice.^ A check must be considered in the same right as a promis- sory note taken after it is due. A check is payable immediate- ly, and the holder keeps it at his peril, and a person taking it after it is due, takes it with all the equities. So where a check is taken by a third party after its date of execution, and which had been lost and found by the second party who passed it, the third party is liable to the real owner for it.^ 12. Hamlet v. Richardson, 9 Bing. 1. Lowndes v. Anderson, 13 East, 344; Stephens v. Board, 79 N. Y. 130; Safford v. Wyckoflf, 4 Hill (N. 183, 35 Am. Rep. 511; Foster v. Y.), 442; Glyn v. Baker, 13 East, Green, 7 Hurl. & N. 881; State 509. Bank v. United States, 114 U. S. 2. Down v. Hailing, 4 Barn. & 401, 5 S. Ct. 888. Cr. 330. 13. Regan v. Baldwin, 126 Mass. 183, 35 Am, Rep. 511. 572 CHAPTER XVII. Assignments. ARTICLE I. Voluntary Assignments. Section 506. For Benefit of Creditors. 507. Set-off Against Assignee. 508. Priorities. 509. Coupons — Theater Tickets. 510. Bills of Lading. 511. Drawing Draft by Consignor. 512. Bills of Lading — Negotiability. 513. Warehouse Receipts. 514. Nature of Warehouse Receipts. § 506. Voluntary assignment for benefit of creditors. — The assignee of an insolvent assignor or corporation under an asr signment for the benefit of creditors, takes the property sub- ject to whatever equities existed against the assignor, the as- signee succeeds to the rights of the insolvent assignor or cor- poration as they existed at the date of the assignment, and no other or greater rights. However, the authorities are not en- tirely harmonious, but the rule as stated in the text has the following of the majority of the courts and text writers, and is the more equitable.^ 1. McCagg V. Woodman, 28 111. 283, 16 A. 761; Van Wagoner v. 84; Rothschild v. Mack, 115 N. Y. Gas Light Co., 23 N. J. L. 283; 1; 21 N. E. 726; Hade v. McVay, Clarke v. Hawkins, 5 R. I. 219; 31 Ohio St. 231; American Bank v. Nashville Trust Co. v. Bank, 91 Wall. 56 Me. 167; Chace v. Chapin, Tenn. 336, 18 S. W. 822, 15 L. R. 130 Mass. 130; Cook v. Cole, 55 A. 710 and note; Merwin v. Austin, Iowa, 70, 7 N. 419; Farmers' De- 58 Conn. 22, 18 A. 1029, 7 L. R. A. posit N. Bank v. Bank, 123 Pa. St. 84 and note; Salladin v. Mitchell, 573 §§ 506-508 OPERATION OF CONTRACTS. Ch. 17 In those States where the real party in interest must sue the claim, the right of set-off exists in favor of one who has ac- quired the title to money due from an insolvent bank on a cer- tificate of deposit issued to a third person with a formal as- signment by the latter.^ § 507. Set-off against assignee. — The debtor may set-off any claim due him from the creditor at the time of the assignment. Thus, the maker of a non-negotiable note which has been as- Siigned by the payee to a third party, may set-off against it a note of the payee which he has purchased before notice of the assignment of the note executed by himself.^ But the debtor cannot set-off an unmatured debt at the time of the assignment of the assignor against the assignee.* And the debtor cannot set-off a claim afterwards acquired.^ So where a laborer has assigned his wages Avhich are to be earned in the future under a contract already made, he cannot set up a claim against the assignee which is wholly independent of the contract of assign- ment, and which accrued after the assignment.^ § 508. Priorities. — The question which of different assignees of a chose in action by express assignment from the same per- son will have the prior right is one in respect to which there is much conflict of authority.^ But the better rule is that where two assignments of a chose in action, for a valuable con- sideration, are made to different persons, the assignee who first 42 Nebr. 859, 61 N. W. 127; Cox v. ens, 20 Conn. 73; Abshire v. Corey, Valkert, 86 Mo. 505; Sehuler v. 113 Tnd. 484, 15 N. E. 685. Israel, 120 U. S. 506, 7 S. Ct. 648 ; 4. Follett v. Buyer, 4 Ohio St. Carr v. Hamilton, 129 U. S. 252, 9 586; Backus v. Spaulding, 129 S. Ct. 295; Pom. on Bern. 163, 169. Mass. 234; Roberts v. Carter, 38 Compare Eastern Bank v. Capron, N. Y. 107. 22 Conn. 639; Haxton v. Bishop, 3 5. Weeks v. Hunt, 6 Vt. 15; Wend. (N. Y.) 13. Goodwin v. Cunningham, 12 Mass. 2. Salladin v. Mitchell, 42 Neb. 192; Crayton v. Clark, 11 Ala. 787. 859, 61 N. W. 127. 6. St. Andrew v. Manuf. Co., 134 3. St. Louis Nat. Bank v. Gay, Mass. 42. 101 Cal. 286, 35 P. 876; McCabe v. 1. Pom. Eq. Jur. 693; Story Eq. Gray, 20 Cal. 509; Adams v. Leav- Jur. 1047. 574 Ch. 17 ASSIGNMENTS. § 508 gives notice of his claim to the debtor has the prior right, though the assignment to him is later in date than that to the other assignee.^ It is held that in order to perfect the assignee's title he must immediately give notice of the assignment to the debtor, for otherwise a priority of right may be obtained by a subsequent assignee, or the debt may be discharged by a payment before such notice.^ So a subsequent purchaser of a chose in action will be preferred over a prior purchaser, who neglects to give notice of his assignment, and warns others not to buy/ Hence, notice of an assignment of a demand or obligation given to a debtor fixes the right of the parties and protects the assignee, though it be a partial assignment.^ But this is not the rule adopted by all the courts. In many States the assignment of a chose in action is com- plete upon the mutual assent of the assignor and assignee, and gains no additional validity as against third persons by notice 2. Tuder v. Perkins, 3 Day (Conn.), 364; Vanbuskirk v. Ins. Co., 14 Conn. 444, 36 Am. Dec. 492; Dearie v. Hall, 3 Russ. 1; Love- ridge V. Cooper, 3 Euss. 30 ; Timson V. Ramsbottom, 2 Keen, 35; Foster V. Coekerell, 3 Ch. & F. 456; Barney v. Douglass, 19 Vt. 98; Bishop V. Slocomb, 10 Conn. 446; Judson V. Corcoran. 17 How. (U. S.) 612; Spain v. Hamilton, 1 Wall. (U. S.) 604; Bisph. Eq. 169; Stocks V. Dobson, 4 DeG. M. & G-. 15; In re Gillespie, 15 Fed. Rep. 734; Methven v. Heat & Power Co., 66 Fed. Rep. 113; White v. Prentiss, 3 T. B. Mon. (Kj^) 448;' Clodfelter V. Cox, 1 Sneed (Ter.n.), 330. 60 Am. Dec. 157; Murdook v. Finney. 21 Mo. 138; Ward v. Morrison, 23 Vt. 593; Foster v. Blackstonc, 1 Myl. & K. 297; Willes v. Greenhill, 4 D. F. & J. 147: In re Wvatt (1892), 1 Ch. 188; Ward v. Don- combe (1893), App. Cas. 369, 2 Lead. Cas. Eq. (part 2), 1165, 1166, and cases cited; Cooper v. Fynmore, 3 Russ. 60; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Dec. 453; Meux V. Bell, 1 Hare, 73; Adams Eq. 53; Matt v. Clark, 9 Pa. St. 399, 49 Am. Dec. 556; Smith v. Smith, 2 Cromp. & M. 231. 3. Loveridge v. Cooper, 3 Russ. 30. See. also, Murray v. Lylburn, 2 Johns. Ch. (N. Y.) 442; Moore V. Holcombe, 3 Leigh (Va.), 597, 24 Am. Dec. 683. Compare Garland V. Richeson, 4 Rand. (Va.) 270. 4. Judson V. Corcoran, 17 How. (U. S.) 612; Bayley v. Greenleaf, 7 Wheat. (U. S.) 46. 5. Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586, 43 Am. St. Rep. 475. 5Y5 § 508 OPERATION or CONTRACTS. Ch. 17 to the debtor.® So as between a prior and subsequent assignee of the same debt it is not necessary to the validity of the first assign- ment, that notice thereof should be given to the debtor.^ Because there being no legal title in the assignees of a chose in action, and the equities being equal, he who is first in time has the better right.^ That the failure to give notice of an assignment is im- material, as regards one claiming under the assignor as a credi- tor or volunteer, it being a general, if not invariable rule, that one cannot give what he could not justly hold, and that the right of a creditor does not rise higher than that of the debtor, and is subject to all the equities that could have been enforced against him.^ So a subsequent assignee takes the title of the chose in action subject to all equities existing between any prior assignor and assignee.^" And when there is a secret agreement between the obligor and obligee restricting the collection of the bond to certain property of the obligor, and the assignee of the bond for value who purchases without notice of the agreement, but without inquiry of the obligor, will be affected thereby. ^^ 6. Thayer v. Daniels, 113 Mass. field v. Martin, 3 Mass. 558; Dix v. 129. Cobb, 4 Mass. 508; Wood v. Part- 7. Bank v. Gettinger, 3 W. Va. ridge, 11 Mass. 488; Providence 317; Harrison v. Bank, 9 W. Va. County Bank v. Benson, 24 Pick. 424; Tingle v. Fisher, 20 W. Va. (Mass.) 204; Martin v. Potter, 11 497. Gray (Mass.), 37, 71 Am. Dec. 689; 8. Tingle v. Fisher, 20 W. Va. Pvichards v. Smith, 9 Gray (Mass.), 497; Muir v. Schenck, 3 Hill (N. 315; Kingman v. Perkins, 105 Mass. Y.), 228, 38 Am. Dee. 633; Kam- 111. See, also, McClintie v. Wise, ena v. Huelbig, 23 N. J. Eq. 78; 25 Gratt. (Va.) 448, 18 Am. Rep. Newby v. Hill, 2 Met. (Ky.) 530; 694; Grubb v. Wysor, 32 Gratt. Ohio Ins. Co. v. Ross, 2 Md. Ch. (Va.) 127. 25; Harrison v. Bank, 9 W. Va. 9. Beavan v. Oxford, 6 DeG. M. 424; Com. Nat. Bank v. Burch, 141 & G. 492; Kendricky v. Jervis, 22 HI, 519, 31 N.- E, 420, 33 Am. St. Beavan, 1 ; Pickering v. Railway Rep. 331 and note; Shafer v. Riley, Co., L. R. 3 C. P. 235, 248. 50 N, Y. 66; Moore v. Bank, 55 N. 10. Sutherland v. Reeve, 151 HI. Y. 41, 14 Am. Rep. 173; Greentree 384, 38 N. E. 130. V. Rosenstock, 61 N. Y. 593; Trus- 11. Lane v. Smith, 103 Pa. St. tees V. Wheeler, 61 N. Y. 104; Sum- 415. mers v. Huston, 48 Ind. 230; Wake- 5Y6 Ch. 17 ASSIGNMENTS. § 509 § 509. Coupons — Theatre tickets. — If coupons are drawn so that they can be separated from the bond, they are like the bond neg'otiable, if liaviiiii- that form ; the owner of them can sue on the coupon without producing the bond to which they were attached, or without being interested in the bond.^ Bonds and their coupons may circulate together or separately, and suits on coupons are sustained entirely independently of the bonds to which they were originally annexed. And it is of no consequence whether they are promissory notes, bills, drafts, or checks, for they have the same quality of negotiability as any of those instruments, and the holder sues upon them and recovers in his own name.^ But a coupon to be negotiable, must be so upon its face with- out reference to any other paper.* A theater ticket is commonly held to be a mere license, and not a contract which may be assigned.* This is on the ground that the proprietor of a theater has a right to say whom he will or will not admit to his theater. A theater ticket is simply a license to the party presenting the same to witness a perform- ance to be given at a certain time, and being a personal license it may be revoked.^ But if the ticket to a theater or concert is not a contract, there is a contract behind it, a contract of pur- chase. If the ticket is refused and the purchaser is not per- mitted to enter the theater or concert hall, then he may re- cover back the purchase price and also the damages that may directly result therefrom.® Hence, there must be a contract between the parties and an implied provision exists that the purchaser has a right to transfer it. And so it seems that such 1. Tliompson v. Lee County, 3 3. Augusta Bank v. Augu.-ta, 49 Wall. (U. S.) 327; Beaver County Me. 507. V. Armstrong, 44 Pa. St. 63; Haven 4. Collister v. Haynian, 75 X. Y. Railroad Co., 109 Mass. 88. S. 1102, 71 App. Div. 316. 2. Beaver County v. Armstrong, 5. Purcell v. Daly, 19 Abbot'3 44 Pa. St. 63; Thomas v. Leo Coun- New Cases, 301; Coleman v. Fos- ty, 3 Wall. (U. S.) 327; Kenard v. ter, 1 Hurl, and Norm. 37; Drake Cass, 3 Dillon, C. C. 147; Haven v. v. Wells, 11 Allen (Mass.), 144. Railroad Co., 109 Mass. 88. 6. Purcell v. Daly, 19 Abb. N". Cas. 301. 517 §§ 509, 510 OPERATION OF CONTRACTS. Oh. 17 a ticket gives something more than a license to enter the theater or concert hall.'' If the ticket contains a statement that it is a personal license and not transferable, yet iu some vStates actual notice of this provision must be brought home to the purchaser by actual notice and his acceptance before it will bind him. In other jurisdictions, the mere acceptance of the ticket binds the vendee as to such provision.^ Whether such a right to transfer is implied or not in such a case is certainly an open question. The doctrine that a theater ticket, or other ticket for a pub- lic entertainment is a mere license which can be revoked at any time was announced in England years ago,^ and has been followed by many courts in the United States. This doctrine is not in accordance with the view of American citizens. It •has been correctly held that the holder of a ticket for a re- served seat in a theater is entitled to tliat particular seat for the time specified by such ticket, and has more than a mere license to enter the theater, revocable at the will of the seller, that his right under such ticket is more in the nature of a lease. ^'^ And this view is sustained in the dissenting opinion of Justice Harlan in the Civil Rights Cases,^^ where it is logically held that a licensed theatrical manager, whose place of amusement is open for public entertainment and to which the public are invited to go and pay their money for the use of a seat, is not a mere private enterprise owing no duty to the public, but is a place clothed with a public interest because used in a manner to make it of public consequence and to affect the community at large. This is the true American doctrine though the English precedents are against it. § 510. Bills of lading. — By statute in many States and under the law merchant, a bill of lading is a receipt given by a car- 7. Drew v. Peer, 93 Pa. St. 234. 9. Wood v. Leadbetter, 13 M. Section 518. What is Assignable. 519. Agreements of Personal Trusts Involving Personal Skill. 520. Assignment of Expectancies. 521. Partial Assignments at Law. 522. Partial Assignments with Consent of Debtor. 523. Partial Assignment — City as Debtor. 524. Partial Assignment in Equity. 525. Difference Between an Equitable and Legal Assignment. 526. When Partial Assignments will be Sustained. 527. Modification by Statute. § 518. What is assignable. — Where an executory contract is not necessarily personal in its character, it may be assigned. Anything directly or indirectly involving a right of property it assignable,^ when it is not against public policy. The right pie V. Omaha, 2 Neb. 169; Bliss v. 1. La Rue v. Groezinger, 84 Cal. Lawrence, 58 N. Y. 442, 17 Am. 281, 24 P. 42, 18 Am. St. Rep. 179; Rep. 273; Wallace v. Lawyer, 54 Mulhall v. Quinn, 1 Gray (Mass.), Ind. 501, 23 Am. Rep. 661; High- 105, 61 Am. Dec. 414; Cook v. Bell, tower V. Slayton, 54 Ga. 108, 21 18 Mich. 387; Harboard v. Cooper, Am. Rep. 273; Schloss v. Hewlett, 43 Minn. 466, 45 N. W. 860; Dev- 81 Ala. 266, 1 So. 263. lin v. New York, 63 N. Y. 8 ; Grant 4. Lehigh Valley R. R. Co. v. v. Ludlow, 8 Ohio St. 1; Gray v. Woodring, 116 Pa. St. 513, 9 A. Garrison, 9 Cal. 325; Dayton v. 58. Fargo, 45 Mich. 153, 7 N. 758. 588 Oh. 17 ASSIGNMENTS. § 518 assignable must have at least a potential existence at the time of tlie assignment.^ Actual existence is not unnecessary. If the thing rests in possibilitj only at the time of the assign- ment, the assignment is valid, though the contract may never be performed. Expectancies, as well as existing rights of action, may be assigned, and the rights of the assignee will be protected and enforced at law.^ An assignment may include all contingent and incidental benefits or results of an execu- tory contract, as well as all direct fruits and earnings under it, and thus entitle the assignee to the damages resulting from a violation of its terms. The right of action for a breach of the contract, resulting in precuniary loss to the contractor, would survive to the personal representatives of the aggrieved party, and that is one test of the assignability of contracts and choses in action.* A perfected claim to any thing, whether money or goods, may be assigned so as to vest in the assignee the equitable in- terest, and in some of the States the legal interest.^ Commissions on renewal premiums in insurance to accrue annually for a given period in the future, is assignable by the agent,^ so a lessor can assign future rent under an existing lease,'^ though it is not probable he could assigii rent under a lease not yet made ; and so a man may assign money under an insurance policy already issued before any loss, though he 2. Metcalf v. Kincaid, 87 Iowa., of App. Dec. 301; Devlin v. New 443, 54 N. W. 867, 48 Am. St. Rep. York, 63 N. Y. 8. 400; Thallheinier v. Biinckerhoff. 3 4. Byxbie v. Wood, 24 N. Y. Cow. (N. Y.) 623, 15 Am. Dec. 308 607; McKee v. Judd, 2 Kern. (N. and note; Skipper V. Stokes, 42 Ala. Y.) 622; Zabriskie v. Smith, 3 255, 94 Am. Dec. 646 and note; Kern. (N. Y.) 322. Kassiev. Congregation, 35 Cal. 378; 5. Gray v. Garrison, 9 Cal. 325; Moody V. Wright, 13 Met. (Mass.) Pier v. George, 86 JST. Y. 613; Bull 17, 46 Am. Dec. 706 and note; v. Faulkner, 2 De G. & S. 772. Needles v. Needles, 7 Ohio St. 432, 6. Knevals v. Bhiuvelt, 82 Me. 70 Am. Dec. 85 and note. 458, 19 A. 818. 3. Field v. Mayor, 2 Seld. (N. 7. Demorest v. Willard, 8 Cow. Y.) 179; Hall v. Buffalo, 2 Abb. Ct. (N. Y.) 206. 589 §§ 518, 519 OPEEATION OF CONTRACTS. Oh. 17 could not assign money before the issuance of the policy.^ And so a contract to sell all the ji^apes of a certain standard which the contractor may raise upon a certain vineyard during a cer- tain period is assignable by the party selling.^ If the assignment is the mere possibility of a subsequent acquisition of property, which is vague and uncertain, it will not be sustained as a valid assignment/** "Services" rendered under a contract for the erection of a building includes claims for money due for expenditures under the contract as well as for labor performed thereunder, and goes with the assignment of the contract.^ § 519. Agreements of personal trust involving personal skill. — Every kind of a contract is not assignable. Contracts for personal services, or contracts otherwise involving personal credit, trust or confidence cannot be assigned.-^ Thus a master 8. Bergson v. Ins. Co., 38 Cal. 541. 9. La Rue v. Groezinger, 84 Cal. 281, 24 A. 42, 18 Am. St. Rep. 179. 10. Mulhall V. Quinn, 1 Gray (Mass.), 105, 61 Am. Dec. 414 Jermyn v. Moffitt, 75 Pa. St. 402 Ruple V. Bindley, 91 Pa. St. 296 Lehigh Valley R. R. Co. v. Wood ring, 116 Pa. St. 513, 9 A. 58 Runnells v. Bosquest, 60 N. H. 38 Metcalf V. Kincaid, 87 Iowa, 443 54 N. W. 867, 43 Am. St. Rep. 391 Morrill v. Noyes, 56 Me. 458, 96 Am. Dec. 486. Compare Edwards V. Peterson, 80 Me. 367, 14 A. 936, 6 Am. St. Rep. 207. 11. Tracy v. Waters, 162 Mass. 562, 39 N. E. 190. See, also. Union Pac. R. R. Co. V. Bank, 42 Neb. 469, 60 N. W. 866; Hooper v. Van Husen, 105 Mich. 592, 63 N. W. 522. 1. Robson V. Drummond, 2 Barn. & Ad. 303; Bethlehem v. Annis, 40 N. H. 34, 77 Am. Dec. 700; Joslyn V. Parlin, 54 Vt. 670; Lansden v. McCarthy, 45 Mo. 106; Munsell v. Temple, 3 Gil. (111.) 93; Schultz V. Johnson, 5 B. Mon. (Ky.) 497; Wheeler v. Walton, 64 Fed. Rep. 664; Boykin v. Campbell, 9 Mo. App. 495; Redheffer v. Leathe, 15 Mo. App. 12; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9 ; Hardy Implement Co. v. Iron Works, 129 Mo. 222, 31 S. W. 599; Humble v. Hunter, 12 Q. B. 311; Boulton V. Jones, 2 Hurl. & N. 564; Devlin v. New York, 63 N. Y. 8; Taylor v. Palmer, 31 Cal. 241; British Wagon Co. v. Lea, 5 Q. B. Div. 149 ; Arkansas Valley Smelting Co. V. Min. Co., 127 U. S. 379, 8 S. Ct. 1308; Rappleye v. Seeder Co., 79 Iowa, 220, 44 N. W. 363, 7 L. R. A. 139; Sloan v. Williams, 138 111. 43, 27 N. E. 531, 12 L. R. A. 496 and note ; Chapin v. Longworth, 31 Ohio St. 421; Grieswold v. Rail- 590 Ch. 17 ASSIGNMENTS. § 519 cannot assipm over his apprentice.^ So a contract by a pub- lisher with an author to publish a work is not assi^able by the publisher without the author's consent, because of the personal trust placed in the publisher by the author; that the contract was made in reference to the character and facilities of the contracting firm as a publishing house, and was in the nature of a partnership in so far as it provided for a division of the profits of the work to be published.^ So a contract to deliver meat to a hotel, to be paid for at the end of each month, cannot be assigned by the hotel-keeper, because the pecuniary credit and standing of the hotel-keeper constituted an important in- ducement to the contract.^ So a contract to sell ore to a smelt- ing company, the price of which is to be adjusted and paid by the mutual acts of the parties after delivery, is not assignable by the smelting company; because during the time that must elapse between the delivery of the ore and the ascertainment and payment of the price, the party furnishing the ore had no security for its payment, except in the character and solvency of the smelting company.^ And there may be extraneous cir- cumstances showing that the party's intention was not to deal with the assignee.^ Although the language may not show an intention that the contract should not be assigned, yet the nature of the case may be such that performance by another would be an essentially different thing from that contracted for. Thus, a picture by an artist is an essentially different thing from a picture on the same subject by another artist ; and so of a book composed by road Co., 18 Mo. App. 52; Daly v. 3. Stevens v. Benning, 6 De G. Stetson, 54 N. Y. Super. Ct. 202; SI. & G. 223, 1 Kay & J. 168; Gib- Davenport V. Gentry, 9 B. Men. son v. Carruthers, 8 Mees. & Wei. (Ky.) 427: Burger v. Rice. 3 Ind. 321, 343. 125. 4. Lansden v. McCarthy, 45 Mo. 2. Caster v. Aides, 1 Salk. 68; 106. Davis V. Coburn, 8 Mass. 299; 5. Arkansas Valley Smelting Co. Nickerson v. Howard, 19 Johns. v. Belden Min. Co., 127 U. S. 388, (N. Y.) 113; Stringfield v. Heis- 8 S. Ct. 1308. kell, 2 Yerg. (Tenn.) 546; Handy 6. Boston Ice Co. v. Potter, 123 V. Brown, 1 Cranch, C. C. 610. Mass. 28, 30, 25 Am. Rep. 9. 591 §§ 519, 520 OPERATION OF CONTBACTS. Ch. 17 an author, or any other act or thing where the skill, credit, or other personal quality or circumstance of the party is a dis- tinctive characteristic of the thing contracted for, or a material inducement to the contract. Under this general head, many cases have already been cited to establish this self-evident doctrine. While a contract right to render personal service cannot be assigned without consent of the person to whom the services are due, the right to receive pay for such services when rendered is assignable, in the absence of statute or stipulation to the con- trary,^ even when the fund has only a potential existence.^ § 520. Assignment of expectancies. — It is a general rule that an assignment at law will not be sustained, unless the sub- ject-matter has an actual or potential existence when the as- signment is made. In equity the rule is different; so an ex- pectancy of an heir in an ancestor's estate may become subject of contract, and maj be assigned in equity. Courts of equity will uphold such an agreement of an heir-apparent, when it is fairly made for an adequate consideration. If no unjust ad- vantage is taken of the indiscretion or necessities of the heir, and if the agreement is not unconscionable and is not obtained by fraud or oppression, it may be enforced in equity after the death of the ancestor,^ provided such conveyance contains cove- nants of warranty or recitals, or the grantor has acted so as to 7. Ryan v. Douglas County, 47 Wyatt, 54 Kans. 523, 38 P. 792, 33 Neb. 9, 66 N. W. 30; Perkins v. L. R. A. 278; Patterson v. Caldwell, Butler County, 44 Neb. 110, &2 N. 124 Pa. St. 455, 16 A. 496, 10 Am. W. 308, 3 Pom. Eq. Jur. 1280. St. Rep. 598; Kuhn's Estate, 163 8. Brill V. Tuttle, 81 N. Y. 454, Pa. St. 438, 30 A. 215; Kinyon v. 37 Am. Rep. 515; Leahy v. Dug- Kinyon, 72 Hun, 452, 25 N. Y. S. dale, 27 Mo. 437; Devlin v. New 225; Bacon v. Bonham, 33 N. J. York, 63 N. Y. 8; Cutts v. Perkins, Eq. 614; In re Garcelon, 104 Cal. 12 Mass. 206; Hawley v. Bristol, 570, 38 P. 414, 32 L. R. A. 595 and 39 Conn. 26; Brown v. Dunji, 50 note, 34 Am. St. Rep. 134. See, N. J. L. Ill, 11 A. 149. also, Kershaw v. Kershaw, 102 111. 9. Steele v. Fierson, 85 Tenn. 307; Crum v. Sawyer, 132 111. 443, 430, 3 S. W. 649; Clendening v. 24 N. E. 956. Compare Alves v. 592 Ch. 17 ASSIGNMENTS. §§ 520, 521 give rise to equitable estoppel ;^'' and it is held that the ancestor must acquiesce at such conveyance.^^ If the ancestor makes a will and the heir never takes under it, then hib conveyance is void.^ § 521. Partial assignment at law. — It is well settled that a creditor cannot without the consent of the debtor, split up an entire demand into distinct parts, and maintain separate actions at law upon each. In such case a recovery in one action bars the others.^ The debtor's liability usually depends upon the entire contract, and if the creditor could, without the debtor's consent, split up a claim at all, and assign any portion of it, he could do so indefinitely, and thus subject the debtor to many actions involving great outlay in costs and disbursements, not contemplated by the contract, which was limited to a single liability upon an entire demand.^ Partial assignments the common law courts have never recog- nized, because an entire debt cannot be divided into parts by the creditor without the consent of the debtor. The rule has been established, partially at least, on the ground of the entirety of the contract, because a creditor cannot sue his debtor for a part of an entire debt ; and, if he brings such an action and re- covers judgment, the judgment is a bar to an action to recover the remaining part. There must be distinct promises to main- tain more than one action.^ At law a partial assignment may be good between the parties, Schlesinger, 81 Ky. 290; In re and note; 56 Am. St. Rep. 335 and Fritz's Estate, 160 Pa. St. 150, 28 note. A. 642. 1. Smith v. Jones, 15 Johns. (N. 10. Hart V. Gregg, 32 Oliio St. Y.) 229; Willard v. Sperry, 16 502. Johns. (N. Y.) 121; Larziou v. 11. McClure v. Raben, 125 Ind. Piochi, 8 Cal. 536; Herriter v. Por- 139, 25 N. E. 179, 9 L. R. A. 477; ter, 23 Cal. 385. Pingrey on Real Prop. 1212. 2. Mandville v. Welch, 5 Wheat. 12. Ebey v. Adams, 135 111. 80, (U. S.) 277. 25 N. E. 1013, 10 L. R. A. 1G2. See, 3. Warren v. Comings, 6 Cush. also, McCall v. Hampton, 98 Ky. (Mass.) 103. 166, 32 S. W. 406, 33 L. R. A. 266 593 §§ 521, 522 OPERATION OF CONTRACTS. Oh. 17 and, if the assignor collects the money, he wonld in such case hold it as trustee of the assignee. But the assignee has no legal remedy against the dehtor who does not become a party to the agreement. The law permits the transfer of an entire cause of action from one person to another, because in such case the only inconvenience is the substitution of one creditor for another. But if assigned in parts, the debtor has to deal with a plurality of creditors. If his liability can be legally divided at all with- out his consent, it can be divided and subdivided indefinitely. He would have to ascertain the relative shares and rights of the substituted creditors. He would have, instead of a single con- tract, a number of contracts to perform. A partial assignment would impose upon him burdens which his contract does not compel him to bear.^ § 522. Partial assignment with consent of debtor. — If, however, the assignment of a part of a claim is made with the consent of the debtor, the assignee may bring his action upon it without making other holders of the demand parties to the 8uit.^ The right to sue upon the debtor's assent to a partial as- signment of a demand rests upon the theory that the assign- ment of the property in the sum transferred to the assignee is 4. Robbing v. Bacon, 3 Me. 346; (Mass.) 382; Phillips v. Edsall, Gibson v. Cooke, 20 Pick. (Mass.) 127 111. 535, 20 N. E. 801; Warren 15, 32 Am. Dec. 194; Tierman v. v. Bank, 149 111. 9, 38 N. E. 122, Jackson, 5 Pet. (U. S.) 580; James 25 L. R. A. 740; Geist's Appeal, 104 V. Newton, 142 Mass. 366, 8 N. E. Pa. St. 351; Williams v. Webb, 32 122, 56 Am. Rep. 692; Carter v. Iowa, 577; Little v. Portland, 26 Nichols, 58 Vt. 553, 5 A. 197; Na- Greg. 235, 37 P. 911; Insurance tional Exch. Bank v. McLoon, 73 Co. v. Bullene, 51 Kans. 764, 33 P. Me. 498, 40 Am. Rep. 388 ; Getchell 467 ; Welch v. Mayer, 4 Colo. App. V. Maney, 69 Me. 442; Knowlton v. 440, 36 P. 613; Snelden v. Harmes, Cooley, 102 Mass. 233; Miller v. 5 Colo. App. 477, 39 P. 68; Beards- Bledsoe, 1 Scam. (111.) 530, 32 ley v. Morguer, 73 Mo. 22. Am. Dec. 37; Philadelphia's Appeal, 5. Grain v. Aldrich, 38 Cal. 514, 86 Pa. St. 179; Grain v. Aldrich, n9 Am. Dec. 422; National Exch. 38 Cal. 514, 99 Am. Dec. 423; Mil- Bank v. McLoon, 73 Me. 498, 40 roy V. Iron Co., 43 Mich. 231, 5 Am. Rep. 388; Little v. Portland, N". 287; Tripp v. Brownell, 12 Cush. 26 Oreg. 235, 37 P. 911. !. 594 Ch. 17 ASSIGNMENTS. §§ 522-524 a good consideration for the debtor's promise to pay the as- signee, and by this promise the indebtedness to the assignor is •pro tanto discharged.^ § 523. Partial assignment — City as debtor — Consent. — The same rule applies to a municipal corporation. The contract of a city in accepting and agTecing to pay a part of a demand against it to an assignee of its creditor, will, in the absence of any statute to the contrary, be treated as is a contract of a pri- vate person and the city will be liable.^ And so when a city splits up a demand of a contractor against it by executing war- rants therefor in different amounts, it cannot escape liability on one of the warrants on the ground that the contract was entire, and that an action had previously been brought on another warrant.^ And by drawing such warrants the city consents to the assignment by the contractor of such parts of his claim, so as to entitle his assignees thereof to sue separately therefor.^ But in Pennsylvania the court refused to apply this rule to a debt due from a municipal corporation, on the ground that the policy of the law is against permitting individuals by their private contracts to embarrass the principal officers of a muni- cipality.* But there is no ground for such a decision and is against the weight of authority. § 524. Partial assignment in equity. — ^It is established in equity that a partial assignment may be sustained. In order that a court will take jurisdiction there must be a special fund, sum of money, or debt actually existing or to become so in futuro, upon which an assigiiment may operate, and the agree- ment, direction for payment, or order must be in effect an as- 6. James v. Newton, 142 Mass. 2. Little v. Portland, 26 Oreg. 366, 8 N. E. 122, 56 Am. Rep. 692. 235, 37 P. 911. See, also, Taylor v. Lj-nch, 5 Gray 3. Little v. Portland, 26 Oreg. (Mass.), 49; Lannan v. Smith, 7 235, 37 P. 911; Seattle v. Liber- Gray (Mass.), 150; Bourne v. man, 9 Wash. 276, 37 P. 433. Cobat, 3 Met. (Mass.) 305. 4. Philadelphia's Appeal. 86 Pa. 1. James v. Ne-\vton, 142 Mass. St. 179. 366, 8 N. E. 122, 56 Am. Rep. 092. 595 §§ 524, 525 OPERATION OF CONTEACTS. Ch. lY signmeut of that fund, or of some definite portion of it.^ And an assignee of a part of a debt may enforce, in equity, its pay- ment and if it be a fund be may enforce its payment to him, with notice of the assignment to the holder who has no superior claim to it.^ While a part of a debt or chose in action is not assignable at law, it may be assigned in equity; and in such case a trust will be created in favor of an equitable assignment of the fund, and will constitute an equitable lien upon it.^ § 525. Difference between an equitable and legal assign- ment. — The equitable modification of the common law rule was an outgrowth of a commercial era, made necessary to adapt to the condition of a trading people. In many cases, di- rectly or indirectly, do circumstances create assignments of parts of funds, in dealing through servants, tenants, consignees, bankers and other agencies. An assignment to be valid at law must be of a debt or fund in existence at the time, and of the whole thereof, or of a part of a debt or fund then in existence, and the assignment or order transferring the fund must be accepted by the debtor or person holding the fund. In an equitable assignment of a specific 1. Wright V. Ellison, 1 Wall. (U. 37 N. E. 312; Sykes v. Bank, 2 S. S.) 16; Peugh v. Porter, 112 U. S. Dak. 242, 49 N. W. 1058. 737, 5 S. Ct. 622; National Exch. 3. Phillips v. Edsall, 127 111. Bank v. McLoon, 73 Me. 498, 40 535, 20 N. E. 801 ; Warren v. Bank, Am. Rep. 388 ; Grain v. Aldrich, 38 149 111. 9, 38 N. E. 122, 25 L. R. A. Cal. 514, 99 Am. Dec. 423; Parker 746; Kingsbury v. Burrill, 151 V. Syracuse, 31 N. Y. 376; Brill v. Mass. 199, 24 N. E. 36; Bower v. Tuttle, 81 N. Y. 454, 37 Am. Rep. Hadden, 30 N. J. Eq. 171; Ether- 514; Risley v. Bank, 83 N. Y. 318, idge v. Vernoy, 74 N. Car. 800; 38 Am. Rep. 421 and note; Fordyce Grain v. Aldrich, 38 Cal. 514, 99 V. Nelson, 91 Ind. 147; County v. Am. Dec. 423; County v. Hinkley, Hinkley, 62 Iowa, 627, 17 N. 915; 62 Iowa, 637, 17 N. 915; James v. James v. Newton, 142 Mass. 366, 8 Newton, 142 Mass. 366, 8 N. E. 122, N. E. 122, 56 Am. Rep. 692; Dan- 56 Am. Rep. 692; National E.xch. iels V. Weinhard, 53 Ga. 359 ; Canty Bank v. McLoon, 73 Me. 498, 40 V. Latterner, 31 Minn. 239, 17 N. Am. Rep. 388; Bank v. Kimber- 385; Bank v. Kimberlands, 16 W. lands, 16 W. Va. 555. Compare Va. 555. Burnett v. Crandall, 63 Mo. 410; 2. Savage v. Gregg, 150 111. 161, Gardner v. Smith, 5 Heisk. (Tenn.) 256. 596 Ch. 17 ASSIGNMENTS. §§ 525, 526 debt or fund, it is not an essential element that the debt should have blcen earned or the fund be in esse at the time of the as- signment or order transferring the debt or fund, or that the assignment or order transferring the specific debt or fund, or a part thereof, should be accepted by the debtor or holder of the specific fund.^ When the subject of the assignment is not in esse and may never be, and cannot be reached by garnishment, then upon such assignment, no action at law can be maintained. To make an assignment valid at law, the thing assigned must have an actual existence at the date of the assignment.^ § 526. When partial assignment will be sustained. — Partial assignments will be sustained in equity, in all cases where it can be done without detriment to the debtor or fund-holder, when- ever equitable and just results may be accomplished. This doc- trine is upheld by the courts.^ So in equity, an order given by a debtor to his creditor upon a third person having funds of the debtor, to pay the creditor out of such fund, is a binding equit- able assignment of so much of the funds.'* It is a credit on. the fund, and must amount to an assignment of so much of the debt; and though the law does not admit an assignment of a chose in action, a court of equity will, and any words will do, no particular words being necessary thereto.^ The modern decisions fully protect the equitable rights of the assignee of choses in action.^ 1. Sykes v. Bank, 2 S. Dak. 242, 431 ; Rodick v. Gandell, 1 De G. M. 49 N. W. 1058. & G. 7G3, 12 Beav. 325; Addison v. 2. Grain v. Aldrich, 38 Cal. 514, Cox. L. R. 8 Ch. 76; Brice v. Ban- 99 Am. Dec. 423. nister, L. R. 3 Q. B. 569; Ranken 3. Row V. Dawson, 1 Ves. Sr. v. Alfaro, L. R. 5 Ch. D. 786; Ex 431; Yeates v. Groves, 1 Ves. Jr. parte Hall, L. R. 10 Ch. D. 615; 481; Ex parte South, 3 Swanst. Hopkinson v. Forster, L. R. 19 Eq. 392; Fitzgerald v. Stewart, 2 Sim. 74; Thompson v. Simpson, L. R. 5 33, 2 Russ. & My. 457; Lett v. Mor- Ch. 659; Brown v. Bateman, L. R. ris, 4 Sim. 607 ; Watson v. Welling- 2 C. P. 272 ; Field v. Magaw, L. R. ton, 1 Russ. & My. 602. 4 C. P. 660; Tibbetts v. George, 5 4. Burn v. Carvalho, 4 Mylne & Ad. & El. 107. Cr. 690. 6. Morton v. Naylor, 1 Hill (N. 5. Row V. Dawson, 1 Ves. Sr. Y.), 583; Bradley v. Root, 5 Paige 597 §§ 526, 527 OPEEATION OF CONTRACTS. Ch. 17 So a holder of a fire insurance policy, after a loss, may as- sign in writing an interest in tlie same to a creditor to the ex- tent of the creditor's debt; this will prevent an attachment of this fund as the property of the assig-nor.^ Equitable assign- ments of part of the chose in action is recognized by all the courts, where equity and good conscience require it.^ § 527. Modification by statute. — Many of the States have passed laws allowing an assignee of a chose of action to prose- cute the claim in his own name. This is now the law of Eng- land.i In many States a new system of pleading is adopted, and equity and law are administered in the same court by the same judge. So the distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished. But law and equity as two distinct systems, still remain. It is the distinction between the forms of actions at law and suits in equity only that has been abol- ished. And where the facts stated and the subject matter show that the controversy is equitable, the suit must be tried in equity and not at law.^ (N. Y.), 632; Marshall v. Meech, H. 298; Public Schools v. Heath, 51 N. Y. 140, 10 Am. Rep. 572; 15 N. J. Eq. 22; Claffin v. Kimball, Alger V. Scott, 54 N. Y. 14; Field 52 Vt. 7; Christmas v. Russell, 14 V. New York, 2 Seld. (N. Y.) 179; Wall. (U. S.) G9; Trist v. Child, 21 Risley v. Bank, 83 N. Y. 318, 38 Wall. (U. S.) 441; James v. New- Am. Rep. 421 and note; Ether idge V. ton, 142 Mass. 366, 56 Am. Rep. Vernoy, 74 N. Car. 809; Philadel- 692, 8 N. E. 122; National Exeh. phia's Appeal, 86 Pa. St. 179. Bank v. McLoon, 73 Me. 498, 40 7. Daniels v. Meinhard, 53 Ga. Am. Rep. 388; Canty v. Latterner, 359. 31 Minn. 239, 17 N. 385; Bank v. 8. Stanberry v. Smythe, 13 Ohio Kimberlands, 16 W. Va. 555; St. 495; Dowell v. Cardwell, 4 County v. Hinkley, 62 loAva. 637, Saw. C. C. 217; Lapping v. Duffy, 17 N. 915. Compare Burnett v. 47 Ind. 51; Whitney v. Cowan, 55 Crandall, 63 Mo. 410; Gardner v. Miss. 626; Warren v. Bank, 149 111. Smith, 5 Heisk. (Tenn.) 25fi. 9, 38 N. E. 122, 25 L. R. A. 746; 1. 36 & 37 Vict. c. 66, sec. 25, Little V. Portland, 26 Oreg. 235, 37 subsec. 6. P. 911; Conway v. Cutting, 51 N. 2. Sykes v. Bank, 2 S. }')ak. 242, H. 407; Christie v. Sawyer, 44 N. 49 N. W. 1058. 598 CHAPTER XVIII. Impairment of the Obligation of Contracts and the Right to Contract. ARTICLE I. The Contract. Section 528. Reduction of Periods of Limitations. 529. Gold Clause. 530. Salaries of Public Officers. 531. Decisions Under Prior Statutes. 532. Retrospective Laws. 533. Conflict of Laws. § 528. Reduction of periods of limitations. — It is well set- tled that a reasonable limitation of the time within which a material contractual obligation may be enforced by suit does not impair the obligation of the contract in the sense of the con- stitutional prohibition ; hence, a limitation to one year, or to six months, is not unreasonable, and does not impair the obligation of the contract nor deprive the obligee of an adequate remedy.^ Hence, the fact that prior to the passage of an act, there was no statutory limitation of the time within which a deed must be made by the tax collector, after the period allowed for redemp- tion, does not render the last act unconstitutional as impairing the obligation of the contract of sale, provided the last act is a reasonable limitation of the time within which a remedy may be allowed for the enforcement of the obligation after the passage of the act.^ Of course, this applies where no limitation existed 1. Terry v. Anderson, 95 U. S. S. Ct. 834; Wheeler v. Jackson, 137 628; Tuttle v. Block, 104 CaL 443, U. S. 245, 11 S. Ct. 76; Korn v. 38 P. 109 ; Herekholf , etc. Lum. Co. Browne, 64 Pa. St. 55. V. Olmstead, 85 Cal. 80, 24 P. 648 ; 2. Tuttle v. Block, 104 Cal. 443, Vance v. Vance, 108 U. S. 514, 2 38 P. 109. See. also, McGahey v. 599 §§ 528, 529 OPEEATION OF CONTRACTS. Ch. 18' when the contract was made. If any law of limitations existed at the time the contract was made, that was a part of the con- tract and could not he changed, for laws relating to the validity, constrnction, discharge, and enforcement are part of the eon- tract.^ § 529. Gold clause. — While the clause of the constitution pro- hibiting legislation impairing the obligation of contracts is not binding upon Congress, yet Congress, in certain cases, has no in- herent power to legislate. In the various decisions of the United States Supreme Court sustaining the validity of government notes as payment, exceptions have been uniformly made of con- tracts stipulating for specific kind of money. And express con- tracts for payment of coin have been treated like contracts for the delivery of any specific commodity. A contract to pay a cer- tain number of dollars in gold coin is, in legal import, nothing else than an agreement to deliver a certain weight of standard gold, to be ascertained by a count of coins, each of which is cer- tified to contain a definite portion of that weight. It is a con- tract to deliver an equal weight of bullion or equal fineness.^ A party agreeing to pay or deliver gold coin at a future day not only creates a debt which he agrees to pay or discharge, but he also waives the privilege which the law would have guar- anteed to him had he not voluntarily renounced it, and takes upon himself an obligation to pay it in a specific kind of lawful money, and nothing else. The waiver and obligation are es- sential conditions and parts of the consideration of the contract, without which the contract w^ould not have been made. The agreement to pay in coin is as much a part of the consideration as the agreement to pay at all, and the presumption is that an ample equivalent has been received for the promise. The par- ties are competent to contract, the contract is not against public Virginia, 135 U. S. 662, 10 S. Ct. Wall. (U. S.) 535; MeCracken v. 972; People v. Campbell, 59 Cal. Hay ward, 2 How. (U.S.) 608. 243. 1. Bronson v. Rodea, 7 Wall. (U. 3. Edwards v. Kearzey, 96 U. 8. S.) 229; Butler v. Horwitz, 7 Wall. 595; Von Hoffman v. Quincey, 4 (U. S.) 258. 600 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 529, 530 policy, is not prohibited by law, is payable in a lawful kind of money, and is a lawful contract.^ Congress cannot interfere with and assume to reflate the business dealing of citizens except under some power expressly or impliedly granted by the constitution. And as the United States Supreme Court has already decided that contracts to pay gold coin are simply engagements for the delivery of a specific commodity, and as Congress cannot say that a citizen shall not be permitted to make and enforce a contract for the delivery of a specific commodity, so it cannot prohibit a citizen from dealing in gold coin. § 530. Salaries of public officers. — A legislative act creating an office, or fixing a salary, is not a contract within the prohi- bition of the Federal constitution forbidding the States to pass laws impairing the obligation of contracts.^ Of course, the State constitution can control this matter which may declare for the permanency of salaries of public officers.* The legislature may provide for compensating all public of- ficers by salaries. Or if the legislature should see proper to do so, there is no provision of the constitution that will forbid exacting from persons requiring, and who are specially bene- fited by the performance of official services, a reasonable com- pensation therefor, to be paid into the public treasury to re- imburse the public for the expense incurred in promoting and 2. Carpenter v. Atherton, 25 Cal. ford v. Woodward, 158 111. 122, 41 564. See, also, Wallace v. Eldredge, N. E. 1097, 29 L. R. A. 593 and 27 Cal. 498 ; Harding v. Cowing, 28 note. Cal. 213; Trebilcock v. Wilson, 12 3. Butler v. Pennsylvania, 10 Wall. (U. S.) 687; Maryland v. How. (U. S.) 402; Hoboken v. Railroad Co., 22 Wall. (U. S.) 105; Gear, 3 Dutch. (N. J.) 265; State Juilliard v. Greenman, 110 U. S. v. Smedes, 26 Miss. 47; Swann v. 421, 4 S. Ct. 122; Hagar v. Re- Buck, 40 Miss. 268. clamation Dist., Ill U. S. 701, 4 4. Koontz v. Franklin. 75 Pa. S. Ct. 663; Woodruflf v. Mississippi, St. l.i;. 162 U. 8. 29?,. 16 S. Ct. 820: EpI- 601 §§ 530, 531 OPEKATION OF CONTRACTS. Ch. 18 maintaining such offices. And such process of raising money is no impairment of contract.^ § 531. Decisions under prior statutes. — Courts must declare what the law is and has been, and not what it shall be in the future. Hence, they are not bound by their prior decisions, for they may correct their errors,^ And so the construction placed upon one statute implies no obligation on its part to put the same construction upon a different statute, though the lan- guage of the two may be similar.^ The United States Supreme Court has no jurisdiction be- cause a State court changes its views in regard to the proper construction of its State statute, although the effect of such judgment may be to impair the value of what the State court had before that held to be a valid contract. But where a case is brought in the United States courts, comity generally re- quires of the United States Supreme Court that in matters re- lating to the proper construction of the laws of the constitution of its own State, the United States Supreme Court should fol- low the decisions of the State court; yet in exceptional cases' the United States Supreme Court has refused to be bound by such rule, and has refused to follow the later decisions of the State court. Thus, a writ of error has been dismissed in the United States Supreme Court,* where the judgment sought to be reviewed was that of a State court, holding that certain bonds are void upon precisely the same facts that the United 5. Harrison v. Willis, 7 Heisk. 9 P. 123; State v. Ream, 16 Neb. (Tenn.) 35, 19 Am. Rep. G04; 681, 21 N. 398; Henderson v. State, State V. Howran, 8 Heisk. (Tenn.) 137 Ind. 552, 36 N. E. 257, 24 L. R. 824; Adae v. Zangs, 41 Iowa, 536; A. 469. Steele v. Railroad Co., 43 Iowa, 1. Beveridge v. Livingston, 54 109; State v. Verwayne, 44 Iowa, Cal. 54. 621; State v. Board, 4 Neb. 537, 19 2. Wood v. BVady, 150 U. S. 18, Am. Rep. 641 ; Perce v. Hallett, 13 14 S. Ct. 6. R. I. 363; Lee County v. Abrahams, 3. Gelpcke v. Dubuque, 1 Wall. 34 Ark. 166; Murphy v. State, 38 (U. S.) 175. Ark. 514; Hewlett v. Nutt, 70 N. 4. Railroad Co. v. McClure, 10 Car. 263; State v. Judges, 21 Ohio Wall. (U. S.) 511. St. 1 ; State v. Fergus, 19 Nev. 247, 602 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 531, 532 States Supreme Court in another case"'' held were valid. There was no subsequent legishitive act impairing their obligations, and hence the United States Supreme Court had no jurisdic- tion to review the judginent of the State court.® There must be some subsequent act of the legislature to which effect lias been given by the judgment of the State court, before there can be an impairment of obligations of contracts ; a change in the construction of an act is not an impairment.^ Where there are two grounds for the judgment of a State court, one only of which involves a Federal question, and the other is decided upon an independent ground and broad enough to maintain a judgment sought to be reviewed, the United States Supreme Court will not look into the Federal question.* § 532. Retrospective lav^rs. — A retrospective statute affect- ing vested rights resulting from contracts is unconstitutional. But this doctrine does not apply to remedial statutes, which may be retrospective in their nature, provided they do not im- pair contracts, and only go to confirm rights already existing.^ The constitutional prohibition does not deny remedial legis- lation, nor stand in the way of statutes passed to cure some defect or omission in former proceedings or enactments.^ A 5. Gelpcke v. Dubuque, I Wall. 131; Beaupre v. Noyes, 138 U. S. (U. S.) 175. 397, 402, 11 S. Ct. 296. 6. Bacon v. Texas, 163 U. S. 207, 1. Wynne v. Wynne, 2 Swan 16 S. Ct. 1023. (Tenn.), 205; Collins v. Railroad 7. New Orleans W^ater Works Co. Co., 9 Heisk. (Tenn.) 847. V. Sugar Refining Co., 125 U. S. 2. Shields v. Land Co., 94 Tenn. 18, 8 S. Ct. 741; Central Land Co. 123, 28 S. W. 668, 26 L. R. A. 509, Laidley, 159 U. S. 103, 16 S. Ct. 40 Am. St. Rep. 700; Demoville v. 80; Bacon v. Texas, 163 U. S. 207, Davidson County, 87 Tenn. 223; 16 S. Ct. 1023. 10 S. W. 353; Munn v. Illinois, 94 8. Bacon v. Texas, 163 U. S. 207, U. S. 113; Beer Co. v. Massaehu- 16 S. Ct. 1023; Rutland R. R. Co. setts, 97 U. S. 25; Stone v. Missis- V. Raiload Co., 159 U. S. 630, sippi, 101 U. S. 814; Ewell v. 16 S. Ct. 80: Gillis v. Stineh- Daggs, 108 U. S. 150, 2 S. Ct. 408; field, 159 U. S. 608, 16 S. Ct. Gross v. Mort. Co., 108 U. S. 488, 131; Seneca Nation v. Christy, 162 2 S. Ct. 940; Satterlee v. Matthew- U. S. 283, 16 S. Ct. 828; Eustis v. son, 2 Pet. (U. S.) 412. BoUes, 150 U. S. 361, 14 S. Ct. 603 §§ 532, 533 OPEKATION OF CONTEACTS. Cll. 18 law that gives validity to a contract cannot impair the obliga- tion of that contract.^ A stipulation in the face of a note for usurious interest can be taken advantage of by the maker of the note when due ; but he has no such vested right in this defense or the contract or the usury statutes, so that the law may not be repealed, and the note made collectible by a retrospective law.'* And so a loan of money made in one State by a corporation in another State, though not valid at the time because contrary to the law of the State where made, may be rendered collectible by a subsequent law. The latter law, though destroying a com- plete defense to any suit brought for the collection of the loan, does not impair the obligation of the contract. It enables the parties to enforce the contract they intended to make, and does not impair the obligation.^ And so a statute curing a defective acknowledgment that renders a corporate charter void, and thereby defeats an exist- ing liability of the corporators under the contract of the com- pany, does not impair any contract obligation of the other par- ties to the contract.® § 533- Conflict of laws. — The construction, so far as contract obligations under a contract are concerned, constitutes a part of the law as much as if embodied in it. So far does this doc- trine extend, that where a statute of two States, expressed in the same terms, is construed differently by the highest courts, they are treated by the United States Supreme Court as dif- ferent laws, each ernbodying the particular construction of its own State, and enforced in accordance with it in all cases aris- ing under it.^ The rule of construction adopted by the highest court of the State, in construing its own constitution and one of its own 3. Satterlee v. Matthewson, 2 6. Shields v. Land Co., 94 Tenn. Pet. (U. S.) 412. 123, 28 S. W. 668, 26 L. R. A. 509, 4. Ewell V. Daggs, 108 U. S. 150, 40 Am. St. Rep. 700. 2 S. Ct. 408. 7. Louisiana v. Pilsbury. 105 U. 5. Gross V. Mort. Co., 108 U. S. S. 278, 294. 488, 2 S. Ct. 940. 604 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 533, 534 etatiites in a case not involving any question re-examinable in the United States Supreme Court under the twenty-fifth sec- tion of the judiciary act, must be regarded as conclusive in this court.^ The construction given to a statute of a State by the highest judicial tribunal of a State is a part of the statute, and is as binding upon the court of the United States as the text of the statute;^ though the United States Supreme Court can inquire as to the validity of the statute itself, as construed by the State court, where properly presented.^" ARTICLE II. Corporate Charters and Franchises. Section 534. Charter Grantee. 535. Exclusive Franchise. 536. State Regulations of Corporations. 537. Subsequent Acts Regulating Railroad Companies. 538. Establishing Maximum Rates. 539. Legislature Must not Destroy a Business by Establishing Maximum Rates. 540. Private Contracts. 541. Reservation in Charter, § 534- Charter grantee. — A charter is a contract between the State and the corporation receiving it.^ The grantee of the charter takes nothing by implication, and the State is not fur- ther bound, nor interested, than can be read in the act.^ The 8. Provident Institutions v. Mas- idence Bank v. Billings, 4 Pet. (U. eachusetts, 6 Wall. (U. S.) 611; S.) 514; Wales v. Stetson, 2 Mass. Randall v. Brigham, 7 Wall. (U. 149; State Bank v. Knoop, 16 How. S.) 523; Morley v. Railroad Co., (U. S.) 369; Dodge v. Woolsey, 18 146 U. S. 162, 13 S. Ct. 54, How. (U. S.) 331; Jefferson 9. Leffing^vell v. Warren, 2 Branch Bank v. Shelly, 1 Black (U. Black (U. S.) 599, 603. S.), 436. 10. Morley v. Railroad Co., 146 2. Charles River Bridge v. War- U. S. 102, 13 S. Ct. 54. ren Bridge, 11 Pet. (U. S.) 420; 1. Dartmouth College v. Wood- Stein v. Bienville Co., 141 U. S. 67, ward, 4 Wheat. (U. S.) 518; Prov- 11 S. Ct. 892; Syracuse Water Co. 605 § 534 OPEEATION OF CONTRACTS. Oh. 18 doctrine now is tliat a strict construction is required of public grants of franchises and it denies to the grantee anything by implication,^ though there may be incidental rights.* The corporation is entitled to the benefits of the contract," and they cannot be taken away by statute. Thus, a proviso exempting the company's net earnings up to a certain amount, is not a mere gratuity, but a contract, and the exemption can- not be repealed by statute.^ The rights of the public are never presumed to be surren- dered to a corporation, unless the intention to surrender clearly appears in the law.^ So a franchise must be created by express terms and cannot be inferred from the mere silence of the charter.'' When a corporation is engaged in a business of such a character that the public are directly interested in its proper management, it is subject to such reasonable regulations as will secure the ends of its creation. The State must see that the laws are enforced as will enable the State to know whether cor- porations are properly exercising their corporate privileges.* What is not granted in terms to a corporation, or is incidental thereto, is reserved to the State.* V. Syracuse, 116 N. Y. 167, 22 N. E. 4. Mintern v. Earu, 23 How. 38, 5 L. R. A. 546; In re Brooklyn, (U. S.) 435; Barnett v. Deni- 143 N. Y. 596, 38 N. E. 983, 26 L. son, 145 U. S. 135, 12 S. Ct. R, A. 270; Power v. Athens, 99 N. 819; Hamilton Gaslight Co. v. Y. 592, 2 N. E. 609; Chenango Hamilton City, 146 U. S. 258, 13 Bridge Co. v. Bridge Co., 27 N. Y. S. Ct. 90. 87. 5. Commonwealth v. Railroad Co., 3. Stein v. Bienville Co., 141 U. 164 Pa. St. 252, 30 A. 145. S. 67, 11 S. Ct. 892; Proprietors v. 6. Perrin v. Canal Co., 9 How. Wheeley, 2 Barn. & Ad. 793; Syra- (U. S.) 192. cuse Water Co. v. Syracuse, 116 N. 7. Zanesville v. Gaslight Co., 47 Y. 167, 22 N. E. 38, 5 L. R. A. 546; Ohio St. 31, 23 N. E. 55. In re Brooklyn, 143 N. Y. 596, 38 8. State v. Ins Co., 50 Ohio St. N. E. 983, 26 L. R. A. 270. The 252, 33 N. E. 1056. case of Ogden v. Gibbons, 4 Johns. 9. Providence Bank v. Bil- Ch. (N. Y.) 150, and Newburgh, lings, 4 Pet. (U. S.) 515; etc., Turnpike Co. v. Welter, 5 Charles River Bridge v. War- Johns. Ch. (N. Y.) 101, 9 Am. ren Bridge, 11 Pet. (U. S.) 544; Dee. 274, were overruled in Charles Thorpe v. Railroad Co., 27 Vt. 140, River Bridge v. Warren Bridge, 11 62 Am. Dec. 625; Fertilizing Co. v. Pet. (U. S.) 548. Hyde Park, 97 U. S. 659; Georgia 606 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 535, 536 § 535- Exclusive franchise. — Whore the charter gives no ex- clusive franchise in terms, none can be inferred.^ The legisla- ture cannot be restricted in its grants of corporate franchises which are within constitutional limitations, save by its own ex- press grant, even though the consequences of such grant may be to entail loss upon existing corporations through competition.^ But the legislature cannot consolidate similar corporations un- der a prior charter of the original corporation whose charter was unalterable, and pass to the merging corporations special privileges and immunities prohibited by the constitution.^ § 536, State regulations of corporations. — Charters are con- tracts, but it does not follow that the rights secured by them are not subject to State regulation. The rights and privileges which come into existence under a charter are placed upon the same footing with other legal rights and privileges of the citi- zens, and subject in like manner to proper rules for their due regulation. The rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and cor- porations.* The charter is taken subject to the understanding that in its operation affecting the interests of society, it will be controlled by such reasonable enactments as may be passed for the preser- vation of the persons, lives and property of the people, where Banking Co. v. Smith, 128 U. S. Bridge v. Smith, 30 N. Y. 44; 174, 9 S. Ct. 47; State v. Coke Co., Shorter v. Smith, 9 Ga. 517; Col- 34 Ohio St. 572, 32 Am. Rep. 390. lins v. Sherman, 31 Miss. 679. 1. In re Brooklyn, 143 X. Y. 596, 3. People's Gas Light and Coke 38 N. E. 983, 26 L. R. A. 270. Co. v. Chicago, 194 U. S. 1, overrul- 2. Charles River Bridge v. War- ing in part People v. Gas Light ren Bridge, 11 Pet. (U.S.) 548; In and Coke Co., 205 III. 482, 98 Am. re Brooklyn, 143 N. Y. 596, 38 N. E. St. Rep. 244. The Illinois Supreme 983, 26 L. R. A. 270; Butchers, etc.. Court held this merger good. Co., V. Crescent City, etc., Co., Ill 4. Gorman v. Railroad Co., 26 U. S. 746, 4 S. Ct. 652; Fort Plain Mo. 441, 72 Am. Dec. 220. 607 §§ 536-538 OPEEATION OF CONTRACTS. CTl. IS such enactments do not contravene the expressed provision of the charter.^ § 537- Subsequent acts regulating railroad companies. — The right to use the parcel of land appropriated to a railroad does not deprive the legislature of the power to enact such regu- lations, and impose such liabilities for injuries suffered from the mode of using the road, as the occasion and circumstances may reasonably justify.^ So a statute making railroad com- panies responsible for injuries by fire communicated from their locomotives applies to railroads established before as well as since its passage.^ And so an act requiring all railroads that are in running order to be fenced is not unconstitutional as im- pairing the rights given to a railroad by its previously granted charter, by subjecting it to an increased burden.^ But a statute which provides that certain classes of employers shall give their dicharged employes the reason for their dis^ charge, is unconstitutional. A statute which undertakes to make it the duty of incorporated railroad, express, telegraph, and other companies to engage in correspondence of this kind with their discharged employes, is void.* § 538. Establishing maximum rates. — A law of the legisla- ture establishing a reasonable maximum rate of charges for 5. Thorpe v. Railroad Co., 27 Vt. eniacher v. Railroad Co., 41 Iowa, 140, 62 Am. Dec. 625; Hart v. 297, 20 Am. Rep. 592; Drady v. Railroad Co., 13 Met. (Mass.) 99. Railroad Co., 57 Iowa, 393, 10 N. 46 Am. Dec. 719 and note; Ross v. 754; Grissell v. Railroad Co., 54 Railroad Co., 6 Allen (Mass.), 87; Conn. 447, 9 A. 137, 1 Am. St. Rep. Pierce v. Railroad Co., 105 Mass. 138; Un. Pac. R. R. Co. v. De Busk, 199. 12 Colo. 294, 20 P. 752, 3 L. R. A. 1. Pierce v. Railroad Co., 105 350, 13 Am. St. Rep. 221; State v. Mass. 199. Manuf. Co., 18 R. I. 16, 25 A. 246, 2. Lyman v. Railroad Co., 4 Cush. 17 L. R. A. 856. (Mass.), 288; Mathews v. Railroad 3. Railroad Co. v. McClelland, Co., 121 Mo. 298, 24 S. W. 591, 25 25 111. 140; Boston, etc. R. R. Co. L. R. A. 161 and note; Chapman v. County, 79 Me. 386, 10 A. 113. V. Railroad Co., 37 Me. 92; Pratt V. 4. Wallace v. Railroad Co., 04 Railroad Co., 42 Me. 579; Hooksett Ga. 732, 22 S. E. 579. V. Railroad Co., 38 N. H. 242; Rod- 608 Cli. 18 IMPAIRMENT OF OBLIGATION. § 538 the transportation of passengers or property on railroads in a State, is a valid and constitutional law. Such a law or regula- tion does not impair the obligation of the contract in the charter of the railway company.^ When an employment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen ; or when it becomes a practical mon- opoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community, it is a subject for regulation by legislative power. Thus, it is within the power of the State to regulate the price at which water shall be sold by one who enjoys a virtual monopoly of the sale.^ It is competent for the legislature to fix the maximum charges by individuals keeping public warehouses for storing, handling and shipping grain, and that, too, when such persons had de- rived no special privileges from the State, but were, as citizens of the State, exercising the business of storing and handling grain for individuals.^ 1. People V. Guthrie, 149 111. 360, 38 N. E. 549; Munn v. Illinois, 94 U. S. 113; Chicago v. Railroad Co., 94 U. S. 155; Budd v. Mew York, 143 U. S. 517, 12 S. Ct. 468, ex- plaining Chicago, etc. R. R. Co. v. Minnesota, 134 U. S. 418, 10 S. Ct. 462; People v. Budd, 117 N. Y. 1, 22 N. E. 670, 5 L. R. A. 559 and note, 15 Am. St. Rep. 460 and note. 2. Spring Valley Water Works v. Schottler, 110 U. S. 347, 4 S. Ct. 48. 3. Munn v. People, 69 111. 80; Ruggles V. People, 91 111. 256; People V. Budd, 117 N. Y. 1, 22 N. E. 670, 682, 5 L. R. A. 559 and note, 15 Am. St. Rep. 460 and note; Munn V. Illinois, 94 U. S. 113; Budd V. New York, 143 U. S. 517, 12 S. Ct. 468. See, also, Dow v. Beidelman, 125 U. S. 680, 8. S. Ct. 1028; Railroad Co. v. Railroad Co., 30 Ohio St. 604; State v. Gas Co., 34 Oluo St. 592; Davis v. State, 64 Ala. 58, 44 Am. Rep. 128; Baker v. State, 54 Wis. 368, 12 N. 12; Nash V. Page, 80 Ky. 539, 44 Am. Rep. 490; Girard Storage Co. v. Soth- ward Co., 105 Pa. St. 248; Savryer V. Davis, 136 Mass. 239, 49 Am. Rep. 27; Brechhill v. Randall, 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695, Stone v. Railroad Co., 62 Miss. 607, 52 Am. Rep. 193; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201; Central Union Tel. Co. V. Bradbury, 106 Ind. 1, 5 N. E. 721; Central Union Tel. Co. v. State, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114 and note; Chesa- peake and Potomac Telephone Co. V. Tel. Co., 66 Md. 399, 7 A. 809. 59 Am. Rep. 167 and note; Delaware, etc. R. R. Co. V. Stock-yard Co., 45 N. J. Eq. 50, 17 A. 146, 6 L. R. A. G09 §§ 538, 539 OPERATION OF CONTKACTS, Ch. 18 It is the right of the State to establish limitations upon the power of railroad companies to fix the price at which they shall carry passengers and freight, and the question is of the same character as that involved in fixing the charges to be made by the persons engaged in the warehousing business/ And so the legis- lature can declare what shall be a reasonable compensation for the services of persons exercising a public employment, or fix a maximum beyond which any charge made will be unreasonable.^ § 539. Legislature must not destroy a business by establish- ing maximum rates. — ^While the legislature may itself fix a maximum beyond which any charge would be unreasonable, in respect to services rendered in a public employment, or for the use of property in which the public has an interest, it is sub- ject to the proviso, however, that such power of limitation or regulation is not without limit, and is not a power to destroy, or a power to compel the doing of the services without reward, or to take private property for public use without just compen- sation or without due process of law.^ The United States Supreme Court has adjvidged in numerous cases that the legislature of a State has the power to prescribe the charges of a railroad company for the carriage of persons and merchandise within its limits, subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation ; and what is done must not amount to a regula- lation of foreign or interstate commerce.^ 855 and note; Zanesville v. Gas- light Co., 47 Ohio St. 1, 2 N. E. 60. 4. Wabash, etc. R. R. Co. v. Il- linois, 118 U. S. 557, 7 S. Ct. 4. 5. Dow V. Beidelman, 125 U. S. 680, 8 S. Ct. 1028. 1. Smyth V. Ames, 169 U. S. 466, 18 S. Ct. 418, 171 U. S. 361, 18 S. Ct. 888; Dow v. Beidelman, 125 U. S. 680, 8 S. Ct. 1028. 2. Georgia Banking Co. v. Smith, 128 U. S. 174, 9 S. Ct. 47. See, also. Stone v. Railroad Co., 116 U. S. 347, 352; Stone v. Trust Co. 116 U. S. 307; Munn v. Illinois, 94 U. S. 113; Chicago, etc. R. R. Go. V. Iowa, 94 U. S. 155; Peik v. Rail- road Co., 94 U. S. 164; Chicago, etc. R. R. Co. V. Ackley, 94 U. S. 179; Winona, etc. R. R. Co. v. Blake, 94 U. S. 180; Stone v. Wis- consin, 94 U. S. 181; Ruggles v. II- 610 Cli. 18 IMPAIRMENT OF OBLIGATION. § 540 § 540. Private contracts — ^Where private contracts are un- affected by any public interest or duty to person or govern- ment, and the parties are capable of contracting, then the legis- lature cannot interfere for the purpose of prohibiting the con- tract or controlling the terms thereof.^ But the government may regulate by law so that a person who ha^ contracted to re- ceive a yard of cloth or a bushel of corn, shall not be required to accept a short yard or light bushel as the seller may choose to impose upon him,* Because a laAV is unjust, impolitic or oppressive, it will not authorize a court to declare it illegal, unless it violates some specific provision of the constitution. A law may be unjust in its operation, or even in the principles upon which it was founded ; but that will not justify a court in expanding the prohibitions in the constitution beyond tlieir natural and orig- inal meaning, in order to remedy an evil in any particular case. Such extension would impair the obligation of contracts.^ linois, 108 U. S. 526, 2 S. Ct. 832; 111. Cent. R. R. Co. v. Illinois, 108 U. S. 541, 2 S. Ct. 839; St. Louis, etc, R. R. Co. V. Gill, 156 U. S. 649, 657, 15 S. Ct. 484; Covington, etc. R. R. V. Sanford, 164 U. S. 578, 17 S. Ct. 198; Chicago, etc. R. R. Co. V. Minnesota, 134 U. S. 418, 10 S. Ct. 462, 702; Reagan v. Trust Co., 154 U. S. 362, 14 S. Ct. 1060; Chicago, etc. R. R. Co. v. Chicago, 166 U. S. 226, 241, 17 S. Ct. 581; Chicago, etc. R. R. Co. v. Wellman, 143 U. S. 339, 344, 12 S. Ct. 400; Budd V. New York, 143 U. S. 517, 12 S. Ct. 468. 3. State V. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621 and note, 25 Am. St. Rep. 863 and note; State v. Loomis, 115 Mo. 307, 22 S. W. 350, 21 L. R. A. 789 and note; Godcharles v. Wigeman, 113 Pa. St. 431, 6 A. 354; State v. Coal and Coke Co., 33 W. Va. 188, 10 S. E. 288, 6 L. R. A. 359, 25 Am. 611 St. Rep. 891; Ramsey v. People, 142 111. 380, 22 N. E. 364, 17 L. R. A. 853; Braceville Coal Co. v. People, 147 111. 66, 35 N. E. 621, 37 Am. St. Rep. 206; Frorer v. People, 141 111. 171, 31 N. E. 395, 22 L. R. A. 340; Willett v. People, 117 III. 294, 7 N. E. 631, 57 Am. Rep. 869; Commonwealth v. Perry, 155 Mass. 117, 28 N. E. 1126, 31 Am. St. Rep. 533; People v. Otis, 90 N. Y. 48; Ragio V. State, 86 Tenn. 272, 6 S. \\'. 401. Compare In re Housebill, 23 Colo. 504, 48 P. 512. 4. Charleston v. Rogers, 2 .\lcCord (S. Car.), 495, 13 Am. Dee. 751; Stokes v. New York, 14 Wend. (N. Y.), 87; Green v. Moffet, 22 Mo. 529; Yates v. Milwaukee, 12 Wis. 673; Eaton v. Kegan, 114 Mass. 433. 5. County Court v. Griswold, 58 Mo. 192; Hamilton v. County Court, 15 Mo. 3. §§ 540, 541 OPERATION OF CONTRACTS. Cll. 18 However, many statutes interfering with private rights are valid. Thus, a statute prohibiting citizens from assigning cer- tain claims against others, for the purpose of a suit in another State, is valid.® And so Congress may limit the amount of attorney fee in collecting a pension, and no right of contracting will be im- paired.'^ § 541. Reservation in charter. — Corporations possess only those powers or properties which the charters of their creation confer upon them, either expressly, or as incidental to their ex- istence. The rights legally vested in all corporations cannot be controlled or destroyed by any subsequent statute, unless power for that purpose be reserved to the legislature in the act of in- corporation.^ So after such reservation in the charter, a legis- lature may pass an act requiring the corporation to pay weekly the laborers engaged in its business the wages earned by them to within nine days of the date of such payment, unless pre- vented by inevitable casualty.^ By such restrictions imposed on a corporation, it is competent for the legislature, by passing a law, to amend the charter.^ So a legislature may prohibit a corporation from withholding employe's wages.* But this reserved power cannot be used to take away prop- erty already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to pos- sessions of contracts lawfully made.^ The alterations must be reasonable ; they must be made in good faith, and be consistent 6. Sweeney v. Hunter, 145 Pa. 3. Shaffer v. Mining Co., 55 Md. St. 363, 22 A. 653, 14 L. R. A. 594. 74. 7. Frisbie v. United States, 157 4. Leep v. Railroad Co., 58 Ark. U. S. 160, 15 S. Ct. 586, 407, 25 S. W. 75, 23 L. R. A. 1. Wales V. Stetson, 2 Mass. 143, 264, 41 Am. St. Rep. 109. 3 Am. Dec. 39; Greenwood v. 5. Sinking Fund Cases, 99 U. S. Freight Co., 105 U. S. 13; Sherman 700; Miller v. State, 15 Wall. (U. V. Smith, 1 Black. (U. S.), 587; S.), 498; Holyoke Co. v. Lyman, 15 State V. Person, 32 N. J. L. 134. Wall. (U. S.), 519; Tomlinson v. 2. State V. Manuf. Co., 18 R. I. Jessup, 15 Wall. (U. S.) 459; Rail- 16, 25 A. 246, 17 L. R. A. 856. road Co. v. Maine, 96 U. S. 510. 612 Cll. 18 IMPAIRMENT OF OBLIGATION. § 541 •with the object and scope of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of an amendment or alteration.^ The object of the reservation is to preserve to the State the control over corporate grants, and to permit the legislature at any time to exercise this reserved power when necessary and proper/ although the nature and character of the charter can- not be fundamentally changed.^ The reservation is, therefore, a condition upon which the charter is granted, and when it is accepted the right to exercise the power is as binding as if it was written in the body of the charter itself.^ Under such a law the legislature has the authority to make any alteration in a charter gTanted subject to it, that will not defeat or substantially impair the object of the grant, or any rights which have vested under it, and that the legislature may deem necessary to secure that object or other public or private rights.^" Thus, the legislature may make the stockliolders of an incorporated bank liable for the future debts of the corporation.^^ It may vary the measure, and thus enlarge the proportion of the profits which a mutual life insurance company is required by the terms of its charter to pay to charitable institutions.^ Railroad corporations may be compelled to make changes in the level, grade and surface of the roadbed, new structures at crossings of other railroads or of highways, or stations at par- ticular places, in a manner, and to be enforced by forms of pro- cess different from those provided for or contemplated by the original charter. ^^ 6. Shields v. Ohio, 95 U. S. 324. 12. Massachusetts Gen. Hospital 7. State V. Railroad Co., 44 Md. v. Asso. Co., 4 Gray (Mass.), 227. 131. 13. Roxbury v. Railroad Co., 6 8. Webster v. Sominary, 78 Md. Cush. (Mass.), 434; Fitchburgh 193, 28 A. 25. Railroad Co. v. Depot Co., 4 Allen. 9. Jackson v. Walsh, 75 Md. (Mass.), 198; Commonwealth v. 304, 23 A. 778. Railroad Co., 103 Mass. 254, 4 Am. 10. Commissioners v. Water Rep. 555; Albany and Northern R. Power Co., 104 Mass. 451. R. Co. v. Brownell, 24 N. Y. 345, 11. Sherman v. Smith, 1 Black overruling Miller v. Railroad Co., (U. S.), 587, 21 N. Y. 9. 21 Barb. (N. Y.), 513. See, also, G13 §§ 541, 542 OPERATION OF CONTEACTS. Ch. 18' And so a statute giving prior liens upon the property of manufacturing corporations for supplies is not invalid as im- pairing the charter right of such corporation to issue its bonds and secure them.^* ARTICLE III. Police Power of the State. Section 542. Regulating the Sale of Food. 543. Reasonableness of Food Regulations. 544. As to Occupations. 645. Insurance. 546. Destruction of Property. § 542. Regulating the sale of food. — The police power of the State may operate to regulate the sale of food products and their manufacture. Thus, adding a foreign and artificial in- gredient to a food product, even for the purpose of color merely, is in effect an adulteration, and the legislature has the power absolutely to prohibit it.^ This applies to coloring matter used in vinegar. This provision against coloring matter is for the prevention of fraud, as the coloring of vinegar can only be for the purpose of deception and to defraud the buyer.^ The tendency of such a device is to deceive the public, and such statute affords protection therefrom, and is clearly within the proper exercise of the police power of the State. Every one has a right to distinguish for himself what an article of food is, and have the means of judging for himself its quality and value.^ Spring Valley Water Works v. 1. People v. Girard, 145 N. Y. Schottler, 110 U. S. 347, 4 S. Ct. 105, 39 N. E. 823, 45 Am. St. Rep. 48. 595. 14. Virginia Development Co. v. 2. People v. Girard, 145 N. Y. Iron Co., 90 Va. 126, 17 S. E. 806, 105, 39 N. E. 823, 45 Am. St. Rep. 44 Am. St. Rep. 893. See, also, 595; Weller v. State, 53 Ohio St. Pennsylvania R. R. Co. v. Miller, 77. 40 N. E. 1001. 132 U. S. 75, 10 S. Ct. 34. 3. Palmer V. State, 39 Ohio St. 614 CE. 18 IMPAIRMENT OF OBLIGATION. §§ 542, 543 So the legislature may prohihit the manufacture and sale of oleomargarine, or the keeping of the product with intent to sell/ And so the legislature, in the exercise of the police power, for the purpose of preventing fraud, may prohibit the sale of pure milk mixed with part water, or below a certain standard.^ § 543. Reasonableness of food regulation. — The test of the reasonableness of a police regulation prohibiting the making and vending of a particular article of food is not alone whether it is in part unwholesome and injurious. The mere fact that experts may pronounce a manufactured article intended for food to be wholesome or harmless does not render it incompe- tent for the legislature to prohibit the manufacture and sale of the article.^ If there is a probable ground for believing that the only way to protect the public from being defrauded into the purchasing of the counterfeit food for tlie genuine, then the statute will be upheld though it prohibits the manufacture of the article, even though the article prohibited is in fact innocuous, and its production might be found beneficial to the public, if in buying it, it could be distinguished from the genuine product." 236, 48 Am. Rep. 429; Powell v. Waite, 11 Allen (Mass.), 264, 87 Commonwealth, 114 Pa. St. 265, 7 Am. Dec. 711; Commonwealth v. A. 913, 60 Am. Rep. 350; Powell v. Evans, 132 Mass. 11; State v. Pennsylvania, 127 U. S. 678, 8 S. Smith, 14 R. I. 100, 51 Am. Rep. Ct. 992, 1257; State v. Horgan, 55 344 and note; People v. Cipperly, Minn. 183, 56 N. W. 688; Butler v. 101 N. Y. 634, 4 N. E. 107; People Chambers, 36 Minn. 69, 30 N. VV. v. West, 106 N. Y. 293, 12 N. E. 308, 1 Am. St. Rep. 638 and note; 610, 60 Am. Rep. 452; Shivers v. State V. Thompson, 44 Minn. 271, Newton, 45 N. J. L. 409; Common- 46 N. W. 410; State v. Nelson, 50 wealth v. Farren, 9 Allen (Mass.), Minn. 1, 52 N. W. 220"; State v. 489. Addington, 77 Mo. 110; People v. 1. Powell v. Comomvealth, 114 Armstrong, 105 N. Y. 123, 11 N. E. Pa. St. 265, 7 A. 913, 60 Am. Rep. 277, 59 Am. Rep. 483. 350; Weller v. State, 53 Ohio St. 4. State v. Marshall, 64 N. H. 77, 40 N. E. 1001; People v. Girard, 549, 15 A. 210, 1 L. R. A. 51 and 145 N. Y. 105, 39 N. E. 823. 45 note. Am. St. Rep. 595. 5. State V. Campbell, 64 N. H. 2. State v. Addington, 77 Mo. 402. 13 A. 585; Commonwealth v. 110. 615 § 544 OPERATION OF CONTEACTS. Ch. 18 § 544. As to occupations. — Statutes have often been passed for the protection of minors and women. In Massachusetts a law which merely prohibits a woman's being employed in any manu- facturing establishment more than a certain number of hours per day or week, does not violate her right to labor as many hours per day or week as she may see fit, and is within the ])olice power. Such law merely provides that in an employ- ment, which the legislature deems to some extent dangerous to health, no person shall be engaged in labor more than a certain number of hours per day or week, and can be upheld as a police regulation. If the services to be performed are against the policy of the State, or if the employment is not suited to the person, then the State may regulate the employment.^ So the State may regulate the work of laborers in mines and smelters.^ In Illinois a woman is considered a person sui juris, hence her hours of labor cannot be controlled under the police power, because the court says that sex alone will not justify the exer- cise of the police power for the purpose of limiting her right to contract.^ It is generally held that an act of the legislature forbidding the employment of bar-maids is constitutional as an exercise of the police power.* And such statute does not abridge the privileges and immuni- ties of citizens, or deny the equal protection of the laws, within the meaning of the fourteenth amendment of the Federal con- stitution, but is a valid exercise of the police power of the State.^ 1. Commonwealth v. Hamilton 4. Bergman v. Cleveland, 39 Mfg. Co., 120 Mass. 383; State v. Ohio St. 651; State v. Reynolds, 14 Buchanan, 29 Wash. 602, 70 P. 52, Mont. 383, 36 P. 449 ; State v. Con- 59 L. E. A. 342, 92 Am. St. Rep. sidine, 16 Wash. 358, 47 P. 755; 930 ;Wenham V. State (Neb.), 91 N. Ex parte Hayes, 98 Cal. 555, 33 W. 421, 58 L. R. A. 825. P. 337, 20 L. R. A, 701; Foster v. 2. Holden v. Hardy, 169 U. S. Commissioners, 102 Cal. 483, 37 P. 366, 18 S. Ct. 383. 763, 41 Am. St. Rep. 194; overrul- 3. Ritchie v. People, 155 111. 98, ing In re Maguire, 57 Cal. 604, 40 40 N. E. 454, 29 L. R. A. 79, 46 Am. Rep. 125. Compare Gastenau Am. St. Rep. 315. This decision v. Commonwealth, 108 Ky. 473, declared a statute regulating the 56 S. W. 705, 94 Am. St. Rep. 386. hours that a woman should work in 5. In re Considine, 83 Fed. Rep. a "sweat shop," void. 157. 616 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 545, 546 § 545. Insurance. — The business of insurance against loss by fire is, by reason of its magnitude, its importance to property owners, and the nature of the business, a proper subject for the exercise of the police power of the State. Therefore, a State which prohibits any person, partnership or association, from issuing any policy or making a contract of indemnity against loss by fire without authority expressly conferred by a charter of incorporation, is a valid exercise of the police power.^ Be- cause a State has a right to impose conditions, not in conflict with the constitution of the United States, on the doing of in- surance business within its territorial bounds by insurance com- panies chartered by another State or to exclude them altogether.^ In life insurance, if the insured commits a crime and is le- gally executed, the policy lapses. The rule is general that losses resulting from the criminal act of the insured will not be covered by policies of insurance upon life or property. For it is against public policy to offer a reward in the nature of insur- ance for the commission of crime. And if the insured be con- victed and executed, though he be innocent of the crime, the policy cannot be collected. It is the policy of every State to uphold the digTiity and integrity of its courts of justice, and public policy forbids sustaining any policy of insurance which depends upon proving a miscarriage of justice. The policy of the law often permits, and even requires, for error, a new trial of a convicted defendant, but never after his execution. So, if he be legally executed, but is not guilty in fact, the policy on his life becomes void.^ And any wager of this kind to show that the court erred in the judgment of execution, is void and against public policy.* § 546. Destruction of property. — A prohibition simply up- on the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the 1. Commonwealth v. Vrooman, 3. Burt v. Union Cent. L. Ins. 164 Pa. St. 30G, 30 A. 217, 25 L. R. Co., 187 U. S. 362, 23 S. Ct. 139. A. 250, 44 Am. St. Rep. 603. 4. Evans v. Jones, 5 Mees. & W. 2. Doyle v. Ins. Co., 94 U. S. 535. 77. G17 §§ 546, 547 OPERATION OF CONTEACTS. Ch. 18 community, cannot be deemed a taking or an appropriation of property for the public health. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is a valid use of the police power.^ Thus, a State has the constitutional power to declare that any place kept and maintained for the illegal manufacture and sale of intoxicating liquors shall be deemed a common nuisance, and be abated, although that when the owners purchased the prop- erty the laws of the State did not forbid the manufacture of intoxicating liquors.^ The supervision of the public health and the public morals is a governmental power, continuing in its nature to be dealt with as the special exigencies of the moment may require ; for this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.' ARTICLE IV. Police Power and Interstate Commerce. Section 547. Police Power Controlled by Federal Constitution. 548. Interstate Commerce — Police Power. 549. State Statutes Interfering with Interstate Commerce. 550. Surrender of the Police Power of the State. 551. Imposing a Tax Upon Selling Goods. 552. Tax Upon Interstate Commerce. 553. When is the Imported Commodity Incorporated with the General Mass of Property. 554. Statute Incorporating Imported Goods. § 547. Police power controlled by federal constitution. — The State, Avhen providing, by legislation, for the protection of the public health, the public morals, or the public safely, 1. Mugler V. Kansas, 123 U. S. 3. Stone v. Mississippi, 101 U. S. 623, 8 S. Ct. 273. 814. 2. Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273. 618 CTl. 18 IMPAIRMENT OF OBLIGATION. § 547 is subject to the paramount antliority of the constitution of the United States, and may not violate ri2;hts secured or guaran- teed by that instrument, or interfere with the execution of the powers confided to the general government.^ And so no State cannot, by any contract, limit the exercise of the police power to the prejudice of the public health and the public morals.^ If a State should grant a charter to a private corporation to conduct a lottery, and for which the corporation paid to the State a valuable consideration in money, the legislature may revoke the charter, because no State can bargain away the public health or the public morals.^ The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. The same rule applies to such contracts as to all other contracts and property, whether o^vned by national persons or by corporations. All property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.* And while a State cannot impair the exclusive right of a patentee, or of his assignee, in the discovery described in the letter-patent, the tangible property, the fruit of the discovery, is not beyond control in the exercise of a State's police power.^ Congress has uniformly recognized the necessity, growing out of the fundamental conditions of society, of upholding State police regulations which are enacted in good faith, and has ap- 1. Henderson v. New York, 92 cent City Co., Ill U. S. 740, 4 S. U. S. 259; Railroad Co. v. Husen, Ct. 652. 95 U. S. 465; New Orleans Gas Co. 3. Stone v. Mississippi, 101 U. V. Light Co., 115 U. S. 650, 6 S. Ct. S. 814; Douglas v. Kentucky, 168 252; Walling v. Michigan. 116 U. U. S. 488, 18 S. Ct. 199. S. 446, 6 S. Ct. 454; Yick Wo v. 4. Beer Co. v. Massachusetts, 97 Hopkins, 118 U. S. 356, 6 S. Ct. U. S. 25; Commonwealth v. Alger, 1064; Morgan's Steamship Co. v. 7 Cush. (Mass.) 53. Board, 118 U. S. 455, 6 S. Ct. 1114. 5. Patterson v. Kentucky, 97 U. 2. Butchers' Union Co. v. Cres- S. 501. 619 §§ 547-549 OPERATION OF CONTRA.CTS. Ch. 18 propriate and direct connection with the protection to life, health, and property which each State owes to its citizens.^ So the enforcement of an ordinance may operate to destroy the hiisiness of a company, and seriously to impair the value of its property, yet the police power will uphold it if appropriate to the subject.^ Therefore, a party in contracting must take into consideration his rights under the police power. § 548. Interstate commerce — Police power. — Interstate commerce consists in the transportation, purchase, sale and ex- change of commodities among the States, and is national in its character and must be governed by a uniform system, which does not come under the police power of any State. So, where laws are enacted in the exercise of the police power of the State, they are not valid if they inhibit the receipt of an imported com- modity, or its disposition before it has ceased to become an article of trade between the States, or another country and thisi, because they amount to a regulation of interstate commerce.^ Congress cannot transfer legislative powers to a State nor sanction a State law in violation of the Federal constitution; and if it adopts a State law as its own, it must be one compe- tent for it to enact itself, and not a law passed in the exercise of the police power.^ Congress can neither delegate its own powers nor enlarge those of the State. § 549. State statutes interfering with interstate commerce. — So where a statute interferes with interstate commerce, though enacted as a police measure, it is unconstitutional. Thus, where a State prohibits a certain class of cattle to be 6. Patterson v, Kentucky, 97 U. 1. Bowman v. Railroad Co., 125 U. S. 501; United States v. Dewitt, 9 S. 465, 8 S. Ct. 689, 1062; Leisy v. Wall. (U. S.) 41; License Tax Hardin, 135 U. S. 100, 10 S Ct. Cases, 5 Wall. (U. S.), 462; Per- 681. vear v. Commonwealth, 5 Wall. (U. 2. Cooley v. Wardens, 12 How. S.),475. (U. S.), 299; Gunn v. Barry, 15 7. Fertilizing Co. v. Hyde Park, Wall. (U. S.), 610; United States 97 U. S. 659. V. Dewitt, 9 Wall. (U. S.), 41. 020 Cll. 18 IMPAIKMENT OF OBLIGATION. § 549 shipped tlircmgli its territory, and the object of the statute is not a quarantine or inspection law, it is invalid, as its enforcement would obstruct interstate commerce and discriminate between the property of citizens of one State and that of citizens of other States.^ And so where a statute, by its necessary opera- tion, excludes from the market of a State all fresh beef, veal, mutton, lamb, or pork, in whatever form, and although entirely sound, healthy, and fit for human food taken from animals slaughtered in other States, it is unconstitutional ; such statute discriminates against the products of other States and, there- fore, interferes with interstate commerce.^ A State may establish regulations for the protection of its people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the con- stitution upon Cong-ress, or infringe rights granted or secured by that instrument.^ Any local regulation which, in terms or by its necessary operation, denies equality to all in the markets of the State, is, when applied to the people and products or in- dustries of other States, a direct burden upon commerce among the States, and, therefore, void. Thus, a statute relating to the inspection of flour brought into a State, is unconstitutional, if it requires inspection of flour from other States, where no such inspection is required of flour manufactured at home.* And so where a statute imposes a tax upon persons not residing or hav- ing their principal places of business within the State, but en- gaged there in the business of selling or soliciting the sale of intoxicating liquors to be shipped into the State from places without it, but not imposing a similar tax upon persons selling or soliciting the sale of intoxicating liquors manufactured in that State, it is invalid.^ But a State statute is not to be deemed a regulation of com- 1. Railroad Co. v. Plusen, 95 U. 4. Voight v. Wright, 141 U. S. S. 465. 62. 11 S. Ct. 855. 2. Minnesota v. Barber, 136 5. Walling v. Michigan, 116 U. U. S. 313, 10 S. Ct. 862. S. 446, 6 S. Ct. 454. 3. Brimmer v. Rebman, 138 U. S. 78, 11 S. Ct. 213. 621 §§ 549, 550 OPEKATION OF CONTEACTS, Ch. 18 merce among the States simply because it may indirectly or incidentally affect such commerce.^ So a State statute impos- ing a penalty for the violation of a duty of a telegraph company, though it does interstate business, which duty the company owes by the general law of the land, is no regulation of or an obstruc- tion to interstate commerce.' The citizens of one State have the right to enter the markets of every other State to sell their products, or to buy whatever they need, and all interference with the freedom with interstate commerce by State legislation is void. Under the constitution of the United States, business transactions cannot be delimited by State boundaries.^ Thus, where a statute provides that a city and contractor shall not purchase certain lines of dressed stone to be used in the city improvements, outside of the State, it is void.^ And a contract made under such statute has a ten- dency to restrict interstate commerce ; the statute and contract must fall together.^" § 550. Surrender of the police power of the state. — The re- served police power of the States cannot control the prohibitions of the Federal constitution nor the powers of the government it created,^ but the grant to Congress of authority to regulate foreign and interstate commerce does not involve a surrender by the States of their police power. Thus, a statute to prevent deception in the manufacture and sale of imitation butter, in its 6. Hennington v. Georgia, 163 U. 8. People v. Hawkins, 157 N. Y. S. 299, 16 S. Ct. 1086; New York, 1, 51 N. E. 257, 42 L. R. A. 490, 68 etc. R. R. Co. V. New York, 165 U. Am. St. Rep. 736; People v. Buffalo S. 628, 17 S. Ct. 418; Chicago, etc. Fish Co., 164 N. Y. 193, 58 N. E. R. R. Co. V. Solan, 169 U. S. 133, 34. 18 S. Ct. 289; Richmond, etc. R. R. 9. People v. Coler, 166 N. Y. 144, Co. V. Tobacco Co., 169 U. S. 311, 59 N. E. 776. See, also, Allgeyer v. 18 S. Ct 335; Missouri, etc. R. R. Louisiana, 165 U. S. 578, 17 S. Ct. Co. V. Haber, 169 U. S. 613, 18 S. 427. Ct. 488. 10. Addyston Pipe and Steel Co. 7. Western Union Tel. Co. v. v. United States, 175 U. S. 211, 20 James, 162 U. S. 650, 16 S. Ct. S. Ct. 96. 934. See, also, Missouri, etc. R. R. 1. New Orleans Gas Co. v. Light Co. V. Haber, 169 U. S. 513, 18 S. Co., 115 U. S. 650, 6 S. Ct. 252. Ct. 488. 622 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 550, 551 application to the sales of oleomargarine artificially colored so as to cause it to look like yellow bntter and brought into the State, is not in conflict with Federal constitution.^ So a State statute may prescribe regulations, applicable to carriers engaged in interstate and foreign commerce, to insure the safety of persons carried by them as well as the safety of persons and things liable to be affected by their acts while they are within the territorial jurisdiction of the State.^ So a stat- ute making it a public offense for any one to practice medicine in the State without complying with certain prescribed condi- tions, is valid.* A State is not powerless to prevent the sale of articles of food manufactured in or brought from another State, and sub- jects of traffic or commerce, if their sale may cheat the people into purchasing something they do not intend to buy, and which is wholly different from what its condition and appearance impart.^ The judiciary of the United States will not strike down a legislative enactment of a State, especially if it has direct con- \jiection with the social order, the health and the morals of a people, unless such legislation plainly and palpably violates some rights granted or secured by the national constitution or en- croachment upon the authority delegated to the United States for the attainment of objects of national concern.^ § 551. Imposing a tax upon selling goods. — ^Statutes impos- ing a penalty for peddling without a license, all goods of par- ticular kinds, and not discriminating against goods brought from other States, or from foreign countries, are valid and not unconstitutional.^ 2. Plumley v. Massachusetts, 155 5. Plumley v. Massachusetts, 155 U. S. 461, 15 S. Ct. 154. See, also, U. S. 461, 15 S. Ct. 154; Gibbons v. Powell V. Pennsylvania, 127 U. S. Ogden, 9 Wheat. (U. S.), 1, 203. 678, 8 S. Ct. 992, 1257. 6. Gibbons v. Ogden, 9 Wheat. 3. Smith V. Alabama, 124 U. S. (U. S.) 1, 203; Plumley v. Massa- 465, 8 S. Ct. 564. chusetts, 155 U. S. 461, 15 S. Ct. 4. Dent v. West Virginia, 129 U. 154. S. 114, 9 S. Ct. 231. 1. Commonwealth V. Harmel, 166 623 §§ 551, 652 OPERATION OF CONTEACTS. Ch. 18 If a discrimination is made against imported goods, the stat- ute is invalid.^ And the rights conferred by the patent laws to inventors to sell their inventions does not take the tangible property from the operation of the tax and license laws of a State ; and one reason why a tax imposed by a State upon per- sons selling, without license, patented articles not owned by them, is invalid, as applied to patented articles manufactured in another State, is where the statute makes a clear discrimina- tion in favor of home manufacturers and against the manufac- turers of other States.^ But where goods have arrived within the State and have be- come a part of all property, a tax laid alike on all property within a city, is valid and not a law regulating interstate commerce.* § 552. Tax upon interstate commerce. — The States cannot tax or regulate interstate commerce. So a lincense applied to persons soliciting orders for goods on behalf of a firm in another State, is unconstitutional as inconsistent with the power of Con- gress to regulate commerce among the States.^ But as soon as the goods are in the State and become part of the general mass Pa. St. 89, 30 A. 1036, 27 L. R. A. 493; People v. Russell, 49 Mich. 388; Cowles v. Brittain, 2 Hawks, 617, 14 N. 568, 43 Am. Rep. 478; (N. Car.) 204; Wynne v. Wright, 1 Howe Machine Co. v. Gage, 100 U. Dev. and Bat. (N. Car.), 19; Tracy S. 676. V. State, 3 Mo. 3 ; Morrill v. State, 2. Cook v. Pennsylvania, 97 U. S. 38 Wis. 428, 20 Am. Rep. 12 ; Howe 566 ; Woodruff v. Parham, 8 Wall. Machine Co. v. Gage, 9 Baxt. (U. S.), 123; Hinson v. Lott, 8 (Tenn.), 518; Graffty v. Rushville, Wall. (U. S.), 148; Welton v. Mis- 107 Ind. 502, 8 N. E. 609, 57 Am. souri, 91 U. S. 275. Rep. 128 and note; State v. Rich- 3. Webber v. Virginia, 103 U. S. ards, 32 W. Va. 348, 9 S. E. 245, 344. 3 L. R. A. 705 and note; Common- 4. Brown v. Houston, 114 U. S. wealth V. Gardner, 133 Pa. St. 284, 622, 632, 5 S. Ct. 1091. 19 A. 550, 37 L. R. A. 666 and 1. Robbins v. Shelly Taxing note, 19 Am. St. Rep. 645; Emert Dist., 120 U. S. 489, 7 S. Ct. 592; V. Missouri, 156 U. S. 296, 15 S. Asher v. Texas, 128 U. S. 129, 9 S. Ct. 367; Attorney General v. Ct. 1 ; Brennan v. Titusville, 153 U. Tongue, 12 Price, 51, 60; Common- S. 289, 14 S. Ct. 829. wealth V. Ober, 12 Cush. (Mass.) 624 Ch. 18 IMPAIRMENT OF OBLIGATION. §§ 552, 553 of property, they will become liable to be taxed in the same manner as other property of similar character.^ Where goods are sent from one State to another for sale, or in consequence of a sale, they become part of its general prop- erty and amenable to its laws ; provided that no discrimination be made against them as goods from another State, and that they be not taxed by reason of being brought from another State, but only taxed in the usual way as other goods are.^ But this exemption of interstate and foreign commerce from State regu- lation does not prevent the State from taxing the property of those engaged in such commerce located within the State, as the property of other citizens is taxed, nor from regulating matters of local concern which may incidentally affect com- merce.* But a statute prohibiting the sale of intoxicating liquors without a license is, as applied to a sale of liquors in the orig- inal packages and by the person who had brought them into the State from another State, inconsistent with the powers of Con- gress to regulate commerce among the States, and unconsti- tutional.^ § 553- When is the imported commodity incorporated with the general mass of property. — The point of time, when the prohibition ceases and the power of the State to tax commences, is not the instant when the article enters the country, but when the importer has so acted upon it that it has become in- corporated and mixed up with the mas^ of property in the coun- try, which happens when the original package is no longer such in his hands ; that the distinction is obvious between a tax 2. Brown v. Houston, 114 U. S. S. 1, 12 S. Ct. 810; Postal Tele- 622, 5 S. Ct. 1091. graph Co. v. Charleston, 153 U. S. 3. Howe Machine Co. v. Gage, 692, 14 S. Ct. 1094; Postal Tele- 100 U. S. 676. graph Co. v. Adams, 155 U. S. 688, 4. Leloup V. Mobile, 127 U. S. 15 S. Ct. 268, 360. 640, 8 S. Ct. 1380. See, also. Pull- 5. Leisy v. Hardin, 135 U. S. man Car. Co. v. Pennsylvania. 141 100, 10 S. Ct. 681; Lyng v. Michi- U. S. 18, 11 S. Ct. 876; Fieklin v. gan, 135 U. S. 161, 10 S. Ct. 725. Shelly Taxing Dist., 145 U. 625 §§ 553, 554 OPERATION OF CONTBACTS. Ch. 18 which intercepts the import as an import on its way to become incorporated with the general mass of property, and a tax which finds the article already incorporated with that mass by the act of the importer.^ § 554. Statute incorporating imported goods. — Congress has enacted that all imported liquors or liquids shall, upon arrival in a State, fall within the category of domestic articles of a similar nature ; that they shall be subject to the operation and effect of the laws of such State enacted in the exercise of the police power, to the same extent and in the same manner as though such liquids or liquors had been produced in such State, and shall not be exempt therefrom by reason of being intro- duced therein in original packages or otherwise.^ This statute is valid and is a constitutional exercise of the legislative power conferred upon Congress. After this act took effect such liquors or liquids, introduced into a State, whether in original packages or otherwise, became subject to the operation of such of its then existing laws as has been properly enated in the exercise of its police power.^ 5. Brown v. Maryland, 12 Wheat. 2. In re Rahrer, 140 U. S. 545. (U. S.), 419. 11 S. Ct. 865. 1. 26 U. S. Stat. 313. 626 oil. 18 IMPAIRMENT OF OBLIGATION. § 555 ARTICLE V. Impairment of Remedy. Section 555. Laws Enter into the Contract. 556. Altering the Remedy. 557. Retrospective Acts. 558. Exemptions. 559. Limitations. 560. Abolishing Remedy. 561. Redemption from Sales of Real Estate. 562. Specific Liens. 563. Changing Rate of Interest on Judgment. 564. Reducing Rate of Interest in Redemption. 565. Change of Procedure. 566. Extending the Period of Redemption. 567. Resale When Bought by Mortgagor for Less than the Debt. § 555- Laws enter into the contract. — The laws subsisting in a State at the time a contract is made, including those which affect its validity, construction, discharge, or enforcement, en- ter into and form a part of the contract, as if thej were ex- pressly referred to or incorporated in its terms.^ And so the laws which prescribe the mode of enforcement of a contract, which are in existence when it is made, are so far a part of it that no changes in these laws which seriously interfere with that enforcement are valid, because they impair its obligation within the meaning of the Federal constitution.^ The meaning of this rule is that the laws exist- 1. Van Hoffman v. Quincy, 4 Williams, 84 N. Car. 281; Banks Wall. (U. S.), 550; W^alker v. v. Dewitt, 42 Ohio St. 263; Elliott Whitehead, 16 Wall. (U. S.), 314; v. Railway Co., 10 H. L. Cas. 333. Edwards v. Kearzey, 96 U. S. 595; 2. Barnitz v. Beverly, 163 U. S. Seibert v. I^wis, 122 U. S. 284, 7 118, 16 S. Ct. 1042; Watkins v. S. Ct. 1190; Louisiana v. New Or- Glenn, 55 Kan. 417, 40 P. 316; leans, 102 U. S. 206; Robards v. Greenwood v. Butler, 52 Kan. 424, Brown, 40 Ark. 423; Webster v. b-t P. 967, 22 L. R. A. 465; Bron- Rees, 23 Iowa, 269 ; Rogers V. Allen, son v. Kinzie, 1 How. (U. 47 N. H. 529; Roberts v. Cocke, 28 S.) 316; Ogden v. Sanders, 12 Gratt. (Va.) 207; Van Schoonhoven Wheat. (U. S.) 259; McCracken v. V. Curley, 86 N. Y. 187; Brine v. Hay ward, 2 How. (U. S.) 612. Ins. Co., 96 U. S. 627; O'Kelly v. 627 §§ 555-55Y OPERATION OF CONTEACTS. Ch. 18 ing at the time a contract is made, which enter into and form a part of it, are only those which, in their direct or necessary legal operation, control or affect the obligations of such con- tract.^ § 556. Altering the remedy. — Whatever belongs merely to the remedy may be altered according to the will of the State, provided the change does not impair the obligation of the con- tract. If it makes a material alteration, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the constitu- tion.* So an act requiring the holder of certain coupons first to pay his taxes in cash, and file his coupon in the court, and afterwards, in a circuitous \vay, receive back his money, is an act affecting the remedy only, and does not impair the obliga- tion of contract, although the funding act under which the coupons were issued required the State to receive them for all taxes and demands due her.^ The laws in reference to which the parties must be assumed to have contracted are those which in their direct or necessary legal operation control or affect the construction and operation and obligations of the contract, and not those which affect merely the remedy." § 557- Retrospective acts. — A statute may not be void be- cause retrospective. Thus, a statute requiring the holder of a 3. Conn. Muu L. etc. Insurance Wall. (U. S.), 575; Mobile v. Wat- Co. V. C.ushman, 108 U. S. 51, 65, 2 son, 116 U. S. 305, 6 S. Ct. 398. S. Ct. 949. See, also, Gantly v. 4. Bronson v. Kinzie, 1 How. (U. Ewing, 3 How. (U. S.) 716; Ex S.) 311; Tennessee v. Sneed, 96 U. parte Christy, 3 How. (U. S.) 328; S. 74. Clark V. Reyburn, 8 Wall. (U. S.), 5. Antoni v. Greenbow, 107 U. S. 322; Walker v. Wliitehead, 16 Wall. 769, 2 S. Ct. 91. (U. S.) 314; Howard v. Bugbee, 24 6. Connecticut Mut. L. etc. In- How. (U. S.) 461; Gunn v. surance Co. v. Cushman, 108 U. S. Barry, 15 Wall. (U. S.), 601; Mem- 51, 2 S. Ct. 236; Morly v. Railroad phis V. United States, 97 U. S. 293; Co., 146 U. S. 162, 13 S. Ct. 54; Kring v. Missouri, 107 U. S. 233, Fourth Nat. Bank v. Franklyn, 120 2 S. Ct. 443; Britz v. Muscatine, 8 U. S. 747, 7 S. Ct. 757; Curtis v. Whitney, 13 Wall. (U. S.) 68. 628 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 557, 558 tax sale certificate, made before its passage, to give the occupant of the land tlirce niontlis' notice, together with a copy of the certificate and the name of the holder, does not impair the obli- gation of the contract evidenced by the certificate.' It is one of the contingencies to which parties look now in making contracts that they may be affected in many ways by State and national legislation. For such legislation, demanded by the public good, however it may rctroact on contracts previ- ously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the Federal constitution, so long as the obligation of performance remains in full force.^ Hence, a law relieving a debtor from imprisonment for debt does not impair the obligation of contract, because it is only a modification of the remedy given by the legislature for the en- forcement of the contract, and not a part of the obligation.® And a retroactive effect is not given to a statute making com- binations in restraint of trade illegal, by applying the statute to a continuation, after its passage, of a pre-existing contract." 1. § 558. Exemptions. — Exemption laws operate on the remedy for a breach of contracts, and the legislature has the power to change them according to its own views of policy so as to affect the remedy upon existing contracts, but not to the extent of rendering it nugatory and impracticable.''' It is constitutionally competent for the legislature to determine the amount of prop- erty that shall be exempt from seizure or sale for the payment of any debt or liability, and to increase and diminish such amount 7. Curtis V. Whitney, 13 Wall. Fisher v. Lackey, 6 Black (Ind.), (U. S.) 68. See, also, United 373; Penniman's Case, 103 U. S. States V. Freight Asso., IGG U. S. 714; Brunson v. Newbury, 2 Doug. 290, 17 S. Ct. 540. (Mich.) 38. 8. Curtis V. Whitney, 13 Wall. 10. United States v. Freight (U. S.) 68. Asso., 166 U. S. 290, 17 S. Ct. 540. 9. Sturges v. Crowninshield, 4 1. Stephenson v. Osborne, 41 Wheat. (U. S.) 122; Mason v. Miss. 119, 90 Am. Dec. 358 and Haile, 12 Wheat. (U.S.) 370; Ed- note; Morse v. Goold, 11 N. Y. 281, wards v. Kearzey, 96 U. S. 595; 62 Am. Dec. 103. 629 §§ 558-560 OPERATION OF CONTRACTS. Ch. 18 from time to time, bnt it cannot in its exemption laws discrim- inate between different classes of creditors and kinds of debts.^ If the law is reasonable, it applies to past as well as to future contracts.^ It has been held that a homestead exemption given bj the constitution can be maintained by the debtor as against a judgment rendered before the adoption of the constitution, where no such exemption existed,^ provided it is reasonable. But if such exemption had been excessive and unreasonable as applies to obligations existing prior to the adoption of the con- stitution, it will be declared unconstitutional and void.^ § 559. Limitations. — The law of limitations is not consid- ered a part of the contract ; hence, the legislature may enact a law limiting the time within which actions may be brought to enforce demands where there was before no period of limita- tion, or may shorten the existing time of limitation ; and such a law may operate upon existing contracts, as it does not come under the constitutional prohibition.^ § 560. Abolishing remedy. — Where the act merely modifies the remedy or gives another in its place, for enforcing contracts, it does not conflict with the Federal constitution. So the right to distrain for suit may be abolished, and such law applies to leases in existence when the act was passed.^ And so a law subsequently enacted may deprive a creditor, under certain circumstances, of his remedy by attachment, 2. Coleman v. Ballandi, 22 Minn. 5. Edwards v. Kearzey, 9G U. S. 144; Tuttle v. Stout, 7 Minn. 465, 595. 82 Am. Dec. 108 and note; Cogel v. 6. Sturges v. Crowninshield, 4 Mickow, 11 Minn. 475. Wheat. (U. S.) 122; Hawkins v. 3. Taylor v. Stockwell, 66 Ind. Barney, 5 Pet. (U. S.) 457; Smith 505; Rockwell v. Hubbell, 2 Doug. v. Morrison, 22 Pick. (Mass.) 430; (Mich.) 197, 45 Am. Dec. 246 and Call v Hagger, 8 Mass. 423; Smith note; Sneider v. Heidelberger, 45 v. Packard, 12 Wis. 371; Kenyon v. Ala. 126; Hardeman v. Donovan, 39 Stewart, 44 Pa. St. 179. Ga. 425. 1. Stocking v. Hunt, 3 Denio (N. 4. Cusic V. Douglas, 3 Kan. 123, Y.), 274; Conkey v. Hart, 14 N. Y. 87 Am. Dec. 458 and note. This 22. case is undoubtedly carried too far. 630 CTl. 18 IMPAIRMENT OF OBLIGATION. § 560 which existed in full force when the contract was made.^ A creditor of an assigning debtor acquires no vested right in the assets by means of the assignment. The assignee is the agent of the law, and all the proceedings in the future settlements of the assets are subject to the law of the legislature.^ An act providing that in foreclosure proceedings thereafter commenced no personal judgment should be taken is valid as to past contracts, the remedy by action at law for the deficiency being still left.* So a law is valid which provides that no civil process should issue or be enforced against any person in the military service of the State or the United States; and it ap- plies to a writ of scire facias upon a mortgage, unless expressly prohibited by the act of the contracting parties, and is not un- constitutional as impairing the obligation of contracts."* Legal remedies are in the fullest sense under the rightful control of the legislature of the several States, notwithstanding the provision in the constitution of the United States prohibit- ing the impairment of the obligation of contracts; and it is no valid objection to legislation on that subject, that the substi- tuted remedy is less beneficial to the creditor than the one which existed at the time the debt was contracted.^ The legislature may change and modify remedies, forms of proceedings, and the tribunal itself, but it shall not directly or indirectly destroy or abolish all remedy whatever, by which the contracts are to be enforced.'' An adequate and reasonable mode of enforcing the right must remain, or be provided, which leaves the value of the contract 2. Bigelow V. Pritchard, 21 Pick. 6. In re Mechanics and Farmers' (Mass.) 169. Bank, 31 Conn. 63; Wolff v. New 3. In re Mechanics and Farmers' Orleans, 103 U. S. 358; Penrose v. Bank, 31 Conn. 63. Canal Co., 56 Pa. St. 46, 93 Am. 4. Newark Sav. Inst. v. Forman, Dec. 778; Simpson v. Bank, 56 N. 33 N. J. Eq. 436. H. 466, 22 Am. Rep. 491. 5. Coxe V. Martin, 44 Pa. St. 7. Richardson v. Cook, 37 Vt. 322. See, also, Evans v. Montgom- 599, 88 Am. Dec. 622; Baldwin v. ery, 4 Watts & S. (Pa.) 218; Van Newark, 38 N. J. L. 158; McMillan Rensselaer v. Hayes, 19 N. Y. 68, 75 v. Sprague, 4 How. (Miss.) 647, 35 Am. Dec. 278 and note: Wason v. Am. Dec. 412. Railroad Co., 47 N. Y. 157. 631 §§ 560, 561 OPEKATION OF CONTEACTS. Ch. 18 without substantial depreciation or impairment.^ Therefore the legislature may modify or change existing remedies or pre- scribe new modes of procedure, without impairing the obliga- tion of contracts, provided a substantial or efficacious remedy remains or is given by means of which a party can enforce his rights under the contract.^ § 561. Redemption from sales of real estate. — A law made after the date of a contract, which gives a more speedy and effi- cacious remedy to the creditor, is not unconstitutional. It is only where, by a change of the remedy, the obligation of the contract is impaired that the constitution is violated.^ The collection laws existing when a contract is made are no part of the contract, and give the debtor no vested right.^ But a sale of real estate under a judgment rendered before a stat- ute is enacted, should conform to the law in force at the time the judgment was rendered.^ The right to acquire a lien upon real estate by judgment, and the right to sell real estate upon execution, are derived from the statute. These are rights altogether outside of the creditor's contract. A creditor, even though he may have re- duced his claim to judgment, has no contractual interest or estate in his debtor's land.^ 8. Loekett v. Usry, 28 Ga. 345 j ginia, 172 U. S. 102, 19 S. Ct. 134; Read v. Bank, 23 Me. 318; White v. Oskosh Water Works Co. v. Oskosh, Hart, 13 Wall. (U. S.) 646; Davis 187 U. S. 437, 23 S. Ct. 234; Vance V. Rupe, 114 Ind. 588, 17 N. E. 163; v. Vance, 108 U. S. 514, 2 S. Ct. Lessley v. Phipps, 49 Miss. 790; 854. Planters' Bank v. Sharp, 6 How. 1. Blair v. Williams, 4 Litt. (U. S.) 301; Taylor v. Stockwell, (Ky.) 34; Lapsley v. Brashear, 4 66 Ind. 505; Stocking v. Hunt, 3 Litt. (Ky.) 47; Sturges v. Crownin- Denio (N. Y.), 274; Tennessee v. shield, 4 Wheat. (U. S.) 122. Com- Sneed, 96 U. S. 69; Newark Sav. pare Cargill v. Power, 1 Mich. 370. Inst. V. Forman, 33 N. J. Eq. 436; 2. Grubbs v. Harris, 1 Bibb Morse v. Gould, 11 N. Y. 281, 62 (Ky.), 567; Reardon v. Searcy, 2 Am. Dec. 103; Edwards v. Kearzey, Bibb (Ky.), 202. 96 U. S. 595. 3. Holland v. Dickerson, 41 Iowa, 9. Green v. Biddle, 8 Wheat. (U. 367. S.) 1; Bronson v. Kinzie, 1 How. 4. Gimbel v. Stalte, 59 Ind. 446; (U. S.) 317; McCullough v. Vir- Iverson v. Shorter, 9 Ala. 713; Ber- 632 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 561, 562 The rights and remedies given by statute are not secured by contract, and the creditor stands wholly upon the law which gives him the remedy for the collection of his debt. Having contracts for no specific lien or remedy, the creditor agrees, in effect, that he will take the remedy as he may find it, subject only to the condition that it shall be reasonably adequate to make his contract effectual by legal compulsion, and such as other creditors in like circumstances are entitled to by the laws of the land.^ § 562. Specific liens. — Where the creditor has acquired a specific lien upon or interest in property by contract, his rights in the specific property are then contractual, and it is not com- petent for the legislature to interpose in behalf of the debtor, and, by enlarging his rights, or by modifying the rights of the creditor, to impair or depreciate the value of an antecedent debt or security. So the vendible value of the estate or interest of a mortgagee, or other holder of a specific lien upon real estate, cannot be materially affected or appreciably diminished by an act of the legislature which rendered consummate the prior in- choate right of a married woman in the real estate of her hus- band.^ Likewise a redemption law, the effect of which is to depre- ciate the value of an antecedent security, existing by way of mortgage, or which changes the character of the estate which passes by sale under a power contained in the mortgage, cannot be upheld.^ And the security or danger clause in a chattel mortgage is a contract right and cannot be nullified by subse- quent legislation.^ thold V. Fox, 13 Minn. 501, 97 Am. 1. PLelphenstine v. Heredith, 84 Dec. 243; Thorn v. San Francisco, Ind. 1; Buser v. Shepard, 107 Ind. 4 Cal. 127; Watson v. Railroad Co., 417, 8 N. E. 280. 47 N. Y. 157; Moore v. Martin, 38 2. Codington v. Bispham, 36 N. Cal. 428; Butler v. Palmer, 1 Hill J. Eq. 574; Hillebert v. Porter, 28 (N. Y.), 324; Davis v. Rupe, 114 Minn. 496, 11 N. 84. Ind. 588, 17 N. E. 163. 3. Boice v. Boice, 27 Minn. 371, 5. Davis V. Rupe, 114 Ind. 588, 7 N. 687. 17 X. E. 163. 633 §§ 562,563 OPERATION OF CONTKACTS. Ch. 18 So the law in force at the time a mortgage is executed gives the mortgagee a specific lien upon the mortgaged premises. The remedy to redeem provided when the mortgage is executed enters into the convention of the parties, in so far that any change by the legislature which affects it substantially to the injury of the mortgage, is a law impairing the obligation of contracts within the meaning of the constitution of the United States.* § 563. Changing rate of interest on judgment. — One line of decisions holds that the constitutional prohibition does not for- bid a State from legislating, within its discretion, to reduce the rate of interest upon judgment previously obtained in its courts ; as the judgment creditor has no contract whatever in that respect with the judgment debtor, and as the former's right to receive, and the latter's obligation to pay exist only as to such amount of interest as the State chooses to prescribe as a penalty or liquidated damages for the nonpayment of the judgment.^ But other decisions hold the contrary, because the effect of a judgment is to fix the rights of the parties thereto by the solemn adjudication of a court having jurisdiction, and such rights cannot be affected by subsequent legislation. Changing the rate of interest does not affect existing contracts or debts due prior to such enactment, whether they are evidenced by statute, by judgment, or by agreement of the parties. The parties' rights are fixed by the judgment of the court and the judgment carries with it its incidents, equally determined and all relating to the date of its entry ; and, hence, the interest on 4. Pingrey on Mortg. 2138 Baldwin v. Flagg, 43 N. J. L. 495 Robards v. Brown, 40 Ark. 423 Allen V. Allen, 95 Cal. 184, 30 P, 213; Phinney v. Phinney, 81 Me V. Bugbee, 24 How. (U. S.) 461; Champion v. Hinkle, 45 N. J. Eq. 162, 16 A. 701; Gunn v. Barry, 15 Wall. (U. S.) 610. 5. Morley v. Railroad Co., 146 450, 17 A. 405, 4 L. R. A. 348 and U. S. 162, 13 S. Ct. 54, affirming note, 16 Am. St. Rep. 266; Howard O'Brien v. Young, 95 N. Y. 428. 634 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 563-565 a judgment cannot be reduced.® And it is of no consequence that the judirnient, although calling for interest on the amount adjudged, did not specify the rate. The statute, then in force, fixed the rate, as the interest upon a judgment, secured by posi- tive law, is as much a part of the judgment as if expressed in it.^ § 564. Reducing rate of interest in redemption. — The pur- chaser at a decretal sale is entitled to interest at the rate pre- scribed by the statute when he purchased ; and this rule is ap- plicable to all decretal sales of mortgaged premises thereafter made, although the mortgage was given before the passage of the act. Such a reduction in the rate of interest does not im- pair the obligation of contracts between mortgagor and mort- gagee, because the subsequent statute does not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or affect any remedy which the mortgagee had, by existing law, for the enforcement of his contract.^ § 565. Change of procedure. — ^Where the change in the pro- cedure to collect debts does not materially affect the obligation it will be upheld. Thus, where the stockholders of a company are made jointly and severally liable for all debts of the com- pany until the whole amount is paid, a subsequent statute may change the right to proceed as specified in the original statute, 'and provide that all proceedings to enforce the liability of a stockholder for the debts of the company shall be either by suit in equity or by an action of debt upon the judgment obtained against the company or corporation, notwithstanding the fact that creditors were delayed.^ 6. Cox V. Mailatt, 36 N. J. L. 129 Ind. 217, 26 N. E. 899, 29 N. E. 389, and cases cited, 13 Am. Rep. 781, 15 L. R. A. 68 and note. 454. 1. Oshkosh Water Works Co. v. 7. Amis V. Smith, 16 Pet. (U. Oshkosh, 187 »J. S. 437, 23 S. Ct. S.) 303, 311. 234; McCullough v. Virginia, 172 8. Conn. Mut. L. etc. Insurance U. S. 102, 19 S. Ct. 134; Fourth Co. V. Cushman, 108 U. S. 51, 2 S. Nat. Bank v. Francklyn, 120 U. S. Ct. 236; Robertson v. Van Cleave, 747, 7 S. Ct. 757. 635 §§ 565, 566 OPERATION OF CONTRACTS. Ch. 18 But a statute which provides that a sale shall not be made of property levied on under an execution, unless it shall bring two-thirds of its valuation according to the opinion of three householders, is unconstitutional, because any law in its ope- ration amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy. This subsequent law impairs the obligation of the contract, by superadding a condition that there shall be no sale for any sum less than the value of the property levied on, to be ascertained by appraisement, or any other mode of valuation than a public sale, and affects the obligation of the contract, for it can be ■enforced only by a sale of the defendant's property, and the prevention of such sale is the denial of a right.^ So a statute authorizing redemption of mortgaged property in two years after the sale under a decree, by bona fide creditors of the mortgagor, is unconstitutional and void as to sales made under mortgages executed prior to the enactment.^ And so where a State gives a time for redemption to mortgage sales, the United States courts must follow such law and allow the mortgagor the prescribed time to redeem.* § 566. Extending the period of redemption. — ^Whatever be- longs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obliga- tion of the contract. But if the obligation is impaired, it is immaterial whether it is done by acting on the remedy or di- rectly on the contract itself. In either case it is prohibited by the constitution.^ Where the subsequent statute does not act upon the remedy but directly upon the contract itself, and adds a new condition injurious and unjust to the mortgagee, it is unconstitutional. Thus, when the subsequent statute declares that the equitable estate of the mortgagor after breach shall 2. McCracken v. Hayward, 2 4. Brine v. Ins. Co., 96 U. S. 627, How. (U. S.) 608. 637. 3. Howard v. Bugbee, 24 How. 1. Bronson v. Kinzie, 1 How. (U. (U. S.) 461. See, also, Bronson v. S.) 311; Green v. Biddle, 8 Wheat. Kinzie, 1 How. (U. S.) 311. (U. S.) 75. 636 Cll. 18 IMPAIRMENT OF OBLIGATION. §§ 566, 567 continue twelve months after the sale, a right which is added to the original contract by legislation, the statute is void as im- pairing the obligation of contract.^ So a subsequent statute which authorizes the redemption of property sold upon fore- closure of a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the time formerly allowed, is unconstitutional as applied to a sale under a mortgage executed before its passage.^ The law subsequently cannot carve out for the mortgagor or the owner of the mortgaged property an estate of several months more than was obtainable by him under the former law, with full right of possession, and without paying rent or accounting for profits in the meantime. What is sold under the subsequent act is not the estate mortgaged, but an estate subject to the pos- session, for the time extended, of another person who is under no obligation to pay rent or to account for profits, and the act there- fore impairs the obligation of contract, and is void/ § 567. Resale when bought by mortgagor for less than the debt. — A statute providing that property once sold under a mortgage foreclosure shall not be resold if bought by the mort- gagor for less than the debt, to satisfy the unpaid part of the debt, is void as to mortgages executed before the law was en- acted. Such a change in the law is not merely the substitution of one remedy for another, but is a substantial impairment of the rights of the mortgagee, as expressed in the contract, and is unconstitutional.^ 2. Bronson v. Kinzie, 1 How. (U. 4. Barnitz v. Beverly, 163 U. S. S.) 311. See, also, McCracken v. 118, 16 S. Ct. 1042; Howard v. Hayward. 2 How. (U, S.) 608; Bugbee, 24 How. (U. S.) 461 ; Green- Howard V. Bugbee, 24 How. (U. S.) wood v. Butler, 52 Kan. 424, 34 P. 461. 967, 22 L. R. A. 465; Watkins v. 3. Barnitz v. Beverly, 163 U. S. Glenn, 55 Kan. 417, 40 P. 316; 118, 16 S. Ct. 1042, overruling Bev- State v. Gilliam, 18 ]\Iont. 94, 45 erly v. Barnitz, 55 Kan. 461, 42 P. P. 661, overruling same case, 44 P. 725, and, in effect, overruling State 394, 33 L. R. A. 556. V. Sears, 29 Oreg. 580, 43 P. 482, 1. Barnitz v. Beverly, 163 U. S. 46 P. 785. 54 Am. St. Rep. 808; 118, 16 S. Ct. 1042. Van Baunibach v. Bade, 9 Wis. 559, 76 Am. Dec. 283. 637 § 567 OPERATION OF CONTRACTS. Ch. 18 But if the law was in force when the mortgage was exe- cuted it will apply. Thus, many statutes declare that the sale on a judgment or decree exhausts it as to the property sold, and the judgment creditor cannot, after redemption by a jun- ior encumbrancer, resell the land to enforce payment of an unsatisfied part of the judgment or decree.^ The object of the law is to compel creditors to bid a fair and adequate price for the debtor's property, and to prevent them from bidding a small sum, and, in the event of a redemp- tion, again subject the property to sale. The policy of the law is to prohibit the creditor from selling the property more than once for his own benefit, and to secure a just and fair price for the property in the first instance.' 2. Horn v. Bank, 125 Ind. 381, 25 N. E. 558, 9 L. R. A. 676, 21 Am. St. Rep. 231 and note; Anderson v. Anderson, 129 Ind. 573, 29 N. E. 35, 28 Am. St. Rep. 211; Green v. Stobo, 118 Ind. 332, 20 N. E. 850; Hervey v. Krost, 116 Ind. 268, 19 N. E. 125; Simpson v. Castle, 52 Cal. 644; People v. Eastern, 2 Wend. (N. Y.) 298; Russell v. Allen, 10 Paige (N. Y.), 249; Clay- ton V. Ellis, 50 Iowa, 590. 3. Anderson v. Anderson, 129 Ind. 573, 29 N. E. 35, 28 Am. St. Rep. 211. 638 P^RT V^. TERMINATION OF CONTRACTS. (639) PART A^. CHAPTER XIX. Impossible Contracts. ARTICLE I. Discharge by Impossibility of Conteact. Section 568. Impossible. 569. Difficulty and Hardship. 570. Condition Precedent. 571. Nonexistence of Subject-Matter. 672. Subject-Matter Ceasing to Exist. 573. Impossibility of Performing a Contract Subsequently Arising- 574. In Commercial Transactions. 575. Bailment of an Article to Be Repaired. 576. Excused by Act of Law. 577. Two Ways of Performance. 578. Judgments and Other Judicial Processes. 579. Promisee Preventing Performance. § 568. Impossible. — Every person who, in consideration of some advantage either to himself or to another person, prom- ises a benefit, must have the power of conferring that benefit up to the existence to which that benefit professes to go, and that not only in fact but in law; that is, the thing to be done should, in itself, be legal, and the party by whom the promise is made should have the power of carrying it into effect. If these conditions do not exist, the undertaking has no elements of a contract and is therefore of no avail to either party.^ It is elementary law that when the contract is to do a thing 1. Nerot V. Wallace, 3 Term R. 17. 641 § 568 TERMINATION OP CONTEACTS. Ch. 19 wliich is possible in itself, the promisor will be liable for a breach thereof, notwithstanding it was beyond his power to perform it, for it was his own fault of running such risk of undertaking to perform an impossibility, when he may have provided against it by his contract. But where from the nature of the covenant it is apparent that the parties contract on the basis of a continued existence of a given person or thing, con- dition is implied that if the performance becomes impossible, from the perishing of the person or thing that shall excuse such performance.^ And if the performance of a condition be prevented by the party entitled to take advantage of a breach, this excuses the performance.^ If the thing is only improbable, or out of the power of the promisor, it is not in law deemed impossible.^ Impossibility does not mean anything more than a prima facie legal impos- sibility or physical impossibility according to the state of knowl- edge of the period.^ The contract may be either impossible at law or in fact.^ So where there is obvious physical impossi- bility, or legal impossibility, which is apparent on the face of the contract, the contract is void.^ Where a contract shows that it is based on certain facts which have no existence, the con- tract is invalid.* The principle deducible from the authorities is that, if what is agreed to be done is possible and lawful, it must be done. Difficulty or improbability of accomplishing the understanding will not avail the defendant. It must be shown that the thing 2. Walker v. Tucker, 70 111. 524. 5. Cliftord v. Watts, L. R. 5 P. 3. Whitney v. Spencer, 4 Cow. C. 588. (N. Y.) 39; Carpenter v. Stevens, 6. Harvey v. Gibbons, 2 Lev. 12 Wend. (N. Y.) 589; People v. 161; James v. Morgan, 1 Lev. Ill; Bartlett, 3 Hill (N. Y.), 370; Wil- Thornborow v. Whiteacre, 2 Ld. liams V. Bank, 2 Pet. (U. S.) 97; Raym. 1164. Holme V. Guppy, 3 IMees. & We1. 7. Jacksonville, etc. Railway v. 387. Hooper, 160 U. S. 514, 16 S. Ct. 4. Clifford v. Watts, L. R. 5 C. 379. P. 588; Beebe v. Johnson, 19 8. Nordyke v. Kehlor, 155 Mo. Wend. (N. Y.) 500, 32 Am. Dec. 643, 56 S. W. 287, 78 Am. St. Rep. 518. 642 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 568, 569 cannot by any means be effected. ISTotbing sbort of this will excuse nonperformance.^ The general rule is that where an impossibility exists as to the performance of the contract, which is known to the prom- isor but not to the promisee, the former is liable in damages for failure to perform. Thus, where a telegraph company ac- cepts a message for transmission, but knows that its lines are down and the message cannot be sent, it is liable in damages to the party who gave the dispatch, he not being informed of the impossibility. ^° § 569. Difficulty and hardship. — If what is agreed to be done is possible and lawful, it must be done.^ Difficulty or improb- ability of accomplishing the undertaking will not avail the de- fendant. It must be shown that the thing cannot by any means be effected. ISTothing short of this will excuse nonperformance.^ The answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of the court to enforce contracts, not to make or modify them. Where there is neither fraud, accident, nor mistake, the exercise of dispensing power is not a judicial function.^ Impossible conditions cannot be performed ; and if a person contracts to do what at the time is absolutely impossible, the contract will not bind him, because no man can be obliged to perform an impossibility. But where the contract is to do a thing which is possible in itself, the performance is not excused 600; Gardner v. Lane, d Allen 2. Beebe v. Johnson, 19 Wend. (Mass.), 492. (X. Y.) 500, 32 Am. Dec. 518; 9. The Harriman, 9 Wall. ( U. Kitzinger v. Sanborn, 70 111. 146. S.) 172, 19 L. Ed. 633. 3. The Harriman, 9 Wall. (U. 10. Swan V. West. U. Tel. Co., S.) 161. See, also. Blight v. Page, 127 Fed. Rep. 730; Fleischner v. 3 Bos. & Pul. 295 ; Barker v. Hodg- Pacific Post. Tel. Co., 55 Fed. Rep. son. 3 Maule & Sel. 271; Mederas 738, 60 Fed. Rep. 899. See " Impos- v. Hill, 8 Bing. 235; Osgood v. sible Contracts." — 7 Western Re- Groning, 2 Camp. 466; Lorillard serve Law Journal, 99. v. Palmer, 15 Johns. (N. Y. ) 114. 1. Touteng v. Hubbard, 3 Bos. & Pul. 300. 643 §§ 669-5Y1 TERMINATION OF CONTBACTS. Ch. 19 by the occurrence of an inevitable accident, or other contin- gency, although it was not foreseen by the party, nor within his control.^ § 570. Conditions precedent. — A condition, inserted for the benefit of the party chargeable by the contract, must, in order to avoid the contract, be strictly performed.^ But where a con- dition, either precedent or subsequent, is impossible but not unlawful, it only is void, and the rest of the contract takes effect or is enforceable as though it contained no condition.® If the condition precedent is not known to be impossible when the contract is executed, and it becomes so by the act of God, the other party cannot be placed in default for this cause.'^ § 571. Non-existence of subject matter. — If the contract is made concerning a thing which does not exist, and both parties are acting in good faith, the contract is void,^ even though the subject-matter of the contract be known to both parties to be liable to a contingency which may destroy it immediately ; yet if the contingency has already happened, the contract will be void.^ And this rule may apply to a contract where part only 4. Jones v. United States, 96 U. v. Tiden, L. R. 9 Q. B. 446; Gibson S. 24, 29; Jacksonville, etc. Rail- v. Pelkie, 37 Mich. 380. way V. Hooper, 160 U. S. 514, 16 9. Hitchcock v. Giddings, Daniel, S. Ct. 379. 1; Allen v. Hammond, 11 Pet. (U. 5. Bruce v. Snow, 20 N. H. 484; S.) 63; Daniel v. Mitchel, 1 Story, Oakley v. Morton, 1 Ker. (N. Y.) C. C. 172; Miles v. Stevens, 3 Pa. 25. St. 21, 45 Am. Dec. 621 and note; 6. Merrill v. Bell, 6 Sm. & M. Scruggs v. Driver, 31 Ala. 274; (Miss.) 730; Hughes v. Edwards, French v. Townes, 10 Gratt. (Va.) 9 Wheat. (U. S.) 489. 513; Ketchum v. Catlin, 21 Vt. 7. Howell v. Knickerbocker Ins. 191; Anderson v. Amstead, 69 111. Co., 44 N. Y. 276, 4 Am. Rep. 675; 452; Bradford v. Chicago, 25 111. Mezell V. Burnett, 4 Jones (N. 411; Thompson v. Gould, 20 Pick. Car.), 249. (Mass.) 134; Silvernail v. Cole, 12 8. Suydam v. Clark, 2 Sand. (N. Barb. (N. Y.) 685; Scioto Brick Y.) 133; Sherman v. Barnard, 19 Co. v. Pond, 38 Ohio St. 65; King Barb. (N. Y.) 291; Hazard v. Ins. v. Doolittle, 1 Head (Tenn.), 77; Co., 1 Sumner, C. C. 218; Couturier Harrell v. De Normandie, 26 Tex. v. Hastie, 5 H. L. Cas. 673; Smith 120; Hopkins v. Hinkley, 61 Md. 644 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 571, 572 of the subject-matter is not in existence, thus being valid in part and void in part.^° § 572. Subject-matter ceasing to exist. — But there is such a defense as an impossibility of performance. Instances of such a defense are found in cases where the subject-matter of the contract had ceased to exist, as where there was a contract of sale of a cargo of grain supposed by the parties to be on its voy- age to England, but which, having become heated on the voy- age, had been unloaded and sold. This contract was void be- cause it imputed that there was something to be sold and pur- chased at the time of the contract, which had ceased to exist.^ So, where a person purchased an annuity which, at the time of the purchase, had ceased to exist owing to the death of the annuitant, the contract was void, and the party could recover the amount paid for it.^ This is on the principle that the par- ties had been mutually mistaken and the contract no longer remains.^ Where the continued existence of a thing is essential to the performance of the contract, its destruction ends the contract if both parties are not in fault.* Thus, a lessor of a hotel cove- nanted with the lessee that the latter should be supplied with water from a spring which became dry, and it was held that the contract ceased.^ And so, where a music hall, after being let, was consumed by fire, before the day of performance, the contract ceases and the lessor is not liable.^ 584; Rogers v. Walsh, 12 Neb. 28, 4. The Tornado, 108 U. S. 342, 2 10 N. 467; State v. Illyes, 87 Ind. S. Ct. 746; Ward v. Vance, 93 Pa. 405. 8t. 499 ; Dexter v. Norton, 47 N. Y. 10. Clifford V. Watts,. L. R. 5 C. 62, 7 Am. Rep. 415; Wells v. Cal- P. 577. nan, 107 Mass. 514, 9 Am. Rep. 1. Courturier v. Hastie, 5 H. 65; Lord v. Wheeler, 1 Gray L. Cas. 673; Allen v. Hammond, 11 (Mass.), 282; Gould v. Murch, 70 Pet. (U. S.) 63. Me. 288, 35 Am. Rep. 325. 2. Strickland v. Turner, 7 5. Ward v. Vance, 93 Pa. St. Exch. 208. 499. 3. Taylor v. Caldwell, 3 Best & 6. Taylor v. Caldwell, 3 Best & S. 826; Walker v. Tucker, 70 111. S. 826. 527. 645 §§ 572, 573 TERMINATION OF CONTEACTS. Ch. 19 And so, where a party endeavored to put machinery into a building of another, and the structure was consumed by fire, no liability could be attached to the owner of the building, and the machinist had no remedy for the work already done.^ And where parties paid a wife certain compensation so long as she remained apart from husband, the death of the husband put an end to the contract.^ An owner of a stallion insured the mares served by his horse, with a further agreement, that if the service did not prove effective, a free service should be given the following year. Upon this condition, if the stallion dies before the second year, a party whose mare failed to be with foal the first year, must pay for the service;^ because the minds of the parties are presumed to have contemplated the possible destruction of the property. § 573. Impossibility of performing a contract subsequently arising. — Impossibility of performing a contract, arising after the making of it, although without any fault on the part of the covenantor, does not discharge him from his liability under it.^ Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwith- standing any accident by inevitable necessity, because he might have provided against it by his contract.^ 7. Appleby v. Myers, L. K. 2 C. 25 Miss. 83; Engster v. West, 35 P. 651, reversing same case in 1 C. La. Ann. 119, 48 Am. Rep. 232; P. 615. Compare Cleary v. SoMer, Dermott v. Jones, 2 Wall. (U. S.) 120 Mass. 210; Richardson v. 1. Shaw, 1 Mo. App. 234. 2. Paradine v. Jane, Aleyn, 26; 8. Miller v. Woodward, 2 Beav. Walton v. Waterhouse, 2 Wm. 271. Saund. 422, a; Brecknock Company 9. Price v. Pepper, 13 Bush. v. Pritchard, 6 Term R. 750; Ford (Ky.) 42. V. Cotesworth, L. R. 4 Q. B. 127; 1. Jacksonville, etc. Railroad Co. Kearson v. Pearson, 7 Hurl. & N. V. Hooper, IGO U. S. 514, 16 S. Ct. 386; Booth v. Mill Co., 60 N. Y. 379; Paradine v. Jane, Aleyn, 26; 487; Stees v. Leonard, 20 Minn. Bunn v. Prather, 21 HI. 217; School 494; Kitzinger v. Sanborn, 70 111. District v, Dauchy, 25 Conn. 530, 146; Bacon v. Cobb, 45 111. 47; Har- 68 Am. Dec. 371; Davis v. Smith, rison v. Railroad Co., 74 Mo. 364, 15 Mo. 467; Jemison v. McDaniel, 41 Am. Rep. 318; Adams v. Nichols, 646 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 573, 574 Thus, if a person contracts to build a house, he is neither excused from performance, nor entitled to recover for what he has done, when the house is destroyed by fire or other cause beyond his control, before completion of the work and accept- ance by the owner.^ If a man undertakes what he cannot perform, he is re- sponsible to the person with whom he contracts,'* § 574. In commercial transactions. — In establishing rules of liability in commercial transactions, they should be uniform and certain. It is presumed that the parties contemplated the continued existence of the subject-matter of the contract. Thus, where a contract is made for the sale and delivery of specified articles of personal property, under such circumstances that the title does not vest in the vendee, if the property is destroyed by accident, without the fault of the vendor, so that the delivery is never made, the vendor is not liable to the vendee in dam- ages for nondelivery.^ So, if a party agrees to sell and deliver personal property to the vendee on a fixed day, and the property is destroyed in the interval, the obligation ceases and the vendee has no rem- edy.^ There is no hardship in placing the parties in the posi- tion they were in before the contract was made. And it can 19 Pick. (Mass.) 275, 31 Am. Dec. Lnwing v. Rentles, 97 N. Car. 350, 137 ; School Trustees V. Bennett, 27 21 S. E. 252. See, also, Breck- N. J. L. 513, 72 Am. Dec. 373; The nock Company v. Pritchard, 6 Term Harriman, 9 Wall. (U. S.) 161; R. 750; Siegel v. Eaton. 105 111. Jacksonville, etc. Railway v. 550, 46 N. E. 449. Hooper, 160 U. 8. 514, 16 S. Ct. 4. Blight v. Page, 3 Bos. & Pul. 379; Atkinson v. Ritchie, 10 East, 295; Baker v. Hodgson, 3 Maule & 530. See, also, Bullock v. Donimit, Sel. 271; Mederes v. Hill, 8 Bing. 6 Term R. 650; Phillips v. Stevens, 235; Osgood v. Groning, 2 Camp. 16 Mass. 238; Gates v. Green, 4 466; Market Co. v. New Orleans, Paige (N. Y.), 355, 27 Am. Dec. 47 La. Ann. 205, 16 So. 831; Mis- 68; Holtzapflfell v. Baker, 18 Ves. sissippi Logging Co. v. Robson, 69 115. Fed. Rep. 773. 3. School Trustees v. Bennett, 27 1. Dexter v. Norton. 47 N. Y. N. J. L. 513, 72 Am. Dec. 373; Fel- 62, 7 Am. Rep. 415. dew V. Besley, 42 Mich. 100, 3 N. 2. Benjamin on Sales, 424. 278, 36 Am. Rep. 433 and note; 647 §§ 574-576 TERMINATION OF CONTEACTS. Ch. 19 make no difference how the property was destroyed, so long as the party was not in any degree in fault. The minds of the parties are presumed to have contemplated the possible destruc- tion of the property, and not the manner of its destruction. § 575. Bailment of an article to be repaired. — The case of a bailment of an article, locatio operis faciendi, is generally con- trolled by a different rule. If the article intrusted to the work- man is lost without his fault, the owner must sustain the loss, because there is no express agreement to return the article to the owner in a finished condition. There is an implied obli- gation of the workman to do the work in a proper manner, and to employ the materials furnished in the right way.^ These obligations grow out of the act of bailment; they are its legal consequences, and the law declares them to be so. Under the bankrupt law cases may arise, involving the ques- tion, when, under the circumstances of each case, the property in an incomplete chattel in process of manufacture passes out of the bankrupt, so as not to belong to his assignee, and the question, upon whom the loss is to fall, occasioned by an in- evitable accident, may be settled by determining what is equitable.* § 576. Excused by act of law. — The nonperformance of a contract will always be excused where it is based upon an act of law.^ So a covenant in a lease of a wooden building binding 3. Menetone v. Athawes, 3 Burr. 4. Tripp v. Armitage, 4 Mees. & 1592; Lord v. Wheeler, 1 Gray Wels. 689; Woods v. Russell, 5 (Mass.), 282; Weis v. Devlin, 67 Barn. & Aid. 942; Claries v. Spence, Tex. 507, 3 S. W. 726, 60 Am. Rep. 4 Ad. & El. 448. 38; Wheelan v. Clock Co., 97 N. Y. 1. Cheny v. Cowan, 1 Dev. & Bat. 293; Haynes v. Church, 88 Mo. ("NT. Car.) 402; Stern v. Dermis, 3 285, 57 Am. Rep. 413; Hindrey v. Port. (Ala.) 231; Trimmier v. Williams, 9 Colo. 371, 12 P. 436; Thompson, 10 S. Car. 164; Missis- Wells V. Calnan, 107 Mass. 514, 9 sippi, etc. R. R. Co. v. Green, 9 Am. Rep. 65; Butterfield v. Byron, Heisk. (Tenn.) 588; Baker v. John- 153 Mass. 517, 27 N. E. 667, 12 L. son, 42 N. Y. 126; Bailey v. De R. A. 571 and note, 25 Am. St. Rep. Crespigny, L. R. 4 Q. B. 180, 186, 654; Cook v. McCabe, 53 Wis. 250, 187; Cordes v. Miller, 39 Mich. 10 N. 507, 40 Am. Rep. 765. 581, 33 Am. Rep. 430; Buffalo, etc. 648 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 576-578 the lessor to rebuild in case it burns, is released by the passage of a valid municipal ordinance forbidding the erection of wooden buildings.^ But if the change in the law is only temporary, the liability is suspended and not annulled, and the contract must be per- formed Avhen the law is revived.^ And the fact that the per- formance of a contract is rendered more burdensome and ex- pensive by law after it is entered into never exonerates a party from his obligation,* provided it is still possible of performance. § 577. Tv^ro ways of performance. — If a promisor makes his contract unconditionally to do a thing he is bound, because he takes the risk of being liable even though performance becomes impossible by reason of circumstances beyond his control. And where he has an option to perform his contract in one of two ways, and it becomes impossible of performance in one of those ways, he must perform it in the other way.^ § 578. Judgments and other judicial processes. — Judgments and other judicial processes may be discharged by act of law. So long as a judgment debt exists, it may be enforced for the benefit of the judgment creditor. But a judgment is subject, however, like other debts, to the bankrupt and insolvent laws. So a judg-ment debtor, being discharged from his debts, pur- R. R. Co. V. Railroad Co., Ill N. 259; Baglies v. Fettyplace, 7 Mass. Y. 132, 19 N. E. 63, 2 L. R. A. 384; 325. Calhoun v. Calhoun, 2 S. Car. 283; 4. Baker v. Johnson, 42 N. Y. People V. Ins. Co., 91 N. Y. 174; 12(5. Espasito V. Bowden, 7 El. & B. 1. Studholme v. Mandell, 1 Ld. 763; Jones v. Judd, 4 N. Y. 411; Raym. 279; Mcllquhan v. Taylor Brick Presbyterian Church v. New (1895), 1 Ch. 53, 8 Reports, 750; York, 5 Cow. (N. Y.) 538; Sem- Jacquinet v. Boutron, 19 La. Ann. mes V. Ins. Co., 13 Wall. (U. S.) 30; State v. Worthington, 7 Ohio, 158; Brewster v. Kitchell, 1 Salk. 171; Drake t. White, 117 Mass. 10; 198; Anglesea v. Rugeley, 6 Q. B. Da Costa v. Davis, 1 Bos. & Pul- 107; Brown v. Dillahunts, 4 Sm. 242; Stevens v. Webb, 7 Car. & P. & M. (Miss.) 713, 4B Am. Dee. 499. 60; Backworth v. Young, 4 Drew. 2. Cordes v. Miller, 39 Mich. 581, 1. See, also. Edwards v. West, 7 33 Am. Rep. 430. Ch. D. 853; Brown v. Ins. Co., 1 3. Hadley v. Clarke, 8 Term R. El. & E. 853; Erie Railway v. Locomotive Co., 35 N. J. L. 240. 649 §§ 578, 579 TERMINATION OF CONTEACTS. Ch. 19 suant to the provision of the bankrupt or insolvent law, the debt is also cancelled and the judgment cannot thereafter be enforced.^ And other judicial processes may discharge a debt, by render- ing its enforcement impossible.^ But a party is not discharged from his obligation to perform his contract by the fact that he is arrested and detained in jail, even though it is without any fault of his. In such case the other party may rescind the con- tract. This is especially so between master and servant. If the servant is arrested and placed in jail, he breaks his contract of employment and the master may declare the contract for- feited.^ § 579- Promissee preventing performance. — Where the promisee prevents performance, the promisor is discharged, and the promisee cannot escape liability because he has not signed the contract. Where a contract on its face appears to be obligatory upon one party only, but it is manifest that it was the intention of the parties, and the consideration upon which the one party assumed an express obligation was, that there should be a corresponding and correllative obligation on the Other party, such obligation will be implied.* And if the promisee prevents the fulfilment of the contract, the promisor will be discharged.^ And the acceptance of a building as finished but not in ac- cordance with the original contract, waives the contract condi- tion, and the contractor is discharged from the condition.^ 1. Blumenthal v. Andeison, 91 & S. 807; Pordage v. Cole, 1 Wm. N. Y. 171. Saund. 319. 2. Leopold V. Salkey, 89 111. 412, 5. Cort v. Railway Co., 17 Ad. 31 Am. Rep. 93 and note; Walker & El. 127; Derby v. Johnson, 21 V. Fitts, 24 Pick. (Mass.) 191, 35 Vt. 17; Clark v. Marsiglia, 1 Denio Am. Dec. 296; Lord v. Thomas, 64 (N. Y.), 317, 43 Am. Dec. 670 and N. Y. 107. note; Black v. Woodrow, 39 Md. 3. Leopold V. Salkey, 89 111. 412, 194. 31 Am. Rep. 93 and note. 6. Smith v. Aiker, 102 N. Y. 87, 4. Black V. Woodrow, 39 Md, 5 N. E. 791. 194; Churchward v. Queen, 6 Best 650 Ch. 19' IMPOSSIBLE CONTRACTS. § 580 ARTICLE II. Pekfobmance Excused by Act of God and Public Enemy. Section 580. Act of God will Excuse Performance. 581. By Public Enemy. 582. Act of God — Common Carriers. 583. Common Carriers — When Liable for Loss by Act of God. 584. Where Law Imposes a Duty. 585. Innkeepers. 586. Failure of Consideration by Act of God. 587. Destruction by Fire. 588. Performance — Intervention of the Act of God. § 580. Act of God will excuse performance. — By the act of God is meant something- superhuman or something in opposi- tion to the act of man.^ The act of God is some manifestation of nature to which man has not contributed and which he can- not avert or overcome, such as lightning, cold, or a tempest; fire caused bj lightning but not from an ordinary accident.^ So where the thing contracted for becomes impossible, by the act of God, the obligated party is excused from performance.' Another class of cases holds that the act of God will excuse the nonperformance of a duty created by law, but not of one created by contract.'* But the general rule is that a loss or injury is due to the act of God when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and fore- 1. Chicago, etc. R. R. Co. v. Saw- Browne v. United States, 30 Ct. CI. yer, 69 111. 285, 18 Am. Rep. 613; 124; Usher v. Hiatt, 18 Kan. 195; Hale V. Navigation Co., 15 Conn. Selden v. Preston, 11 Bush (Ky.), 539, 39 Am. Dec. 398; Nichols v. 191; Morrow v. Campbell, 7 Port. Marsland, L. R. 10 Exch. 255. (Ala.) 41, 31 Am. Dec. 704; Baily 2. Price v. Hartshorn, 44 N. Y. v. De Crespigny, L. R. 4 Q. B. 180, 94, 4 Am. Rep. 645; Merchants* 185. Despatch Co. v. Smith, 76 111. 542; 4. School Dist. v. Dauchy, 25 Vail v. Railroad Co., 63 Mo. 230. Conn. 530, 68 Am. Dec. 371. See, 3. Walton v. HoUis (Miss.), 16 also, Jemison v. McDaniel, 25 Miss. South. Rep. 260; Burrill v. Cross- 83; Bryan v. Spurgin, 5 Sneed man, 65 Fed. Rep. 104; Bullman v. (Tenn.), 681; Clancy v. Overman, Fenwick (1894), 1 Q. B. 179; 1 Dev. & Bat. (N. Car.) 402. 651 §§ 580-582 TERMINATION OF CONTRACTS. Ch. 19 sight, and such act will excuse performance.^ An unprece- dented flood, by reason of which the baggage of a passenger is swept away, is an act of God.® § 581. By the public enemy. — A performance may be ex- cused by the public enemies of the parties' nation. But by enemies is to be understood, enemies with whom the nation is itself at open war, and not merely robbers, thieves and other private depredators, however much they may be deemed in a moral sense at war with society. Losses, therefore, which are occasioned by robbery on the highway or by the depredations of mobs, riots, insurrections and other felonies, are not deemed losses by enemies within the meaning of the exceptions, and do not excuse the performance of contracts.'^ § 582. Act of God — Common carriers. — A common carrier must carry the goods safely. If the goods are destroyed, not by the act of God or the public enemy, the carrier is responsible.^ Acts of God excuse the carrier when diligence is used.^ Thus, the bursting of a waterspout, causing an accident on a rail- road train, is an act of God.^ And so is an unprecedented flood an act of God.* Where the act is produced exclusively by 5. Wald V. Railroad Co., 162 111. 6 Mo. App. 554; Long v. Railroad 545, 44 M. E. 888, 35 L. R. A. 356, Co., 147 Pa. St. 343, 23 A. 459, 14 53 Am. St. Rep. 332. L. R. A. 741, 30 Am. St. Rep. 732 6. Wald V. Railroad Co., 162 111. and note; Transportation Co. v. 545, 44 N. E. 888, 35 L. R. A. 356, Downie, 11 Wall. (U. S.) 130; 53 Am. St. Rep. 332. Norfolk, etc. R. R. Co. v. Marshall, 7. State V. Moore, 74 Mo. 413, 90 Va. 836, 20 S. E. 823; Wald v. 41 Am. Rep. 322; Forward v. Pit- Railroad Co., 162 111. 545, 44 N. E. tard, 1 Term R. 27, 34; Gordon v. 888, 35 L. R. A. 356, 53 Am. St. Rimmington, 1 Camp. 123; Sugar- Rep. 332; Strohn v. Railroad Co., man v. State, 28 Ark. 142. 23 Wis. 126, 99 Am. Dec. 114 and 1. Holladay v. Kennard, 12 Wall. note; Wallace v. Sanders, 42 Ga. (U. S.) 254; Packard v. Taylor, 35 486; Houston, etc. R. R. Co. v. Ark. 402, 37 Am. Rep. 37; Milti- Harn, 44 Tex. 628. more v. Railroad Co., 37 Wis. 190. 3. Norfolk, etc. R. R. Co. v. Mar- 2. Curtis V. Railroad Co., 18 N. shall, 90 Va. 836, 20 S. E. 823. Y. 534, 75 Am. Dec. 258 and note; 4. Wald v. Railroad Co., 162 111. Railroad Co. v. Reed, 10 Wall. (U. 545, 44 N. E. 888, 35 L. R. A. 356, S.) 176; Gillespie v. Railroad Co., 53 Am. St. Rep. 332. 652 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 582,583 natural causes such as could not be preA'^ented by human care, skill and foresight, the common carrier is excused.^ § 583. Common carrier — When liable for loss by act of God. — Unnecessary delay of a carrier which subjects the goods in its possession to a loss by an act of God which they would not otherwise have met with, is of itself such negligence as will make the carrier liable for the loss.'' Thus, a deviation from the usual course by master of a ves- sel, during which time a cargo is injured by a storm at sea, is a sufficient proximate cause of the loss to entitle the shipper to recover, as it brings the vessel in contact with the storm, in itself the act of God.^ Where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause, the carrier will be responsible.' Therefore, a carrier, without sufficient reason, which fails to forward the baggage upon a limited train taken by the owner of it, is liable for its destruction by a flood which comes upon the later train on which it is shipped, though such flood is in itself an act of God.* 5. Wald V. Railroad Co., 162 111 545, 44 N. E. 888, 35 L. R. A. 356 53 Am. St. Rep. 332 ; Long v. Rail road Co., 147 Pa. St. 343, 23 A 459, 14 L. R. A. 741, 30 Am. St Rep. 732 and note; Railroad Co. v Reed, 10 Wall. (U. S.) 176. 1. Baltimore, etc. R. R. Co. v School Dist., 96 Pa. St. 65, 42 Am Rep. 529; Philadelphia, etc. R. R Co. V. Anderson, 107 Pa. St. 360: Michigan Central R. R. Co. v. Cur tis, 80 in. 324; Wald v. Railroad Co., 162 III. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332; Michaels v. Railroad Co., 30 N. Y. 564; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 415; Dening v. Railroad Co., 48 N. H. 455, 2 Am. Rep. 267; Read v. Railroad Co., 60 Mo. 199; Williams v. Grant, 1 Conn. 487; Davis v. Garrett, 6 Bing. 716; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dee. 745; Rod- gers V. Railroad Co., 67 Cal. 606, 8 P. 377; Salesbury v. Herchenroder, 106 Mass. 458; Higgins v. Dewey, 107 Mass. 494, 8 Am. Rep. 354. Compare Denny v. Railroad Co., 13 Gray (Mass.), 481, 74 Am. Dec. 645; Morrison v. Davis, 20 Pa. St. 171, 57 Am. Dec. 695 and note. 2. Davis V. Garrett, 6 Bing. 716. 3. Wolf V. Express Co., 43 Mo. 421, 97 Am. Dec. 406 and note. 4. Wald V. Railroad Co., 162 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332. 653 §§ 584, 585 TERMINATION OF CONTBACTS. Ch. 19 § 584. Where law imposes a duty. — Where the law imposes a duty npon a party, and he is disabled to perform it by the act of God, the performance is excused.^ But where the prom- isor is a public officer the case is different. A public officer insures the safetly of all moneys officially received by him against loss by any means whatever, including such loss as arises from the act of God or the public enemy. And this lia- bility is mainly due to public policy and the evil consequences which would follow from any less rigid rule.® But the case of a public officer is different from that of a guardian who is liable only for honesty and due diligence.'' § 585. Innkeepers. — Innkeepers are insurers of the property of their guests committed to their care, and are liable for its loss or injury, when not caused by the act of God, the public enemy, or the neglect or fault of the owner or his servants.^ Upon proof of loss, the onus of bringing the case within the exception is upon the innkeeper.^ The statute now gives the innkeeper a right to make reason- able rules as to the disposition of a guest's baggage, money and other valuables, which must be complied with in order to make the innkeeper liable. When a guest's goods are at a hotel and he leaves, he has a reasonable time to remove them,^ and the innkeeper's extraor- 5. Mosely v. Baker, 2 Sneed 7. Atkinson v. Whitehead, 66 N. (Tenn.), 302, 58 Am. Dec. 63; Ry- Car. 296. lands V. Fletcher, L. R. 3 H. L. 1. Norcross v. Norcross, 51 Me. 330, 340; Rea v. Somerset, 8 Term 163. R. 312. 2. Shaw v. Berry, 31 Me. 479, 6. United States v. Dashiell, 4 52 Am. Dec. 628; Mason v. Thomp- How. (U. S.) 182; United States son, 9 Pick. (Mass.) 280, 20 Am. V. Prescott, 4 How. (U. S.) 587; Dee. 471; Norcross v. Norcross, 51 United States v. Keeler, 1 Wall. Me. 163. (U. S.) 83; Thompson v. Trustees, 3. Murray v. Marshall, 9 Colo. 30 111. 99; Hancock v. Hazzard, 12 482, 13 P. 589, 59 Am. Rep. 152; Cush. (Mass.) 112, 59 Am. Dec. Maxwell v. Gerard, 84 Hun, 537, 32 171; Muzzy v. Shattuck, 1 Denio JSI. Y. S. 849, 66 N. Y. St. 323; (N. Y.), 233; Havens v. Lathene, Adams v. Clem, 41 Ga. 65, 5 Am. 75 N. Car. 505; State v. Bladen Kep. 524. County, 73 N. Car. 255. 654 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 585-587 dinarj liability would remain until the expiration of such rea- sonable time, which will vary according to the circumstances.' And when a clerk of the hotel agrees with a guest to forward packages and letters that shall come to the latter, he acts as an agent of his principal, the hotel owTier, or landlord, who is bound so far as such acts are within the duties and liabilities of an innkeeper. And an agreement to forward letters and packages by the clerk is within the scope of his business and binds his principal.* Innkeepers and travelers recognize the fact that it is essential to the proper conduct of business that letters and packages to business and traveling men be for- warded ; it is a general practice on account of the increased demand for more extended accommodations in this respect. But innkeepers are not liable after the relation of guest and innkeeper has ceased and the guest has left.^ § 586. Failure of consideration by act of God. — A consid- eration may fail by some superhuman agency. Thus, no action lies on an agreement by a student, promising to pay for tuition for a specified time if, during the interval of that period, the promisor is prevented by sickness from attending and receiving the instruction. As the instruction was not received, the con- sideration had failed. For the parties have acted upon the as- sumption of the continuing ability of the promisee to give and of the promisor to receive the proposed instruction.^ § 587. Destruction by fire. — Destruction by fire does not discharge the promisor. Thus, where a person has contracted unconditionally to build a house on the land of another, and the house is partially completed when it is consumed by fire, the promisor is not discharged from his obligation to fulfill the contract^ Such a fire is not the act of God. And so, where 4. Baehr v. Downey, 132 Mich. 259, 12 L. R. A. 382 and note; Hays 142. V. Turner, 23 Iowa, 214. 5. O'Brien v. Vail, 22 Fla. 627, 6. Stewart v. Loring, 5 Allen 1 So. 137, 1 Am. St. Rep. 219; (Mass.), 306, 81 Am. Dec. 747. Glenn v. Jackson, 93 Ala. 342, 9 So. 7. Adams v. Nichols, 19 Pick. 655 §§ 587, 588 TERMINATION OF CONTKACTS. Ch. 19 a publisher has been employed to publish a certain number of copies of a work, and prints them and delivers a part, and the rest is consumed bj fire, he cannot recover for those delivered, and his contract is still binding to deliver the remainder.* But fire caused by lightning is an act of God.^ Ship-owners, by act of Congress of 1851, are relieved from all responsibility by fire, when acting with due diligence. ^° Under the general rule, if a schoolhouse burns, and a school is in progress, the school authorities must find a place to con- tinue the school, and if they do not the teacher can recover for the entire time of his contract, though the school is suspended." § 588. Performance — Intervention of the act of God. — The nonperformance of a contract is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance of it im- possible.-^ And the most a court of equity can do in a case where an agreement cannot be carried out according to the intention of the parties, in consequence of an act of God or something over which the parties could have no control, is to adopt such an equitable arrangement as the parties probably would have inserted in the agreement on that subject, if they had foreseen the probability of such an event and provided for the same.* The rule that if the thing to be done becomes physically im- (Mass.) 275, 31 Am. Dec. 137; Dist. v. Daucliy, 25 Conn. 530, 68 Jones V. United States, 96 U. S. Am. Dec. 371. 24; School Trustees v. Bennett, 27 10. K Y. Cent. Railroad Co. v. N. J. L. 513, 72 Am. Dec. 373; Lockwood, 17 Wall. (U. S.) 357. Fildevv v. Basley, 42 Mich. 100, 3 11. Charlestown School Town v. N. 278, 36 Am. Rep. 433 and note; Hay, 74 Ind. 127. Dermott v. Jones, 2 Wall. (U. S.) 1. Williams v. Vanderbilt, 28 N. 1; Lawing v. Rintles, 97 N. Car. Y. 217. Compare Briggs v. Vander- 350, 2 S. E. 252. bilt, 19 Barb. (N. Y.) 222; Bon- 8. Adlard v. Booth, 7 Car. & P. steel v. Vanderbilt, 21 Barb. (N. 108. Y.) 26. 9. Bishop on Cont. 593. As to 2. Newton v. Rowse, 1 Vern. discharge of contract by a fire 460; Quick v. Stuyvesant, 2 Paige caused by lightning, see School (N. Y.), 84; Chase v. Barrett, 4 Paige (N. Y.), 148. 656 Ch. 19 IMPOSSIBLE CONTRACTS. § 588 possible to be done by the act of God, performance is excused, does not prevail when the essential purpose of the contract may be accomplished. If the intention of the parties can be substantially, though not literally executed, performance is not excused.^ And where a statute makes a contract in part un- lawful, if justice can be done, the lawful part should be per- formed, otherwise not.* The fact that the performance of a contract to furnish hay has been rendered impossible by failure of the crop through natural causes, relieves the party of the duty to perform.^ Where performance is prevented by the act of God, no breach can be assigned, although no reference thereto was made in the contract.^ The breaking of machinery is not an act of God and does not excuse performance of contract.^ But where some fortuitous event prevents performance, the defendant will be excused.* So a failure to run street cars at certain intervals according; to contract, is excused by heavy fall of snow, provided the street car company exercised due diligence to make the trips.* 3. White V. Mann, 26 Me. 361; Chapman v. Dalton, Plowd. 284; Haltham v. Ryland, 1 Eq. Cas. Abr. 18. 4. Bettsworth v. St. Paul, 1 Bro. P. C. 240. 5. Browne v. United States, 30 Ct. CI. 124w 6. Gleason v. United States, 33 Ct. CI. 65. 7. Day v. Jeffords, 102 Ga. 714, 29 S. E. 591. 8. Eomero v. Newman, 50 La. Ann. 80, 23 S. E. 493. 9. Buffalo, etc. Land Co. v. Bel- levue, etc. Imp. Co., 165 N. Y. 247, 59 N. E. 5, 51 L. R. A. 951. 657 § 589 TERMINATION OF CONTEACTS. Ch. 19 ARTICLE III. KoNPEEFORMANCE OF CONTRACT OF PERSONAL SERVICE. Section 589. Personal Service. 590. Where Personal Skill is not Required. 591. Sickness. 592. Death of Employer. § 589. Personal service. — Contracts for the personal services, whether of the contracting or of a third person, requiring skill, and which can only be performed by the particular individual named, are not in their nature, of absolute obligation under all circumstances. Both parties contemplate the continuance of the ability of the person whose skilled services are the sub- ject of the contract, as one of the conditions of the contract. Contracts for personal services are subject to this implied con- dition, that the person shall be able at the time appointed to perform them ; and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished.^ Thus, where the principal singer in an opera troupe is sick, the manager of the troupe is excused from performing, though he had made a contract with the proprietor of the theatre to perform.^ But if the failure to perform is from a less serious cause than sickness, the promisor will not be excused.^ 1. Robinson v. Davison, L. R. 586; Green v. Gilbert, 21 Wis. 6 Exch. 268; Boast v. Firth, 4 C. 401; Jennings v. Lyons, 39 Wis. P. 1; People v. Manning, 8 Cow. 553, 20 Am. Rep. 57; Allen v. (N. Y.) 297; Jones v. Judd, 4 N. Baker, 86 N. Car. 91, 41 Am. Rep. Y. 411; Clark v. Gilbert, 26 N. Y. 445; Fenton v. Clark, 11 Vt. 557; 279, 84 Am. Dec. 189; Wolfe v. Hubbard v. Belden, 27 Vt. 645; Howes, 24 Barb. (N. Y.) 174, 20 Fuller v. Brown, 11 Met. (Mass.) N. Y. 197, 75 Am. Dec. 388; Gray 440; Shulz v. Johnson. 5 B. Mon. V. Murr.ay, 3 Johns. Cas. (N. Y.) (Ky.) 497; Scully v. Kirkpatrick, 167; Knight v. Bean, 22 Me. 531; 79 Pa. St. 324, 21 Am. Rep. 62. Poussard v. Spiers, 1 Q. B. D. 410; 2. Spalding v. Rosa, 71 N. Y. Harrington v. Iron Works, 119 40, 27 Am. Rep. 7. Mass. 82; Siler v. Gray, 86 N. Car. 3. Earp v. Tyler, 73 Mo. 617. 658 Ch. 19 IMPOSSIBLE CONTRACTS. §§ 589, 590 A contract made by a painter to paint a picture, or an autlior to write a book, or an apprentice to serve bis master a specified number of years, or in any contract for personal services de- pendent upon tbe life of tbe individual making it, tbe contract is discbarged upon the death of the party, in accordance with the condition of continued existence raised by implication. In contracts in which performance depends on the continued ex- istence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance ; because from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the par- ticular person or thing.^ Where one employed to teach in a public school for a certain period, the fact that the school was necessarily closed for part of the time by order of the Board of Health, does not deprive the teacher of the right of compensation for the entire time, since such closing of the schools was not the act of God.^ § 590. Where personal skill is not required. — The perform- ance of all contracts does not require personal skill of the promisor, and others may fulfill the conditions. Thus, the per- sonal representatives of a deceased promisor may be called up- on to perform the agreement where the services are of such a character that they may be just as well performed by them.® Hence, the sickness of a contractor does not excuse his per- formance, because he can build the house by proxy.' In such case if the promisor dies his personal representatives take his 4. Taylor v. Caldwell, 3 Best & Shulz v. Johnson, 5 B. Mon. (Ky.) S. 826, 2 Smith's Lead. Cas. 50; 407; Janin v. Brown, 59 Cal. 37; Pothier on Contracts and Sales, Howe Sew. Mach. Co. v. Rosenteel, art. 4, sec. 1, p. 31. 24 Fed. Rep. 583; Werner v. Hum- 5. Carthage v. Gray, 10 Ind. phreys, 3 Scott, N. R. 226, 2 Man. App. 428, 37 N. E. 1059. & Gr. 853; Smith v. Coal Co., 83 6. Siler v. Gray, 86 N. Car. 566; 111. 498. Billing's Appeal, 106 Pa. St. 558; 7. Cassady v. Clarke, 7 Ark. Hawkins v. Ball, 18 B. Mon. (Ky.) 123. 816, 68 Am. Dec. 755 and note; 659 §§ 590-592 TERMINATION OF CONTEACTS. Ch. 19 place and are subject to fulfill his promises and to carry them into effect.^ § 591. Sickness. — If the performance of the contract be- comes impossible by sickness or similar disability, the con- tractor may recover a quantum meruit for what he did perform, as sickness is an excuse for nonperformance of personal obli- gations.^ But a contagious disease like small-pox is not the act of God in such a sense as to excuse a school district from lia- bility on a contract with a teacher, the performance of which the district has prevented by closing school, and the teacher may recover his salary for the time of suspension of school.^** § 592. Death of employer. — The death of the employer ex- cuses the employe from completing his contract where it is for personal services.^^ The death of one of the parties discharges the contract, or excuses its further performance. This is the case where the engagement is of a strictly personal character, requiring personal skill or capacity, as a contract to write a book for a publisher, or a contract by a physician to cure a particular disease, and the like. But the death of one of two joint contractors who has agreed to employ a party, does not discharge the survivor from the obligation of the contract,^ because the joint contractor has as- sumed the responsibility as a joint promisor; and neither the insolvency nor the death of his copromisor will discharge the contract, or release him from the obligation he has assumed.^* 8. Werner v. Humphreys, 2 Man. 10. Dewey v. School Dist., 43 & Gr. 853; Smith v. Coal Co., 83 Mich. 480, 5 N. 646, 38 Am. Rep. 111. 498; Hawkins v. Ball, 18 B. 200 and note; Carthage v. Gray, 10 Mon. (Ky.) 816, 68 Am. Dec. 755 Ind. App. 428, 37 N. E. 1059. and note; Siler v. Gray, 86 N. Car. 11. Yerrington v. Green, 7 R. I. 566; White v. Allen, 133 Mass. 423. 589, 84 Am. Dec. 578. 9. Lakeman v. Pollard, 43 Me. 12. Martin v. Hunt, 1 Allen 463. See, also, Harrington v. Iron (Mass.), 418. Works, 119 Mass. 82; Sickles v. 13. Martin v. Hunt, 1 Allen United States, 1 Ct. CI. 214. (Mass.), 418. 660 CHAPTER XX. Rescission of Contract. ARTICLE I. Eight to Rescind. Section 593. Executed Contract. 594. Notice and Acceptance. 595. Right to Rescind. 596. Time to Rescind. 597. Notice to Rescind. 598. Rescission in Part. 599. Recovering Back Consideration Paid. 600. Affirmance. 601. Sealed Contracts — To Recover Money Paid. § 593. Executed contracts. — It is only executory contracts that can be rescinded. And when a contract is executed an at- tempt to rescind will he futile, as there can be nothing to re- scind.-^ Thus, in case there is an absolute sale, proved in the usual manner, and an acknowledgment of an executed delivery of property to vendee, the contract is executed and not executory, and cannot then be rescinded.^ And so after goods are sold, and remain in the warehouse of the vendor who receives rent for storage of them, the acceptance of the warehouse rent is a complete transfer of the goods to the vendee ; such is an exe- cuted delivery by the vendor to the vendee, and the transitus is at an end.^ A reversal of what has been executed in such case can only be effected by the substitution of a new agreement with a consideration ; it can be effected only by a new contract.* 1. Chapman v. Searle, 3 Pick. 3. Hurry v. Mangles, 1 Camp. (Mass.) 38; Quincy v. Tilton, 5 452; Noble v. Adams, 7 Taunt. 59; Me. 277. Barrett v. Goddard, 3 Mason, C. C. 2. Chapman v. Searle, 3 Pick. 107. (Mass.) 38. 4. Quincy v. Tilton, 5 Me. 277. 661 § 594 TERMINATION OF CONTEACTS. Ch. 20 § 594. Notice and acceptance — Rescission of contract. — By one line of authorities, where one party to the contract declares that he will not perform his part on the day fixed and so stands until the time, the other may then sue ; that is, he cannot sue until the day fixed has arrived and he tenders performance.^ The law now in England is that a positive, absolute refusal by one party to carry out the contract, is in itself an immediate, complete breach of it on his part, and dispenses with the for- mality of tendering performance by the other party, and gives the immediate right of action before the day fixed.^ And the Supreme Court of the United States holds, that an unqualified and positive refusal to perform a contract, though the perform- ance thereof is not yet due, may, if the renunciation goes to the whole contract, be treated as a complete breach, which will entitle the injiired party to bring his action at once, and that the damages for breach of contract by renunciation thereof be- fore performance is due, are measured by what the injured party would have suffered by the continued breach of the other party, down to the time of complete performance, less any abatement by reason of circumstances of which he ought reasonably to have availed himself.^ This is the best doctrine and must find a following by all the courts not already bound by precedent to a different conclusion. The renunciation, to be effectual, must be an unequivocal one; and a refusal to treat the contract as a broken one by the promisee prevents his right to bring suit until time of performance. A mere assertion that the party will be unable or will refuse to perform his contract is not suf- ficient, and if the promisee afterwards continues to urge or de- 1. Ford V. Tiley, 6 Barn. & Cr. B. 678; Frost v. Knight, L. R. 325; Franchot v. Leach, 5 Cow. Exch. 111. (N. Y.) 506; Traver v. Halsted, 23 3. Roehm v. Horst, 178 U. S. 1, Wend. (N. Y.) 66; Shaw v. Ins. 20 S. Ct. 780, 84 Fed. Rep. 565, 62 Co., 69 N. Y. 286 ; Johnstone v. U. S. App. 520, 21 N. Cor. Rep., pp. Milling, 16 Q. B. U. 460; Mersey, 64, 92, 125, 156, where this ques- etc. Co. V. Naylor, 9 App. Cas. 434. tion is discussed. Chief Justice 2. Cort V. Railway Co., 6 Eng. Fuller, who rendered this decision, L. & Eq. 230; Hochster v. De La has exhaustively reviewed the Tour, 20 Eng. L. & Eq. 157, 2 E. & authorities. 6G2 Ch, 20 RESCISSION OF CONTRACT. § 594 mand a compliance with the contract, he has not put himself in a position to sue for a breach at once/ A renunciation of itself does not create a breach. There must be an adoption of the renunciation. There must be opportunity left to the prom- isee thereafter to insist upon performance if that shall prove more advantageous, or sue for damages for a breach if events shall render that cause the more promising afterwards. The renunciation must be so distinct that its purpose is manifest and it must be absolute and final. The acquiescence therein must be as certain, and this can be evidenced by suit at once for damages.^ The doctrine of an inticipatory breach of contract, is that a renunciation of a contract — that is, a total refusal to perform it, by one party, before the time for performance arrives, does not by itself amount to a breach of contract, but may be acted upon and adopted by the other party as a rescission of the con- tract as to give an immediate right of action. Such a renun- ciation does not of itself amount to a rescission of the contract, because one party cannot himself rescind it ; but the other party is then entitled to agTee to such renunciation, subject to the retention by him of his right to bring an action in respect of such wrongful rescission.^ 4. Smoot's Case, 15 Wall. (U. Messersmitb, 19 Iowa, 179; Howe S.) 36, 21 L. Ed. 107; Dingley v. v. Conduitt, 76 Ind. 598; Piatt v. Oler, 117 U. S. 490, 29 L. Ed. 984, Brand, 26 Mich. 173; Davis v. Fur- 6 S. Ct. 850; Roehm v. Horst, 178 iiiture Co., 41 W. Va. 717, 24 S. E. U. S. 1, 20 S. Ct. 780, 44 L. Ed. 630; Wells v. Hartford Manilla 953; Johnstone v. Willing, L. R. Co. (N. J.) 55 A. 599. Compare 10 Q. B. 460; Avery v. Bowden, 5 Daniels v. Newton, 114 Mass. 530, E. & B. 714; Wells v. Hartford 19 Am. Rep. 384; Stanford v. Mc- Manilla Co. (N. J.J, 55 A'. 599. Gill, 6 N. Dak. 536, 72 N. W. 938, 5. Windmuller v. Pope, 107 N. 38 L. R. A. 760. Y. 674, 14 N. E. 608; Gray v. 6. Johnstone v. Willing, L. R. Green, 9 Hun (N. Y.), 334; Zuck 16Q. B. 460; Roehm v. Horst, 178 v. McClure, 98 Pa. St. 541; Roeb- U. S. 1, 20 S. Ct. 780, 44 L. Ed. ling Sons Co. v. Fence Co., 130 111. 953; Wells v. Hartford Manila Co. 660, 22 N. E. 518; Crabtree v. (N. J.), 55 A. 599. GG3 § 595 TERMINATION OF CONTEACTS. Ch. 20 § 595- Right to rescind. — It is not essential to the right of a party to a contract to rescind it that its violation by the other party was wilful.^ On the failure of consideration for a contract of sale on which the purchaser has advanced money, the other party may be re- quired to pay back the price.^ If one fails to perform the con- dition of the contract, the other may rescind,^ or if he disquali- fies himself to perform, the other may rescind f so if he refuses to sign a written agreement as agreed to in the oral contract the other may rescind;^ but every shortcoming of a party is not a ground for rescission by the other.® The breach to justify a rescission must be of a dependent covenant, or conduct which evinces an intention no longer to be bound by the contract.'^ A grantee who had agreed to support the grantor during life in consideration of the conveyance of certain property will not be discharged from his obligation by the bringing a suit to set aside the conveyance and recovering back the property, where the suit has been abandoned and dismissed without trial, and the grantee can not be disturbed in the possession or enjoyment of the property.* When one party to an entire executory contract has failed to perform it on his part, and the other party is not in default, and in a condition to rescind, he may abandon the contract.' There may be cases where the parties cannot be placed in statu quo when the right to rescind cannot be exercised, or where 1. Bacon v. Green, 36 Fla. 325, 7. Freeth v. Burr, L. R. 9 C. P. 18 S. E. 870. 208. 2. Flandrow v. Hammond, 148 8. Tuttle v. Burgett, 53 Ohio, N. Y. 129, 42 N. E. 511. 498, 42 N. E. 427, 30 L. R. A. 214, 3. Anderson v. Haskell, 45 Iowa, 53 Am. St. Rep. 649. 45 ; Reed v. Golden, 26 Kan. 500. 9. Bacon v. Green, 36 Fla. 325, 4. Warren v. Richmond, 53 III. 18 S. E. 870; Brown v. Harris, 2 62; Little v. Thurston, 58 Me. 86. Gray (Mass.), 359; Giles v. Ed- 5. Gullich V. Alford. 61 Miss. wards, 7 Term R. 181; Webster v. 224, Enfield, 5 Gilm. (111.) 298; Evans 6. Weintz v. Hafner, 78 HI. 27 ; v. Givens, 22 Fla. 476. Franklin v. Miller, 4 Ad. & El. 599. 664 Ch. 20 RESCISSION OF CONTRACT. §§ 595-59Y one party to a contract has received benefits thereunder which he cannot retain and rescind/^ A breach by one party which will give the other a right to rescind, need not necessarily be such as will sustain an action for damages.^^ § 596. Time to rescind. — An executory contract that con- tains no stipulation for its rescission and that has not been in- duced by fraud, may, in general, be rescinded by one party only when the other expressly refuses to perform, or has ren- dered himself incapable of performing it. More delay in the execution of a contract whose terms will be satisfied by per- formance within a reasonable time does not of itself entitle the other party to rescind. To have that effect, the implication arising from the non-performance of the contract must be in- consistent with its being still in force.'^ Where the facts are not disputed, the question of what is a reasonable time in which to rescind a contract is a question for the court to decide f and so the court may instruct the jury that on the undisputed facts a given time is or is not reasonable.' The facts of each particular case will control as to the reason- ableness of time to rescind ;"* or the contract itself may provide the method, when it must be followed.^ § 597. Notice to rescind. — ^When a party rescinds a contract he must notify the other party.^ And the notice should be 10. Bacon v. Green, 36 Fla. 325, (Mass.) 546; Bacon v. Green, 36 18 S. E. 870. Fla. 325, 18 S. E. 870. 11. Wright V. Haskell, 45 Me. 4. Grymer v. Sanders, 93 U. S. 489 ; Gatlin v. Wilcox, 26 Ark. 309 ; 55 ; Carney v. Newberry, 24 111. ToAvnsend v. Hurst, 37 Miss. 679; 203; Memphis, etc. Railroad Co. v. Hime v. Klasey, 9 111. App. 190. Neighbors, 51 Miss. 412. 1. McTague v. Association, 57 5. McKay v. Carrington, 1 Mc- N. J. L. 427, 31 A. 727; Fox v. Lean, C. C. 50. Tabel, 66 Conn. 397, 34 A. 101. 1. Carney v. Newberry, 24 111. 2. Bacon v. Green, 36 Fla. 325, 203; Henderson v. Hicks, 58 Cal. 18 S. E. 870; Gordon v. Simonton, 364; Mullin v. Bloomer, 11 Iowa, 10 Fla. 179; Holbrook v. Burt, 22 360; Parmlee v. Adolph, 28 Ohio Pick. (Mass.) 546. St. 10. 3. Holbrook v. Burt, 22 Pick. 665 §§ 597, 598 TERMINATION OF CONTRACTS. Ch. 20 served on a week day; though if the statute does not make it illegal to serve it on Sunday, it may be served on that day.^ It is not always necessary to give an express notice of re- scission, for acts may indicate the intention to rescind. In some case bringing a suit to recover back money paid, when fol- lowed to its termination, is sufficient notice f but a judicial pro- ceeding is not always a sufficient notice, where it is dismissed and the defendant has received no damages.* And so when a lessor under a power contained in a lease, gives notice to the lessee of his intention to cancel the lease and take possession at the end of the time specified according to law, for non-pay- ment of rent, such notice is not an offer which may be accept- ed by the tenant and thus made irrevocable, but the lessor may withdraw it and sue for the rest.^ And so a party who stipu- lated under seal to pay a certain sum annually to another so long as the latter would refrain from erecting on his land buildings that might obstruct the former's windows, is bound and cannot rescind by giving notice.® § 598. Rescission in part. — A contract cannot be rescinded in part and ratified in part against the wishes of the other party. It is the duty of the injured party in such case to re- scind the contract as a whole or not at all.'' And so where a party makes several contracts with another, he cannot claim the benefit of such as are profitable and repudiate those that are unprofitable, when they are of the same kind.* 2. Merritt v. Robinson, 35 Ark. Patrick v. Railroad Co., 93 N. Car. 483; Benedict v. Bachelder, 24 422. Mich. 425, 9 Am. Rep. 130; Pence 6. First Presb. Church v. Bank, V. Langdon, 99 U. S. 578. 57 N. J. L. 27, 31 A. 727. 3. Graham v. Hollaway, 44 111. 7. Raymond v. Bearnard, 12 385; Moore v. Rogers, 19 III. 347; Johns. (N. Y.) 274, 7 Am. Dec. Howard V. Hunt, 57 N. H. 467. 317; Hendricks v. Goodrich, 15 4. Tuttle V. Burgett, 53 Ohio, Wis. 679; Bainter v. Fults, 15 498, 42 N. E. 427, 30 L. R. A. 214, Kan. 323; Higham v. Harris, 108 53 Am. St. Rep. 649. Ind. 246, 8 N. E. 255 ; Baum Iron 5. Warehouse Co. v. Duke, 116 Co. v. Burg, 47 Neb. 21, 66 N. W. N. Car. 202, 21 S. E. 178. See, also, 8; Wolf v. Dietzseh, 75 111. 205. 8. Wolcott V. Heath, 78 111. 433. 666 Cb. 20 RESCISSION OF CONTRACT. §§ 598, 599 The rescission must be for tbe whole contract and not for a part.' But if tbe parties agree, part of tbe contract may be rescinded and another part repudiated.^" § 599' Recovering back consideration paid. — When one party to an entire executory contract has failed to perform on bis part, and the other party is not in default, and in a condi- tion to rescind, be may abandon the contract and bring an action of assumpsit to recover back what he has paid there- under, whenever assumpsit will lie independent of the con- tract.^ However, one who is in fault and has abandoned bis contract without just cause, cannot recover.^ A party cannot rescind a contract and at the same time re- tain tbe consideration he has received. He must place the other party in as good a condition as he was before the con- tract was made by an offer to return what he has received.^ Tbe doctrine is well established that no contract can be re- scinded unless both parties can be restored to the condition in which they were before the contract was made. If, therefore, one of tbe parties has derived an advantage from the perform- ance of the contract, be cannot hold this and consider tbe contract as rescinded, but must do all the contract obliges him to do.'^ 9. Raymond v. Bearnard, 12 2. Plummer v. Bucknam, 55 Me. Johns. (N. Y.) 274, 7 Am. Dec. 105; Robinson v. Raynor, 28 N. Y. 317. 494; Haslack v. Mayers, 2 Dutch. 10. Borum v. Garland, 9 Ala. (N. J.) 284; Clark v. School Dist., 452. 29 Vt. 217. 1. Nash V. Towne, 5 Wall. (U. 3. Duncan v. Humphries, 58 111. S.) 689; Bacon v. Green, 36 Fla. App. 440; Wolf v. Deitzsch, 75 111. 325, 18 S. E. 870; Browoi v. Har- 205; Merchants, etc. Ins. Co. v. ris, 2 Gray (Mass.), 359; Giles v. McLain, 48 La. Ann. 109, 20 So. Edwards, 7 Term R. 181; Evans v. 278; Gassett v. Glazier, 165 Mass. Givar, 22 Fla. 476; Fitzgerald v. 473, 43 N. E. 193; Rydon v. Wal- Allen, 128 Mass. 232; Warren v. cott, 141 111. 649, 31 N. E. 158; Tyler, 81 111. 15; Chamberlin v. Doane v. Lockwood, 115 111. 490, 4 Scott, 33 Vt. 80; Browm v. Ma- N. E. 506. horin, 39 N. H. 156 ; Drew v. Clag- 4. Hunt v. Silk, 5 East, 449 ; gett, 39 N. H. 431; Feay v. De- Poor v. Woodward, 25 Vt. 445; camp, 15 Serg. & R. (Pa.) 227. Miner v. Bradley, 22 Pick. (Mass.) 667 I§ 600,601 TEKMINATION OF CONTKACTS. Cll. 20 § 600. Affirmance. — Where a party has a right to rescind, he must announce his purpose and adhere to it. If he is silent and continues to treat the contract as binding, he will be held to have waived the objection, and will be bound by the con- tract. If he does anything in recognition of its continued exis- tence he is bound by it.^ But a party cannot rescind because he has failed to exer- cise due diligence in making the contract.^ So the lessee of a mill, after remaining in possession for a year, cannot rescind the lease for fraudulent representations as to the capacity and condition of the mill.^ § 601. Sealed contracts — To recover money paid. — In an action of assumpsit to recover back money paid under a con- tract alleged to have been violated by the parties thereto, sued as defendants, and rescinded by the plaintiff, the other party to it, the form of action will not be affected in any way by the consideration, whether the contract is under seal or not as to lall the parties executing it, as the suit is not one on the con- tract, but in assumpsit to recover money received.* 458; Weeks v. Robie, 42 N. H. 316; Young V. Stevens, 48 N. H. 133, 97 Am. Dec. 592; Desha v. Robinson, 17 Ark. 228; Burge v. Cedar, etc. Railroad Co., 32 Iowa, 101. 1. Thomas v. Bartow, 48 N. Y. 200; Flint v. Wood, 9 Hare, 622; Jennings v. Broughton, 5 DeG. M. & G. 139; Lloyd v. Brewster, 4 Paige (N. Y.), 537, 27 Am. Dec. 88; Campbell v. Fleming, 1 Ad. & El. 41 ; Diman v. Railroad Co., 5 R. I. 130; Grymes v. Sanders, 93 U. S. 55 ; Wilson v. Irish, 62 Iowa, 260, 17 N. 511; Fitzpatrick v. Woodruff, 96 N. Y. 561; Pratt v. Philbrook, 41 Me. 132; Akerly v. Vilas, 21 Wis. 88; Crane v. Kildorf, 91 111. 567. 2. Seton v. Slade, 7 Ves. 269; Mauser v. Davis, 6 Ves. 678; At- wood V. Small, 6 CI. & F. 338; Gar- rett V. Burleson, 25 Tex. 44; Lamb V. Harris, 8 Ga. 546. 3. Richardson v. Horn, 8 Houst. (Del.) 26. 4. Bacon v. Green, 36 Fla. 325, 18 S. E. 870. 668 Ch. 20 RESCISSION OF CONTRACT. §§ 602, 603 ARTICLE II. Work and Labor. Section 602. Wrongful Discharge of Employe. 603. Constructive Service. 604. Services to be Performed in the Future. 605. Duty of Employe to Seek Other Work. 606. Offer to Render Service. 607. Mode of Rescission by Employer. 608. Employing Another to Work on Personalty. 609. Employing Another to Affix to Real Estate a Machine. 610. Damages Recoverable. 611. After Notice of Rescission — Duty of the Employe. § 6o2. Wrongful discharge of employe. — A servant wrong- fully discharged has but two remedies growing out of the wrongful act: 1. He may treat the contract of hiring as con- tinuing, though broken by the master, and may recover dam- ages for the breach.^ 2. He may rescind the contract, in which case he can sue on a quantum meruit, for services actually rendered.^ These remedies are independent of and additional to his right to sue for wages, for sums actually earned and due by the terms of the contract. § 603. Constructive service. — It has been held by a few cases, incorrectly however, that a servant wrongfully dis- charged has his election to sue for wages as they become due from time to time, or for damages. This doctrine that he can 1. Miller v. Goddard, 34 Me. 102, v. Ins. Co., 24 Wis. 630; Ricks v. 56 Am. Dec. 638; East Tennessee, Yates, 5 Ind. 115; Cbstigan v. Rail- etc. R. R. Co. V. Staub, 7 Lea road Co., 2 Denio (N. Y.), 609, 43 (Tenn.), 397; Howard v. Daly, 61 Am. Dec. 758 and note; Halloway N. Y. 362, 19 Am. Rep. 285. v. Talbot, 70 Ala. 389; Webster v. 2. Chamberlin v. Morgan, 68 Pa. Wade, 19 Cal. 291, 79 Am. Dec. St. 168; King v. Steiren, 44 Pa. St. 218; Britt v. Hays, 21 Ga. 157; 99, 84 Am. Dec. 419; Howard v. Pritchard v. Martin, 27 Miss. 305; Daly, 61 N. Y. 362, 19 Am. Rep. Emmons v. Elderton, 4 H. L. Cas. 285; McDaniel v. Parks, 19 Ark. 646; Dillon v. Anderson, 43 N. Y. 671; Isaacs v. Davis, 68 Ga. 169; 231; Hamilton v. McPherson, 28 Fuller V. Little, 61 111. 21; Baker X. Y. 76, 84 Am. Dec. 330. 669 § 603 TERMINATION OF CONTRACTS. Ch. 20 sue for wages is based upon construe uve service/ This doc- trine that a servant can sue from time to time for his vp^ages as thej would fall due, after his wrongful discharge, is opposed to the great mass of authorities. It holds that a person may remain idle, and not accept employment elsewhere, and that he cannot seek it. If a person discharged from service may re- cover wages, or treat the contract as still subsisting, then he must remain idle in order to be always ready to perform the service. The doctrine of constructive service is opposed to principle and to political economy, as it encourages idleness and gives compensation to men who fold their hands and de- cline service, equal to those who perform their stipulated work. Though the master has committed a wrong, the employe is not released from the rule that he should labor ; and no rule can be sound which gives him full wages while living in voluntary idleness. This view of constructive services has been discarded in later decisions and is not good law ; and now a servant wrong- fully discharged cannot recover wages as they become due from time to time;^ because if he sues and recovers his wages for past services, this ends his recovery for future time, and he cannot wait until another period has passed and then sue for that time ; the first suit for wages bars all other suits.^ 1. Thompson v. Wood, 1 Hilt. Tisdal, 1 Exeh. 295; Eldeiton v. (N. Y.) 96; Huntington v. Rail- Emmons, 6 C. B. 178; Goodman v. road Co., 33 How. Pr. (N. Y.) 416; Pocock, 15 Ad. & EL, N. S. 582; Fowler v. Armour, 24 Ala. 194; Whitaker v. Sandifer, 1 Duval Armfield v. Nash, 31 Miss. 361; (Ky.), 261; Chamberlin v. Mc- Gordon v. Brewster, 7 Wis. 355; Callister, 6 Dana (Ky.), 352; Booge V. Railroad Co., 33 Mo. 212, Clark v. Marsiglia, 1 Denio (N. 82 Am. Dec. 160; Gaudell v. Pou- Y.), 317, 43 Am. Dec. 670 and note; tigney, 4 Camp. 375; Collins v. Durkee v. Mott, 8 Barb. (X. Y.) Price, 4 Bing. 132. 423; Moody v. Leverich, 4 Daly 2. Archard v. Hornor, 3 Car. & (N. Y.), 801. P. 349; Smith v. Hayward, 7 Ad. 3. Keedy v. Long, 71 Md. 385, & El. 544; Aspdin v. Austin, 5 18 A. 707, 5 L. R. A. 759 and note. Ad. & EL, N. S. 671; Fewings v. 670 Ch. 20 RESCISSION OF CONTRACT. § 604 § 604. Services to be performed in the future. — It is now well settled that if a person enters into a contract for services, to commence at a future day, and before that time arrives does an act inconsistent with the continuance of the contract, an action may be immediately brought by the other party; and without averring performance, or readiness to perform.^ The law with reference to a contract to be performed at a future time, when the party bound to the performance an- noimces, prior to the time, his intention not to perform it is this: 1. The promisee, if he so elects, may treat the notice of intention as inoperative, and await the time when the con- tract is to be executed, and then hold the other party responsi- ble for all the consequences of non-performance; in this man- ner he keeps alive the contract for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his pre- vious repudiation of it, but also to take advantage of any super- vening circumstances which would justify him in declining to complete it. 2. The promisee may, if he so elects, treat the repudiation of the other party as a wrongful rescission, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time ; subject to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.^ 1. Hochster v. De La Tour, 2 El. 6 Bl. 678; Frost v. Knight, L. R. 7 Exch. Ill, reversing 5 Exch. 322; Roper V. Johnson, L. R.- 8 C. P. 167; Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516 and note; Christ V. Armour, 34 Barb. (N. Y.) 378; Howard v. Daly, 61 N. Y. 362. 19 Am. Rep. 285; Danube, etc. Co. V. Xenos, 13 C. B., N. S. 825; Wil- kinson V. Verity, L. R. 6 C. P. 206. Compare Philpotfs v. Evans, 5 Mees. & W. 475: Ripley v. Mc- Clure, 4 Exch. 359. Compare Dan- iels V. Newton, 114 Mass. 530, 19 Am. Rep. 384. 2. Frost V. Knight, 7 Exch. 111. 8ee, also, Roper v. Johnson, L. R. 8 C. P. 167; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 516 and note; Brown v. Mullin, L. R. 7 Exch. 323. 671 §§ 605, 606 TERMINATION OF CONTRACTS. Cll. 20 § 605. Duty of employe to seek other work. — After an em- ployee has been wrongfully discharged, his duty is to use reasonable care and diligence in entering into other employ- ment of the same kind, and thus to reduce the damages.^ It is the duty of a dismissed servant not to remain idle, and the employer may show, in mitigation of damages, that the em- ploye might have procured employment. Prima facie this em- ploye is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the discharging party to show either that the other has found employment elsewhere, or that other similar employment has been offered him and declined, or, at least, that such employment might have been found. The employe is not bound to show affirmatively, as a part of his case, that such employment was sought for and could not be found.^ § 606. Offer to render service. — After the employer has wrongfully rescinded the contract for labor, in order for the employe to recover, he must be ready and willing to comply with the contract at the time of the refusal to receive the labor.^ But it is not necessary for the employe to go through the naked form of offering to render the service.* Tender of performance is not necessary when there is wil- 1. Chamberlin v. Morgan, 68 Pa. Dec. 218; Byrd v. Boyd, 4 McCord St. 168; King v. Steiren, 44 Pa. St. (S. Car.), 246, 17 Am. Dec. 740; 99, 84 Am. Dec. 419; Jones v. Colburn v. Woodworth, 31 Barb. Jones, 2 Swan (Tenn.), 605; Ful- (N. Y.) 381; Bradshaw v. Branan, ler V. Little, 61 111. 21; Crescent 5 Rich. (S. Car.) 465; Emmons v. Manuf. Co. v. Manuf. Co., 100 Mo. Elderton, 4 H. L. Cas. 646; Dillon 325, 13 S. W. 503; Isaacs v. Davies, v. Anderson, 43 N. Y. 231; Hamil- 68 Ga. 169; Halloway v. Talbot, 70 ton v. McPherson, 28 N. Y. 76, 84 Ala. 389. Am. Dec. 330. 2. Costigan v. Railroad Co., 2 3. Peeters v. Opie, 2 Wm. Saund. Denio (N. Y.), 609, 43 Am. Dec. 352, note. 758 and note, 2 Greenl. on Evi. 261, 4. Wallis v. Warren, 4 Exch. a; Fuller V. Little, 61 111. 21; Prit- 361; Levy v. Herbert, 7 Taunt, chard v. Martin, 27 Miss. 3.05; Mc- 314; Carpenter v. Holcomb, 105 Daniel v. Parks, 19 Ark. 671; Bar- Mass. 284; Howard v. Daly, 61 N. ker V. Ins. Co., 24 Wis. 630; Web- Y. 362, 19 Am. Rep. 285. ster V. Wade, 19 Cal. 291, 79 Am. 672 CJh. 20 RESCISSION or conteact, §§ 606-608 ingness and ability to perform, and actual performance has been prevented or expressly waived by the parties to whom performance is due.^ § 607. Mode of rescission by employer. — JSTo precise form of words is necessary by the employer to rescind the contract for services. If the obligation of the contract is created, a denial of its existence is equivalent to a refusal to allow the employe to go on with the labor. The employer may reject the services indirectly as well as directly. The sole inquiry is, has the employer done an act inconsistent with the supposi- tion that the services continue. Thus, if a man promises to marry a woman on a future day, and before that time marries another, he has rescinded tlie contract with the first woman, because the act done was inconsistent with the contract rela- tions of the parties.^ So an agreement to marry "in the fall" may be broken by the promisor announcing to the woman in October that he will not perform his contract, and she may com- mence her action immediately.^ And this rule is universal and applies to all contracts to be performed at a future day,' where there are mutual stipulations. § 608. Employing another to work on personalty. — ^Where a person renounces his contract for work to be done on per- sonal property at a certain price, the laborer cannot go on and do the work, and then sue for the whole price. He has no right to proceed with the work after such rescission, but must stop, and sue for damages.^ The party employed cannot per- sist in working, though he is entitled to the damages conse- 5. Franchot v. Leach, 5 Cow. (N. 2. Burtis v. Thompson, 42 N. Y. Y.) 506; Cort v. Railway Co., 17 246, 1 Am. Rep. 516 and note. Ad. & El., N. S. 127. See, also, 3. Hochster v. De La Tour, 2 El. Nelson v. Plimpton, etc. Co., 55 N. & Bl. 678; Howard v. Daly, 61 N. Y. 480; Howard v. Daly, 61 N. Y. Y. 362, 19 Am. Rep. 285. 362, 19 Am. Rep. 285. 4. Lord v. Thomas, 64 N. Y. 107 ; 1. Short V. Stone, 8 Ad. & El., Gibbons v. Rente, 51 Minn. 499. 53 N. S. 358. See, also, Lovelock v. N. W. 756, 22 L. R. A. 80 and note; Franklyn, 8 Ad. & El., N. S. 371. Heaver v. Lanahan, 74 Md. 493, 22 673 §§ 608-610 TERMIIfATION OF CONTEACTS. Ch. 20 quent upon his disappointment. So where one has given pic- tures to another to be repaired at a price agreed upon, and the former countermands his direction and forbids further execu- tion of the work, after the latter has commenced work, the work must cease and the workman may recover a just recom- pense for such injury as the party employed has received on account of the breach of the agreement.^ The party employed has no right, after rescission, to proceed with the work. In all such cases the just claims of the party employed are satisfied when he is fully recompensed for his past perform- ance and indemnified for his loss in respect to the part left un- executed ; and to persist to complete the work is not consistent with good faith towards the employer.® § 609. Employing another to affix to real estate a machine. — And so where one is employed to furnish materials and per- form labor upon them for the other party to improve his realty, and then the contract is rescinded by the employer, the em- ploye cannot recover any part of the contract price as it is not devisible.^ But he may recover what he has lost thereby or the damages sustained, but he cannot go on with the work after the § 610. Damages recoverable. — It has been laid down that in an action brought upon an agreement, full performance of which has been prevented by the defendant, the damages of ^the plaintiff are such profits as he would have made had the A. 263; Collyer v. Moulton, 9 R. I. 1. Inehbald v. Western, 17 C. 90, 98 Am. Dec. 370; Smith v. B., N. S. 733; Blanch v. Cochran, O'Donnell, 8 Lea (Tenn.), 468; 8 Bing. 14. Eckeurode v. Chemical Co., 55 Md. 2. Hosmer v. Wilson, 7 Mich. 51; Zuck V. McClure, 98 Pa. St. 294, 74 Am. Dec. 716; Butler v. 541. Butler, 77 N. Y. 472, 33 Am. Rep. 5. Clark v. Marsiglia, 1 Denio 648; Smith v. Wheeler, 7 Oreg. (N. Y.), 317, 13 Am. Dec. 670 and 49, 33 Am. Dec. 698 and note; note. Marsh v. McPherson, 105 U. S. 6. Clark v. Marsiglia, 1 Denio 709. (N. Y.), 317, 319, 43 Am. Dec. 670 and note. 674 Ck 20 RESCISSION OF CONTEACT. ;§ 610,611 contract been fnllv carried out.^ But in many cases materials for the performance of the contract may have been furnished, and labor expended in good faith before notice to stop has been given, and the materials, by the labor put upon them for a par- ticular purpose, may be depreciated in value for general pur- poses. So the plaintiff cannot be fully indemnified in such case without he is repaiid for such labor and for any loss sus- tained upon such materials.^ § 6ii. After notice of rescission— Duty of the employe. — It is the duty of the employe, as soon as due notice is given, to act in such a manner as to save the defendant from further damage, so far as it was in his power, even to the performance of affirmative action on his part.^ And notice given to an agent who is authorized to stand in the place of and represents the plaintiff in his business, is sufficient, and after such notice to the agent, his principal must cease work and save the de- fendant from further damages.* 1. Clark V. Mayor, 4 N. Y. 338, 53 Am. Dec. 379; Railroad Co. v. Howard, 13 How. (U. S.) 307. 2. Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Dillon v. An- derson, 43 N. Y. 231. 3. Hamilton v. McPEerson, 28 N. Y. 72, 84 Am. Dec. 330; Strauss V. Meertief, 64 Ala. 299, 38 Am. Rep. 8; Chamberlin v. Morgan, 68 Pa. St. 168 ; Dillon v. Anderson, 43 N. Y. 231. 4. Dillon V. Anderson, 43 N. Y. 231. 675 § 612 TERMINATION OF CONTEACTS. Ch. 20 ARTICLE III. Rescission C'onteolled by Condition Subse;quent. Section 612. Selling by Sample. 613. Option to Purchase. 614. Contract of Hiring — Employe Guarantees Satisfaction. 615. Contracts of Common Carriers. 616. Act of God that will Excuse a Common Carrier. 617. Shipment of Live Stock. 618. Hiring Contracts — Implication of Discharge. 619. Reservation of Wages, Payable at Certain Interval '. 620. Extra Services. 621. Reservation of Right to Terminate. 622. No Limitation as to Term of Hiring. 623. Notice of Termination — Reservation. § 6i2. Selling by sample. — Where there is an executory con- tract for the sale of goods warranted to be of a particular quan- tity or description, they must conform to the warranty or the vendee is not bound to receive or accept them.^ And a sale by sample implies a warranty that the bulk of the article shall cor- respond in quality with the article exhibited.^ If the article does not correspond with the warranty when delivered the vendee is not merely justified in not receiving it, but he may receive it for the purpose of examination, and if found not to be of the quality or description warranted, or, what is the same thing, not to correspond with the sample, he may return it to the vendor, the examination and return being within a reasonable time.^ And the burden of proof as to whether they correspond with the sample or not, in a suit brought by the vendor for the price, is on the vendor and not on the vendee.* 1. Wright V. Barnes, 14 Conn. Motor Co. v. Frisbie, 66 Conn. 67, 518. 33 A. 604. 2. Bradford v. Manly, 13 Mass. 3. Street v. Blay, 2 Barn. & Ad. 139, 7 Am. Dee. 122 and note; 456. Waring v. Mason, 18 Wend. (N. 4. Merriman v. Chapman, 32 Y.) 425; Merriman v. Chapman, Conn. 140. 32 Conn. 146; C. and C. Electric 676 Ch. 20 RESCISSION OF CONTRACT. §§ 612,613 The vendee will have a reasonable time to examine and to re- turn, and a failure to make the examination within a reason- able time may preclude him from offering the property back, rescinding the sale, and avoiding payment on that ground ; but in case he keeps them he may rely upon the breach of the war- ranty and receive damages.^ The right to return chattels sold by sample as not being equal to the sample, is a right to return all or none.^ § 613. Option to purchase. — An option to purchase if the vendee should so decide is essentially different from an option to return the chattel if he should not like it. In one case the title will not pass until the option is determined; in the other the property passes at once subject to the right to rescind and. return.^ Where the buyer takes property upon trial he is the sole judge of its merits. It is a sale at his option and he must comply with his part of the agreement. If he does not return it within a reasonable time, the vendor may treat the transac- tion as an absolute sale.^ And in case of depreciation of the property, nobody being at fault, the person who is eventually to have the title must bear the loss.^ But if the purchaser injures the property while in his possession he must bear the loss.^ What is a reasonable time in which to return the chattel, when the contract is silent 5. Underwood v. Wolf, 131 111 425, 23 N. E. 598, 19 Am. St. Rep 40; Douglas Ax Maiiuf. Co. v Gardner, 10 Cush. (Mass.) 88; Me Cormick v. Danville, 36 Iowa, 645 Aultman v. Flinn, 34 Iowa, 272 Mandel v. Butler, 21 Minn. 397 Sugworth V. Leffel, 76 Pa. St. 477 Fielder v. Starkin, 1 H. Bl. 17 Poulton V. Lattimore, 9 Barn. & Cr. 359; Pateshall v. Tranter, i Ad. & El. 103. 6. Telford v. Albro, 60 111. App 359; Harsfield v. Converse, 105 111. 534. 1. Hunt V. Wyman, 100 Mass. 198. 2. Dewey v. Erie, 14 Pa. St. 211, 53 Am. Dec. 533; Spickler v. Marsh, 36 Md. 222; Kimball v. Vroman, 35 Mich. 310, 24 Am. Rep. 558; Bushwell v. Bicknell, 17 Me. 344, 35 Am. Dec. 262. 3. Head v. Tattersall, L. R. 7 Exeh. 7. 4. Ray v. Thompson, 12 Gush. (Mass.) 281, 59 Am. Dec. 187. 67Y §§ 613, 614 TERMINATION OF CONTRACTS. Ch. 20 as to this matter, depends upon the character of the property and all the circumstances connected with the case.^ § 614. Contract of hiring — Employe guarantees satisfaction. ' — ^A stipulation is often included in a contract that the em- ployee shall give satisfaction to the employer, and in case he does not the latter may discharge the former. The cases are not harmonious as to the question whether the employer may discharge the employee without judicial determination as to right of dismissal. It is generally held that whenever the con- tract is to gratify taste, serve personal convenience or satisfy individual preference in regard to the employer, tliat is, when- ever the feelings, taste, sensibilities or judgment of the prom- isor are involved, he has the absolute right to decide and his decision cannot be reviewed.^ But whenever the contract in- volves some definite purpose or end, of the performance of which others could judge just as well as the parties can, and which involves no consideration strictly personal, the stipuation that it shall be done to the satisfaction of the party has been generally held not to be controlling. In such case all the promisor undertakes to do is that he will reasonably and fairly judge, and of course his decision is subject to review.^ A contract employing a servant not to do a fixed and definite 5. Washington v. Johnson, 7 115G, 18 L. R. A. 644; Koehler v. Humph. (Tenn.) 468; Hickman v. Buhl, 94 Mich. 496, 54 N. W. 157; Shimp, 109 Pa. (St. 16. Allen v. Compress Co., 101 Ala. 1. Duplex Saf. Boiler Co. v. 575, 14 So. 362; Wood Reap. & Garden, 101 N. Y. 387, 4 N. E. Mow. Mach. Co. v. Smith, 50 Mich. 749, 54 Am. Rep. 709 and note; 565, 15 N. 906, 45 Am. Rep. 57. Gibson y. Carnage, 39 Mich. 49, 33 2. Falliard v. Wallace, 2 Johns. Am. Rep. 351 and note; Holfman (N. Y. ) 395; Burns v. Munger, 45 V. Gallaher, 6 Daly (N. Y.), 42; Hun (N. Y.), 75; Brooklyn v. Brown v. Foster, 113 Mass. 136, 18 Railroad Co., 47 N. Y. 475, 7 Am. Am. Rep. 463; Zaleski v. Clark, 44 Rep. 469; Grinnell v. Kiralfy, 55 Conn. 218, 26 Am. Rep. 446; Mc- Hun, 422, 8 N. Y. S. 623; Doll v. Carren v. McNulty, 7 Gray Noble, 116 N. Y. 230, 22 N. E. (Mass.), 139; Hart v. Hart, 22 406, 5 L. R. A. 554, 15 Am. St. Rep. Barb. (N. Y.) 606; Frary v. Rub- 398. ber Co., 52 Minn. 264, 53 N. \V. 6Y8 Ch. 20 RESCISSION OF CONTRACT, §§ 614, 615 work but to render personal services, general in their nature, and especially where the employment involves consideration of fitness, business capacity, integrity, trust, and confidence, the employer's decision of discharge is final if he is not satisfied.^ In another class of cases there must be an actual cause. Thus, where a party purchases milk pans, and the stipulation was that the purchaser was to pay for them if satisfied, the purchaser has no right to say witliout cause that he was dissatisfied and would not pay for the pans, because his dissatisfaction must be actual, not feigned, real, not merely pretended.^ And where the grantee in a deed judges as to the title of the land, whether good or not, he cannot make an arbitrary decision not founded on any reasonable ground.^ § 615. Contracts of common carriers. — In the absence of special contract there is no absolute duty resting on a common carrier to deliver goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the track or disable the rolling stock or interpose irre- sistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reason- able efl^ort and diligence to overcome the obstacle thus inter- posed, and to forward the goods to their destination.^ A com- mon carrier is not liable for losses caused by the act of God, by the public enemy, by the irJierent defect, quality or vice of the thing carried, by the seizure of goods or chattels in its hands, under legal process, by some act or omission of the owner of the 3. Frary v. Rubber Co., 52 Minn. 1. Wibeit v. Railroad Co., 12 N. 264, 53 N. W. 1156, 18 L. R. A. Y. 245; Blackstock v. Railroad Co., 644. 20 N. Y. 48, 75 Am. Dec. 372; 4. Dagget v. Johnson, 49 Vt. 345. Thayer v. Burchard, 99 Mass. 521 ; See, also, Anvil Min. Co. v. Humble, Geismer v. Railroad Co., 102 N. Y. 153 U. S. 540, 14 S. Ct. 876. 5r.3, 7 N. E. 828, 55 Am. Rep. 837. 5. Falliard v. Wallace, 2 Joluis. (N. Y.) 395. 679 §§ 015, 616 TERMINATION OF CONTRACTS. Ch. 20 goods. ^ So when a common carrier is prevented by mob vio- lence which it cannot by reasonable efforts overcome, a delay in the delivery of goods may be excused f and it is not liable for the act of God when it uses due diligence.* Some courts construe the ''act of God" as synonymous with " inevitable accident," or " unavoidable accident ; "^ but this construction is not accepted by all the courts, as such accidents may be caused by human agency,^ which is excluded from the act of God.'^ A shipowner may be released by the occurrence of an ex- cepted risk provided he uses due diligence.* § 6x6. Act of God that will excuse a common carrier. — The act of God which will excuse a common carrier from perform- ing his contract, must be the proximate, not merely the remote, cause of the loss or injury to the property carried.^ Common carriers are not bound to provide against unusual or extraor- dinary floods, such as have never been known, and which could not have reasonably been foreseen by competent and skilled per- 2. Parsons v. Monteath, 13 Barb. 5. Crosby v. Fitch, 12 Conn. 410, (N. Y.) 353; Merritt v. Earle, 31 31 Am. Dec. 745; Blythe v. Rail- Barb. (N. Y.) 38, 29 X. Y. 115; road Co., 15 Colo. 333, 25 P. 702, Hall V. Kenfro, 3 Met. (Ky.) 51; 11 L. R. A. 615 and note, 22 Am. Cragin v. Railroad Co., 51 N. Y. St. Rep. 403; Neal v. Saunderson, 61, 10 Am. Rep. 559; Storer v. 2 Sm. & M. (Miss.) 572. Gordon, 3 Maule & S. 308; Norris 6. Central Line v. Lowe, 50 Ga. V. Railroad Co., 23 Fla. 182, 1 So. 509. 475, 11 Am. St. Rep. 355 and note; 7. Fish v. Chapman, 2 Ga. 349, Southern Express Co. v. Glenn, 16 46 Am. Dec. 393. Lea (Tenn.), 472, 1 S. W. 102. 8. Geipel v. Smith, L. R. 7 Q. B. 3. Pittsburg, etc. R. R. Co. v. 404. Hogen, 84 111. 36, 25 Am. Rep. 422 ; 9. New Brunswick Steamboat Pittsburg, etc. R. R. Co. v. Hallo- Co. v. Tiers, 4 Zab. (N. J.) 697, 64 well, 65 Ind. 188; Geismer v. Rail- Am. Dec. 394; Backhouse v. Sneed, road Co., 102 N. Y. 503, 7 N. E. 1 Murphy (N. Car.), 173; Railroad 828, 55 Am. Rep. 837; Haas v. Co. v. Reeves, 10 Wall. (U. S.) Railroad Co., 81 Ga. 792, 7 N. E. 176; Converse v. Brainerd, 27 Conn. 629. 607; Express Co. v. Jackson, 92 4. Black V. Railroad Co., 30 Neb. Tenn. 326, 21 S. W. 666; Morrison 197, 46 N. W. 197; Nugent v. v. Davis, 20 Pa. St. 171, 57 Am. Smith, 1 C. P. Div. 441. Dec. 695 and note: Lang v. Rail- 680 oil. 20 RESCISSION OF CONTRACT. §§ 616, 617 sons.^" So an unprecedented storm may excuse a connnon car- rier in delivering a shipment. ^^ § 617. Shipment of live stock. — A common carrier which undertakes to transport live stock for hire becomes chargeable with the duties and obligations which are incident to that rela- tion.^ But the carrier is not an insurer of the property as re^ spects injury which it may suffer from all causes. A common, carrier is not an insurer in respect to any injury unavoidably resulting from the essential nature of the property itself, such as the natural decay of fruit, although it must use reasonable care for its preservation. The common-law liability of the car- rier is subject to some modifications arising from the nature and propensities of the animals, and their capacity for inflict- ing injuries upon themselves and upon each other, when live stock is the subject of transportation.^ In the absence of a spe- cial agreement, the carrier is responsible for any injury which can be prevented by foresight, vigilance and care, although arising from the conduct of the animals.^ In case of injury to live animals which may be caused by each other, or by inherent liability to sickness and death or self-inflicted injury in case of road Co., 154 Pa. St. 342, 26 A. Rep. 19; St. Louis, etc. R. R. Co. 370, 20 L. R. A. 360, 35 Am. St. v. Dorman, 72 111. 504; Powell v. Rep. 846. Raihoad Co., 32 Pa. St. 414, 75 10. Columbus, etc. R. R. Co. v. Am. Dec. 564. Bridges, 80 Ala. 462, 5 So. 864, 11 2. Moulton v. Railroad Co., 31 Am. St. Rep. 58 and note; Coosa Minn. 85, 16 N. 497, 47 Am. Rep. River Steamboat v. Barclay, 30 781 ; Lindsley v. Railroad Co., 36 Ala. 126; Smith v. Railroad Co., Minn. 539, 33 N. W. 7, 1 Am. St. 91 Ala. 455, 8 S. W. 754, 24 Am. Rep. 692; Coupland v. Railroad St. Rep. 829, 11 L. R. A. 619. Co., 61 Conn. 531, 23 A. 870; 11. Black V. Railroad Co., 30 Neb. Selby v. Railroad Co., 113 N. Car. 197, 46 N. W. 197. 588, 18 S. E. 88, 37 Am. St. Rep. 1. Kimball v. Railroad Co., 26 635; Missouri, etc. R. R. Co. v. Vt. 247, 62 Am. Dec. 567; Rexford Fagan, 72 Texas, 127, 13 Am. St. V. Smith, 52 N. H. 355, 13 Am. Rep. 776 and note, 9 S. W. 749, 2 Rep. 42 and note; Clark v. Rail- L. R. A. 75 and note, road Co., 14 N. Y. 570, 67 Am. 3. Clarke v. Railroad Co., 14 Dec. 205 and note; Evans v. Rail- N. Y. 570, 67 Am. Dec. 205 and road Co., Ill Mass. 142, 15 Am. note; Palmer v. Railroad Co., 4 681 §§ 617-619 TERMINATION OF CONTEACTS. C!h. 20 confinement, if the carrier does all toward their safe carriage which should be done, and injury result no responsibility should be fastened upon the carrier.* § 6x8. Hiring contracts — Implication of discharge. — In every contract of hiring, there is an implication that the ser- vant may be discharged under certain circumstances. If the servant proves to be incompetent to do the thing he is employed to do, and the thing he represents himself qualified to do, the employer has the undoubted right to dismiss him and thus ter- minate the contract.^ So where a servant either neglects, or for want of capacity makes mistakes about his master's business detrimental to the latter's interest, the latter may discharge him and need not wait until the mistakes of the servant work great damages to him.^ The employe is bound to serve the employer faithfully and to refrain from doing any act knowingly and willingly which may affect injuriously the business of his employer ; if he does otherwise, the employer may terminate the contract.'^ § 619. Reservation of wages payable at certain intervals. — The reservation of wages, payable monthly or weekly, will not control the contract so as to destroy its entirety, when the par- ties have expressly agreed for a specified term, as for a year; but if the payment of monthly or weekly wages is the only cir- cumstance from which the duration of the contract is to be in- ferred, it will be taken to be a hiring for a month or a week.^ Mees. & VV. 749; Boyce v. An- 755; Callo v. Brouncker, 4 Car. & derson, 2 Pet. (U. S.), 150. P. 518; Leatherberry v. Odell, 7 4. Chicago, etc. R. R. Co. v. Fed. Rep. 641. Abels, 60 Miss. 1017. 7. Nichols v. Hantyn, 2 Esp. 5. Harmer v. Cornelius, 94 Eng. 732; Lacy v. Osbaldiston, 8 C. L. 236; Keedy v. Long, 71 Md. Car. & P. 80; Jaflfray v. King. 34 385, 18 A. 707, 5 L. R. A. 759 and Md. 220; Express Co. v. Trego, 35 note; Beeston v. Caller, 2 Car. & Md. 47. P. 607; Fillieuk v. Armstrong, 7 1. King v. Birdbrooke, 4 Term Ad. & El. 557. R. 245; King v. Toney, 2 Term R. 6. Newman v. Reagon, 63 Ga. 453; King v. Inliabitants, 12 East, 682 Cll. 20 RESCISSION OF CONTKACT. §§ 619, 620 If the servant fails to perform his part of the contract, and is discharged before the time of the periodical payment of his wages arrives, he can recover nothing for the broken period of service "vvhen the contract is entire, because the contract is entire, and the performance of the services for the whole time agreed upon Avas in the nature of a condition precedent to his right to recover for wages." But a contract for service "at a salary of $2,500 per annum" is not a contract for any definite time and at a fixed price, the complete performance of which is a condition precedent to a right to compensation. It is but a stipulation of the rates at which the employe is to be compensated for the services per- formed. He is not bound to serve for any definite time to en- title him to compensation.^ § 620. Extra services. — It is the general rule in agencies, that where a principal has an agent employed at an agreed compensation, and the principal confers on him additional pow- ers which involve greater duties, with no stipulation for addi- tional compensation, he cannot recover extra wages for the additional services, unless a custom fixes it otherwise.* In building contracts where there is a deviation from the original plan, the rule is, that if the plan is wholly changed, or so much so that the work cannot be traced by the contract, the work must be paid for according to value and not by tlie contract.^ So after an agency is terminated, if the former 351; Beach v. Mullen, 34 N. J. L. Mees. & W. 112; Libhart v. Wood, 343; Evans v. Railroad Co., 24 Mo. 1 Watts & S. (Pa.) 265, 37 Am. App. 114; Thomas v. Hatch, 53 Dec. 461; Singer v. McCormick, 4 Wis. 296, 10 N. 393; Babcock v. Watts & S. (Pa.) 266. Moore, 62 Md. 161; McCullough 3. llaney v. Caldwell, 35 Ark. Iron Co. V. Carpenter, 67 Md. 554, 15G. 11 A. 176; Prentiss v. Ledyard, 28 4. United States v. McDaniel, 7 Wis. 131. Pet. (U. S.) 1; Moreau v. Dum- 2. Turner v. Robinson, 6 Car. & agene, 20 La. Ann. 230; Succession P. 15; Ridgway v. Market Co., 3 of Jackson, 47 La. Ann. 1089, 17 So. Ad. & El. 171; Lilley v. Ehvin, 11 598. Q. B. 742; Turner v. Mason, 14 5. Add. on Cont. 555. 870. 683 §§ 620-622 TERMINATION OF CONTRACTS. Cll. 20 agent is still employed to do other work he is entitled to recover what the time so occupied and the services so rendered are reasonably worth.^ § 621. Reservation of right to terminate. — When the right to terminate a contract on notice, is reserved without any fraud or mistake, but with the actual knowledge and consent of the parties to the contract, it is as valid in law as any other clause of the instrument, and the courts, when called upon, will enforce it, unless to do so would be manifestly contrary to equity and good conscience.^ Thus, where parties contract to manufacture jars under a license of patentee, to be teraiinated after thirty days from notice, the courts will enforce it.^ And a contract of hiring by the year may be terminated within the year upon notice by one of the parties to the other, if that condition is inferable as a part of the contract from their negotiation, or from usage known to them and under- stood to be applicable to such arrangement^ § 622. No limitation as to term of hiring. — The rule of hir- ing without express contract where the service is continued for a long time, is that the hiring will be understood to be by the year, unless circumstances and the dealing of the parties indi- cate a less period of time.^ But when there is no stipulation as to the duration of the employment which is not continued for a long time, and no custom to control, the principal may discharge his agent at any time ; but this power to revoke may 6. Attrill V. Patterson, 5 Md. Fitzpatrick v. Woodruff, 96 N. Y. 228; Pritehet v. Badger, 87 Eng. 561; Patrick v. Railroad Co., 93 N. C. L. 295; Tombs V. Alexander, 101 Car. 422; Thayer v. Allison, 109 Mass. 256, 3 Am. Rep. 349; Walker 111. 180. V. Tyrrel, 101 Mass. 257, 3 Am. Rep. 8. Dick v. Ireland, 130 Pa. St. 352; Coffin V. Landis, 46 Pa. St. 299, 18 A. 135. 426. 9. Patterson v. Manuf. Co., 106 7. Morrissey v. Broomal, 37 Neb. Mass. 56. 766, 56 N. W. 383; Fitzgerald v. 1. Ennis v. Palace Car Co., 165 Allen, 128 Mass. 232; Dick v. Ire- 111. 164, 46 N. E. 439. land, 130 Pa. St. 299, 18 A. 735; 684 Ch. 20 RESCISSION OP CONTRACT. § 622 be restrained by express stipulation or unless the hiring is for a valuable consideration. Thus, when one as an agent for another contracts to sell lands of the latter, in consideration of one-half the net proceeds of the sale, and there is no stipulation in the contract as to tlie duration of the employment, either party may terminate the contract at any time, even without notice;^ and this may be done by parol where the agency is conferred by an instrument under seal ;^ and this may be done though the face of the instrument says the agency is irrevoca- ble/ So when a party is hired for a time not exceeding five years, the minimum term is not defined and is necessarily at will of either party ;^ when parties have entered into written engagements, with express stipulations, it is manifestly not desirable to extend them by implication ; the presumption be- ing that having expressed some, they have expressed all the conditions by which they intend to be bound under that instru- ment, and the court should not add to the obligations by which the parties have bound themselves.' In England there is a class of contracts for the employment of servants where the law presumes the contracts to be a yearly or monthly employment, though nothing is said of the duration of service. They relate to contracts of hire, of menial, domestic, and husbandry servants. They are so construed be- cause such hirings are customarily for a year or a month, and the English courts recognize that custom;'' but in the United States it is doubtful if any such custom prevails. 2. Coffin V. Landis, 46 Pa. St. 4. McGregor v. Gardner, 14 Iowa, 426. See, also, Smart v. Sanders, 326; Walker v. Denison, 86 III. 5 Man. Gr. & S. 895; Peacock v. 142. Cummings, 46 Pa. St. 434; Walker 5. Peacock v. Cummings, 46 Pa. V. Denison, 86 111. 142; Conrey v. St. 434. Brandegee, 2 La. Ann. 132; Trum- 6. Aspden v. Austin, 5 Ad. & El., bull V. Nicholson, 27 III. 149; N. S. 671 ; Dunn v. Sayles, 5 Ad. & Phillip V. Howell, 60 Ga. 411. El., N. S. 685. 3. Blackstone v. Butteinon, 53 7. Huttman v. Boulnois, 2 Car. Pa. St. 266, 91 Am. Dec. 203; & P. 510; Fawcett v. Cash, 5 Barn. Brookshire v. Brookshire, 8 Ired. & Ad. 907 ; Holcroft v. Barber, 1 (N. Car.) 74, 47 Am. Dee. 341 and note. 685 § 623 TERMINATION OF CONTEACTS. Ch. 20 § 623. Notice of termination — Reservation. — To terminate a contract in which there is a stipulation that it may cease by notice of either party, the notice must be clear and unequivocal ;^ and a failure to give such notice will not discharge the con- tract,^ where a specific contract to pay a certain sum for a year, provides that the employer may dismiss the employe at any time during the year upon giving a month's notice, and the latter is so dismissed, the contract is not violated or rescinded, and the employe must recover upon it, and cannot resort to a quantum meruit action.^ Car. & K. 4. See, aiso, Butterfleld dine Press Co. v. Estes, 75 Mich. V. Merlin, 3 Car. & K. 163; Chitty 100, 42 N. W. 667. on Cont. 502; Addison on Cont. 2. Bour v. Kimball, 46 111. App. 431. 327. 1. Crescent Manuf. Co. v. Manuf. 3. Jenkins v. Long, 8 Md. 132. Co., 100 Mo. 325, 13 S. W. 503; Al- 680 CHAPTER XXI. Statnte of Limitations. ARTICLE I. Discharge by Lapse of Time. Section 624. At Law. 625. In Equity. 626. Gross Laches. 627. Rebuttal of Presumption — Continuing Contract. § 624. At law. — Lapse of time after a debt is contracted is always material, as to its payment irrespective of the statute of limitations; and the doctrine is that payment of any debt, specialty or judgment, will, in a case where there is no recogni- tion of it by the debtor, be presumed after the delay of twenty years.^ The presumption of payment, which in reference to debts not embraced in the statute of limitations, arises after the lapse of twenty years, is not a presumption of law, that is, a rule which the court itself may apply, but is a presumption of fact, recognized by the law, from which a conclusion ought to be deduced by a jury.^ At common law it is a presumption that payment of a debt, even one due by specialty where it has been 1. Colsell V. Budd, 1 Gamp. 27; Hillary v. Waller, 12 Ves. 239; Morrow v. Robinson, 4 Del. Ch. Bailey v. Jackson, 16 Johns. (N. 521; Gaines v. Miller, 111 U. S. Y.) 210, 8 Am. Dec. 309 ; Brubaker 395, 4 S. Ct. 426; Rowland v. v. Taylor, 76 Pa. St. 83; Knight v. Windley, 86 N. Car. 36. McKinney, 84 Me. 107, 24 A. 744; 2. Stover v. Duren, 3 Strob. (S. Walker v. Emerson, 20 Tex. 706, 73 Car.) 450; Boyce v. Lake, 17 S. Am. Dec. 207; Atkinson v. Dance, Car. 481, 43 Am. Rep. 618; Shu- 9 Yerg. (Tenn.) 424, 30 Am. Dec. brick V. Adams, 20 S. Car. 49; 422. 687 §§ 624, 625 TERMINATION OF CONTRACTS. Ch. 21 ■unclaimed and without recognition for twenty years in the absence of evidence to the contrary, has been made. And this common law presumption is independent of and unaffected by the statute of limitations.^ Hence, early in England and in this country, in cases out- side of the statute, the courts had resort to presumption to take the place of evidence and frequently of belief as a general com- mon law principle.* A conflict of decisions exist in England which is due to the different views in regard to the ground of limitations. One line of decisions is based on the theory of presumption of pay- ment, as was the common law limitation ; the other theory on the impolicy in suffering debts to be unsettled for a long period of time, and the danger of injustice in the enforcement of State claims. The question is whether a statute of limitations is one of presumption or of repose. If it be one of presumption of payment, it is overcome by whatever will rebut a presumption of payment, and anything will do this which implies, or amounts to an acknowledgment, that the debt has not been paid. So the slightest acknowledgment will take the case out of the statute. But if it be a statute of repose, it remains a bar to the enforcement of a debt within its provisions, unless the debtor voluntarily renounces its benefit and makes a new promise to pay the old debt.^ The prevailing theory in Eng- land and in the United States is, that the statute of limita- tions is one of repose. So whenever the text speaks of pre- sumption, it has reference to the common-law doctrine which held that it might be presumed that payment had. been made after long lapse of time. § 625. In equity. — A court of equity applies the rules of laches according to its own ideas of right and justice, and the courts have never prescribed any specific period applicable to 3. Carr v. Dings, 54 Mo. 95; 4. Hillary v. Walter, 12 Ves. Clemens v. Wilkinson, 10 Mo. 97; 267. Williams v. Mitchell, 112 Mo. 300, 5. Truman v. Fenton, 1 Cowp. 20 S. W. 647. 548. 688 Oh. 21 STATUTE OF LIMITATIONS. §§ 625, 626 every case, like the statute of limitations; and what constitutes a reasonable time within which suit must be brought depends upon the facts and circumstances of eacli particular case.^ And this rule is peculiarly applicable where the property, the sub- ject of litigation, is subject to rapid or frequent changes in value, as stocks, oil wells, mining property and the like/ § 626. Gross laches. — It is an inherent doctrine of the courts of equity to refuse relief where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. And the principle, founded as it is upon consideration of natural justice and public policy, is always firmly enforced, especially in cases involving transac- tions to which immediate parties are dead.^ Where a party injured by fraud is in ignorance of its exist- ence, the duty to commence proceedings arises only upon dis- covery.^ But the party must distinctly state in his allegations, and prove at the hearing, the time of the discovery and what the discovery was, so that the court may really see whether by the exercise of ordinary diligence, the discovery might not have been made before.^ The law is well settled that where the question of laches is 6. BrowTi V. Buena Vista Co., 95 Wis. 662, 45 N. W. 532; Galway v. U. S. 157, 160; Wood v. Carpenter, Railroad Co., 128 N. Y. 132, 153, 28 101 U. S. 140; Twin Lick Oil Co. ]nJ. E. 479, 13 L. R. A. 788. V. Marbury, 91 U. S. 587; Rogers v. 1. Harrison v. Gibson, 23 Gratt. Van Nortwick, 87 Wis. 414, 58 N. (Va.) 212, 223; Smith v. Clay, 3 W. 757; Rogers v. Saunders, 16 Bro. C. C. 639, n; Hatcher v. Hall, Me. 92, 33 Am, Dec. 635; Patter- 77 Va. 573; Carr v. Chapman. 5 Bon V. Martz, 8 Watts (Pa.), 374, Leigh (Va.) 176; Hill v. Umberger, 34 Am. Dec. 474; Southcombe v. 77 Va. 653; Defiance Water Co. v. Bishop, 6 Hare, 213; Eads v. Wil- Defiance, 68 Ohio St. 520, 67 N. E. Hams, 4 DeG. M. & G. 674; Daggers 1052. V. Van Dyck, 37 N. J. Eq. 130; Hall 2. Maeder v. Norton, 11 Wall. V. Denckla, 28 Ark. 506; Trader v. (U. S.) 458; Kilbourn v. Sunder- Jarvis, 23 W. Va. 100. land, 130 U. S. 518, 9 S. Ct. 594. 7. Twin Lick Oil Co. v. Marbury, 3. Stearns v. Page, 7 How. ( V. 91 U. S. 587; Johnston v. ]\lining S.) 819; Badger v. Badger, 2 Wall. Co., 148 U. S. 360, 370, 13 S. Ct. ( U. S.) 87, 95. 585. See, also. Combs v. Scott, 76 689 §§ 626, 627 TERMINATION OF CONTRACTS. Oh. 21 in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put upon a man of ordinary in- telligence the duty of inquiry.* And the duty is more peremp- tory where the property itself is of uncertain value, and consid- erable expenditures are b-^ang made, and it is liable to greatly increase in value. In such cases the court looks with disfavor upon the claims of those who have waited to decide, when the danger is over, which has been at the risk of another, to come in and claim the profits of the event.^ Poverty or pecuniary embarrassment is not a sufficient excuse for postponing the as- sertion of one's rights.^ § 627. Rebuttal of presumption — Continuing contracts. — The lapse of twenty years raises a presumption of payment at common law as to contracts, even sealed instruments, which, though not a presumption of law, and not therefore conclusive, yet it is a presumption of fact which has acquired an artificial force, subject to be rebutted ; but the facts relied on for this re- buttal must be stronger than mere belief deduced from the weight of testimony being on that side. They must be of a character which would revive a contract bound by the statute of limitations.^ Whether the statute has run often comes into consideration in cases of service in a family. Thus, in an action against administrators of a decedent's estate for work and labor performed by the plaintiff, the rule was announced if plaintiff performed labor for the intestate under an agree- 4. Wood V. Carpenter, 101 U. S. 6. Hayward v. Bank, 96 U. S. 141; Kennedy v. Green, 3 Myl. & 618. See, also, Rogers v. Van K. 699; Erlanger v. Phosphate Co., Nortwick, 87 Wis. 414, 58 N. W. L. R. 3 App. Cas. 1231; Carr v. 757; Voight v. Raby, 90 Va. 799, Hilton, 1 Curt. C. C. 390, 394; 20 S. E. 824. Buckner v. Calcote, 28 Miss. 432; 1. Boyce v. Lake, 17 S. Car. 481, Johnston v. Mining Co., 148 U. S. 43 Am. Rep. 618; Williaume v. 370, 13 S. Ct. 585. Gorges, 1 Camp. 217. 5. Cox V. Montgomery, 36 111. 396. 690 Ch. 21 STATUTE OF LIMITATIONS. 627 ment to be paid therefor, without specifying at Avhat time the payment should be made, or how long the labor should continue, the statute of limitations would not begin Ito run until the labor was ended ; that there being an entire Qontract to serve for an indefinite period, the rule that in an action on account, when all items of account are on one side, the fact that some items are within the period of limitation, does not take the others of a longer sta'nding out of the opera- tion of the statute, would not apply to such action upon an entire continuing contract.^ Such a continuing contract may be an implied contract, and the same rule will apply to it.^ In ijhe application of this rule that the contract is a continuing one and therefore the statute of limitations does not begin to run until the work is ended, applies to an implied contract the same as to a contract expressed.* In New York the rule is dif- ferent, and an action on such entire continuing contract is treated as if upon an account of distinct items all on one side, and the fact that some items are within the period of limita- tion does not take the others of longer standing out of the opera- tion of tlie statute.^ 2. Littler v. Smiley, 9 Ind. 116. 3. Crampton v. Logan, 28 Ind. App. 405, 63 N. E. 50; Knight v. Knight, 6 Ind. App. 268, 33 N. E. 456. 4. Schoonover v. Vachou, 121 Ind. 3. 22 N. E. 777: Bartel v. Mathias, 19 Oreg. 482, 24 P. 918; Hickam v. Hickam, 46 Mo. App. 496; O'Brien v. Sexton, 140 111. 517, 36 N. E. 461; Frost v. Tarr. 53 Ind. 390. 5. In re Gardner, 103 N. Y. 533, 9 N. E. 306, 57 Am. Rep. 768. 091 § 628 TERMINATION OF CONTKACTS. Clh. 21 AKTICLE II. Application of Statute. Section 628. Beginning to Run. 629. Continuing to Run. 630. Trusts — Unpaid Subscription. 631. Death of Ancestor. 632. Absence of Debtor from the State. 633. Absence of Creditor from the State. 634. Joint Debtor. 635. Surety's Liability. 636. Statutory Provisions. 637. Waiver of the Statute. 638. What Law Governs. § 628. Beginning to run — The statute of limitations begins to run from the time when the right of action accrues.^ Thus, lon a deposit of money to be kept until demanded, no action /accrues until demand is made.^ But a promise to pay a note on demand, such may be brought immediately because the action has accrued and the beginning of a suit is a sufficient demand, and the statute begins to run from the date of the promise.' iStatutes of limitation do not run against the United States and 'the States except where it is enacted that it shall so run ;^ but municipal corporations are not generally excepted,^ and they may plead it.® When the hiring of a party is by the month, salary payable at the end of each month, the statute begins to run against the 1. Odlin V. Greenleaf, 3 N. H. McCrary, C. C. 563 ; Swann v. Lind- 270; Withers v. Richardson, 5 T. sey, 70 Ala. 507. B. Mon. (Ky. ) 94; Jones v. Jones, 5. Oxford v. Columbia, 38 Ohio 91 Ind. 378; McMichael v. Carlyle, St. 87; Gaines v. Hot Springs, 39 53 Wis. 504, 10 N. 656. Ark. 262; Forsyth v. Wheeling, 19 2. Zuek v. Gulp, 59 Cal. 142. W. Va. 318; Coleman v. Thur- 3. Ardress's Appeal, 99 Pa. St. mond, 56 Tex. 514. 421; Farquhar v. Morris, 7 Term 6. Board v. Blodgett, 155 111. R. 124. 4H, 40 N. E. 1025, 31 L. R. A. 70, 4. United States v. Co:- 1 Co., 5 40 Am. St. Rep. 348. 692 Cll. 21 STATUTE OF LIMITATIONS. §§ 628, 629 right of action for each month's services on tJie first day of each succeeding month.' The rule as affecting retainers of and services due to attor- neys at law is this : 1. Where an attorney is conducting a single suit, the statute will not begin to run until the end of the suit or the termination of the retainer in some other mode. 2. When the attorneys are regularly employed at a salary, given for advice and legal superintendence, and other services rendered from day to day, they stand upon the same footing as other salaried employes, so far as the statute affects them. 3. Ordinarily when a man is employed under a general agreement, fixing no term of service, but he continues in ser- vice a long time, his hiring will be treated as a hiring by the year. But in such case the statute will ordinarily have a claim for all outside of the prescriptive time, immediately before the commencement of the action, unless there is evidence to take it out of the operation of the statute. 4. The rule of hiring without express contract where the ser- vice is continued for a long time, the hiring will be understood to be by the year, unless circumstances and the dealing of the parties indicate a less period of time.* In case of a physician who causes injury by his unskillful work, the statute begins to run from the time his professional relation has ceased with his patient, as to bringing suit by the patient to collect damages.' § 629. Continuing to run. — The English statute provides that if the plaintiff, at the time the action accrues, be an in- fant, feme covert, non compos mentis, imprisoned, or beyond the seas, he may bring his action at any time within the prer scribed period of limitation after the disability ceases. If several disabilities co-exist when the right of action accrues, the statute does not begin to run until all are removed. But 7. Ennis v. Palace Car Co., 165 9. Gillette v. Tucker, 67 Ohio, 111. 164, 46 N. E. 439. 106, 64 N. E. 865, 93 iVm. St. 8. Ennis v. Palace Car Co., 165 Kep. 639 and note. 111. 164, 46 N. E. 439. 693 § 629 TERMINATION OF CONTBACTS. Ch. 21 if only one exists where the cause of action accrues, other disa- bilities arising afterwards cannot he tacked to the first, so as to extend the time of limitation. The phrase in the English statute " beyond the seas," or similar phrases, are nsed in some of the American statutes. Their interpretation has not been the same. Some courts construe the phrase to mean beyond the limits of the United States, while others hold that the phrase means beyond the State or jurisdiction where the action is tried. Where a statute of limitations begins to run it will continue to run until it produces a complete bar, unless there is some saving or qualification in the statute itself.^ A statute of limitation does not run where there is no one who has the right and the capacity to sue, and where there is no one capable of being sued. But when the statute once has commenced to run, it does not cease to run on account of any intervening disability to sue and to be sued.^ The statute of limitations effects the remedy only; it does not discharge the debt, but simply bars an action upon it after the statute has run. Though the remedy by action is gone, a lien or security for the debt is not lost by the running of the statute. So if a note should be given, which is barred in ten years after due, it will not prevent the foreclosure of a mortgage to secure it on real estate, which runs twenty years. The bar- ring of the debt does not effect the lien unless so provided by statute. The security and the debt are separate as to the statute.^ When the statute of limitations has begun to run, it con- tinues to run, notwithstanding the subsequent occurrence of 1. Peoria County v. Gordon, 82 468; Granger v. Granger, 6 Ohio, 111. 435 J People v. White, 11 111. 17; Milne's Appeal, 99 Pa. St. 483; 342; Rhodes v. Smithurst, 4 Mees. Kistler v. Hereth, 75 Ind. 177, 39 & Wei. 42; Cotterell v. Dutton, 4 Am. Rep. 131 and note; Henton v. Taunt. 826; Peck v. Randall. 1 Nichols, 55 Tex. 217. Johns. (N. Y.) 165; Rogers v. Hill- 2. Underhill v. Ins. Co., 67 Ala. house, 3 Conn. 398; McAuliff v. 45. Parker, 10 Wash. 141, 38 P. 744; 3. Pratt v. Huggins, 29 Barb. Langford v. Gentry, 4 Bibb (Ky.), (N. Y.) 277; Alexander v. Whipple, 6M Ch. 21 STATUTE OF LIMITATIONS. §§ 629, 630 some disability Avhich did not exist at the commencement of the action, and which, had it then existed, would have post- poned the running of the statute until removal of the disa- bility." § 630, Trusts — Unpaid subscription to corporation stock. — The statute begins to run from the time that the trustee has openly repudiated or disclaimed the trust.^ So delay on the part of the heir for an unreasonable period after reach- ing his majority, to set aside a purchase of his ancestor's land by the administrator, will bar relief where the adminis- trator during that time was openly and continuously in adverse possession within the knowledge of the heir.® Subscriptions to corporate stock are a fund in the hands of the stockholders, charged with a trust for the payment of cor- porate debts. This trust does not depend on any statute, but is deduced from the general principles of equity, from the premise that the capital is publicly pledged to those who deal with the corporation for their security. When the corporation becomes insolvent, the unpaid subscription becomes a fund for the payment of corporate debts. Then an interesting question arises whether the statute of limitations begins to run against the liability of the stockholders to the creditors of the corpora- tion, on their unpaid subscription at the time of the insolvency of the corporation, as shown by its assignment for creditors, or from its bankruptcy. But this unpaid fund is not to be put into distribution until the insufficiency of the other corporate assets is shown. The better rule is that the creditor need not wait until full administration has exhausted the other assets. The creditor should have the right to bring his action to ascertain 45 N. H. 502; Mayor v. Colgate, 12 5. Bland v. Fleeman, 58 Ark. N. Y. 140; Spears v. Hartley, 3 90, 23 S. W. 4; Merriam v. Hassam, Esp. 81; Williams v. Jones, 13 14 Allen (Mass.), 516, 92 Am. Dec. East, 439; Higgins v. Scott, 2 B. 795; Kane v. Bloodgood, 7 Johns. & Ad. 413. Ch. (X. Y.) 90, 11 Am. Dec. 417; 4. Harris v. McGoverns, 99 U. S. Wood v. Carpenter, 101 U. S. 139. 161; People v. Gordon, 82 111. 435; 6. Thomas v. Sypert, ffl Ark. Hunton v. Nichols, 55 Tex. 217. 575, 33 S. W. 1059. 695 §§ 030, 631 TERMINATION OF CONTRACTS. Ch. 21 the liability of the stockholder while evidence on disputed facts is obtainable.^ But other courts hold differently, and declare that the other assets must be fully administered before suit can be brought against the stockholder who has not paid in full for his stock. Under this rule, the main suit for the exhaustion of the corporate assets may be so prolonged as to permit the statute of limitations to run successfully in favor of stockhold- ers who are debtors of insolvent corporations, for unpaid stock. As a general rule the statute does not run as between trustee and cestui que trust in express trusts, but the rule is otherwise as to constructive trusts.* § 631. Death of ancestor. — Where a person who could have maintained an action to recover an interest in his lifetime dies, the running of the statute of limitations is not suspended during the minority of one who claims under the decedent.^ A provision of a statute for deducting from the period of limitations the time of absence of the debtor from the State, ceases to apply upon his death in another State.^ And w^hen the statute extends the time within which a personal action may be brought in case of the death of the person entitled to bring, OT liable to such action, to a specified time from the date of such death, the action will become barred without reference to the appointment of an administrator, in the time named.^ And the fact that the right of parties claiming an interest in lands by right of heirship and as remaindermen was con- 7. Swearington v. Dairy Co., 198 Am. St. Rep. 84; Thompson v. Pa. St. 68, 47 A. 941, 53 L. R. A. Smith, 7 Serg. & R. (Pa.) 209, 10 471. Am. Dec. 453; Piper v. Hoards, 107 8. Redfoid v. Clarke (Va.), 41 N. Y. 67, 13 N. E. 632, 1 Am. St. S. E. 720. Rep. 785. See, also, Gates v. Buck- 1. Grether v. Clark, 75 Iowa, with, 112 Ala. 356, 20 So. 399; 383, 39 N. W. 655, 9 Am. St. Rep. McAnliff v. Parker, 10 Wash. 141, 491; Chauncey v. Powell, 103 N. 38 P. 744. Car. 159, 9 S. E. 298; Frederick v. 2. Hibernian Banking Asso. v. Williams, 103 N. Car. 189; Mc- Bank, 157 111. 524, 4l N. E. 284. Laran v. Benton, 73 Cal. 329, 2 Am. 3. Hughston v. Nail, 73 Miss. St. Rep. 814, 14 P. 879; Castro v. 284, 18 So. 920. Geil, 110 Cal. 202, 42 P. 804, 52 696 Ch. 21 STATUTE OF LIMITATIONS. §§ 631, 632 ■sidered very doubtful for several years after the falling of the life estate, and nntil their rights were made clear by a decision in a suit between other parties, is no ground for holding that the statute of limitations was in the meantime suspended as against them.* § 632. Absence of debtor from the State. — In most of the States it is provided that after a cause of action has arisen against a person and he departs from the State, the statute of limitations is suspended while he is absent, and does not begin tto run again until his return. In such case the party must depart after the cause of action has accrued and be continuously absent from the State, and he must reside without the State. All these elements must concur in order to suspend the opera- tion of the statute. But a person who has a residence and domicile in a state, and departs as a traveler for business or pleasure in another country, does not by his absence acquire a residence or reside in that country. He must while so absent at least take up his temporary abode at some particular place with the intention of making it his home while so absent, and actually reside there.^ Neither a residence or domicile is acquired by a mere visi- tor from this country traveling from place to place in Europe, all the time intending when the purpose of the journey is satis- fied to return to his home here.^ So where a debtor removes from a State before the action accrues, periods which he subsequently spends in the State as a salesman traveling from place to place, and remaining only a few days in each place, cannot be included to complete the period of limitations.^ 4. Elder v. McClaskey, 70 Fed. Meli, 120 N. Y. 485, 24 N. E. 996, Rep. 529, 17 C. C. A. 251, 37 U. S. 17 Am. St. Hep. 652. App. 1, 199. 2. Hart v. Kip, 148 N. Y. 306, 1. Hart V. Kip, 148 N. Y. 306, 42 N. E. 712. 42 N. E. 712; Dupuy v. Wurtz, 53 3. VVeille v. Levy, 74 Miss. 34, N. Y. 556; People v. Piatt, 117 N. 20 So. 3, 60 Am. St. Rep. 500. See, Y. 159, 22 N. E. 937 ; DeMeli V. De- also, Lee v. McKay, 118 N. Car. 518, 24 S. E. 210. 697 §§ 632, 633 TEiBMINATION OF CONTRACTS, C!h. 21 The debtor's absence from the State is not to be ineliicled when applying the statute of limitations.* In many States, tihongh not in all, a statute barring a debt arising in another State when barred in the latter State, does not apply to a debt accrning in a State against a resident thereof who removes to another State after the action accrues.^ Bnt this matter is controlled by statutory provisions, and it makes no difference where the cause of action arises.® § 633. Absence of creditor from the State. — The English statute of limitations which saved to persons " beyond the sea," when their cause of action accrued, a limited time after their retiurn, within which to sue, runs from the time the party re- turns, and his going abroad again gives him no privilege, for that is gone by his having once returned to the kingdom, after his cause of action accrued.^ A disability is removed, within the purview of the statute, when it no longer exists ; that of absence from the State ends when the personal presence of the creditor in the State begins ; and once ended by such presence, though it be but for a tempo- rary purpose and of short duration, the disability does not re- vive by subsequent absence however permanent in its character, or long continued,^ even when commenced during his infancy.* Every person who is absent from the State when his cause of action arises, whether of consenting capacity or not, is in- cluded in the saving clause of a statute, unless excepted from 4. Hampton v. France, 32 S. W. 6. Webster v. Davies, 44 Neb. 950, 33 S. W. 826, 17 Ky. L. K. 301, 62 N. W. 484. See, also, 980. Thompson v. Read, 41 Iowa, 48; 5. Hibernian Banking Asso. v. Goodnow v. Stryker, 62 Iowa, 221, Bank, 157 111. 520, 41 N. E. 918. 14 N. 345, 17 N. 506; Wright v. See, also, Bagwell v. McTighe, 85 Johnson, 42 Ind. 20. Tenn. 616, 4 S. W. 46; Kempe v. 7. Sturt v. Mellich, 2 Atk. 610. Bader, 86 Tenn. 189, 6 S. W. 126; 8. Faw v. Roberdeau, 3 Cranch Chevrier v. Robert, 6 Mont. 319, 12 ( U. S.), 174. P. 702; Lloyd v. Perry, 32 Iowa, 9. Powell v. Koehler, 52 Ohio 144; Davis v. Harper, 48 Iowa, St. 103, 39 N. E. 195, 26 L. R. A. 513; Mechanics Build. Asso. V. 480, 49 Am. St. Rep. 705 and note. Whitaere, 92 Ind. 547. 698 Ch. 21 STATUTE OF LIMITATIONS. §§ 633, 634 its action. Tlic disability may be an absence from the State ; where such is the case, the only fact essential to its removal is the actual presence of the person in the State ; no distinction having been made l)y the statute, either with respect to the disability, or its removal, on account of the age, or capacity of the person, or other circumstances. And such disability as absence from the State ceases from the time the actual presence of the person in the State begins, though such presence be of short duration and while the person is an infant.^° § 634. Joint debtor. — In some of the States the absence from the State of one of the joint debtors suspends the statute of limitations as to all.^ In England, if the right of action accrues against several persons one of whom is beyond the seas, the statute of limita- tions does not run until his return, though the others have never been absent;^ but this matter is regulated by the various statutes which must be consulted as there are decisions other- wise.^ Thus, in New York, in case of joint debtors, the statute runs against the one who remains at home, but not against the one who has gone out of the State.* The general American doctrine is that a part payment of a matured debt by one of several joint debtors is inoperative to prevent the running of the statute as to the others.^ In order to prevent the running of the statute in favor of a joint debtor, he must make payment in person, or by an authorized agent. The mere fact that he has knowledge of payment being made by his co-debtors is not sufficient." Therefore, a partial payment 10. Powell V. KoeHler, 52 Ohio 4. Brewster v. Bates, 81 Hun, St. 103, 39 N. E. 195, 26. L. R. A. 294, 30 N. Y. S. 780, 62 N. Y. St. 480, 49 Am. St. Rep. 705 and note. 744. 1. Reybold v. Parker, 7 Houst. 5. Waughop v. Bartlett, 165 111. (Del.) 526. 124, 46 N. E. 197; Willoughby v. 2. Fanning v. Anderson, 7 Ad. Irish, 35 Minn. 63, 37 N. W. 379, & El., N. S. 811; Townsend v. Mead, 59 Am. Rep. 297. 16 C. B. 123. 6. McMillen v. Rafferty, 89 N. 3. Brown v. Delafield, 1 Denio Y. 456; Littlefield v. Littlefield, 91 (N. Y.), 445; Denny v. Smith, 18 N. Y. 203, 43 Am. Rep. 663. N. Y. 567. 699 §§ 634, 635 TEHMINATION OF CONTRACTS. C!h. 21 of a promissory note matured, or a debt due by the principal, will not suspend the statute as to the surety.^ Because the par- tial payment voluntarily made by a debtor upon a debt is in the nature of an acknowledgment or admission by him of his liability for the whole demand, and from the fact that he made the pay- ment, a new promise on his part to pay the remainder of the debt may be implied, and under this legal inference such new prom- ise arises at the time the partial payment is made, but this does not renew the debt as to his co-debtors.^ But other courts, fol- lowing the English rule, hold that part payment by one of the several and joint debtors, before the statute attaches, takes it out of the operation of the statute as to the other debtors, or makers. The principle on which part payment by a joint debtor is al- lowed to affect the other parties, is the community of interests among them, which creates the presumption that the party pay- ing would not acknowledge that which is adverse to his own in- terest, and therefore it will be in the interest of the others and bind them.® § 635. Surety's liability in case of fraud by principal. — The fraudulent concealment of principal does not release surety. 7. Mozingo v. Ross, 150 Ind. 688, thai v. Hosier, 16 Ohio St. 566 50 N. E. 867, 41 L. R. A. 612, 65 Vance v. Hair, 25 Ohio St. 349 Am. St. Rep. 387 ; Steele v. Souder, Steele v. Souder, 20 Kan. 39 20 Kan. 39; Waughop v. Bartlett, Davis v. Clark, 58 Kan. 454, 49 P, 165 111. 124, 46 N. E. 197. 665 ; Pfenninger v. Kokesch, 68 8. Van Keuren v. Parmelee, 2 Minn. 81, 70 N. W. 867; Wil- N. Y. 523, 51 Am. Dec. 322 and loughby v. Irish, 35 Minn. 63, 37 note; Shoemaker v. Benedict, 11 N. W. 379, 59 Am. Rep. 297. N. Y. 176, 62 Am. Dec. 95 and note; 9. Block v. Dorman, 51 Mo. 31; Winchell v. Hicks, 18 N. Y. 558; Disbrough v. Bideman, 20 N. J. L. McLaren v. McMartin, 36 N. Y. 275 ; Corliss v. Fleming, 20 N. J. L. 88; Harper v. Fairley, 53 N. Y. 349; Whitlock v. Doolittle, 18 Vt. 442; Graham v. Selover, 59 Barb. 440, 46 Am. Dec. 163; Pike v. War- (N. Y.) 313; Succession of Voor- ren, 15 Mo. 390, 57 Am. Dec. 207; hies, 21 La. Ann. 659; Smith v. Hunt v. Brigham, 2 Pick. (Mass.) Coon, 22 La. Ann. 445; Hunter v. 581, 13 Am. Dec. 458: Calwell v. Robertson, 30 Ga. 479; Bell V. Mor- Signourney, 19 Conn. 37; Perkins rison, 1 Pet. (U. S.) 351; Morien- v. Barstow, 6 R. I. 505. 700 Oh. 21 STATUTE OF LIMITATIONS. § 635 Hence, if a cause of action for the breach of the condition of a bond is fraudulently concealed by the principal, the surety is still held, and against the latter the cause of action must be deemed to have accrued where the fraud was first discovered, at which time the statute of limitations began to run.^ The liability of a surety on a claim w'hich is good as against the principal, ceases as soon as the claim is extinguished by the principal. Without a principal there can be no accessory. Nor can the obligation of the surety, as such, exceed that of the prin- cipal.^ So where the fraudulent concealment of the principal prevents the statute of limitations from running in his favor, it also stops it from running in favor of his surety.^ The existence of a principal debtor is a condition precedent to the operation of the contract of a surety.'* This is in ac- cordance with the general law of contracts, which prevents a contract from becoming operative, unless and until all condi- tions precedent are fulfilled.^ Where the principal extinguishes the debt by payment, this discharges the surety. Ordinarily the liability of a surety is measured by the liability of the principal,® But where the statute does not intervene, the liability of the surety is not changed by the insolvency and discharge of the principal in the bond of attachment. And the surety is still liable, though 1. McMullen v. Winfield, etc. Conn. 58, 33 A. 585, 50 Am. St. As.so., 64 Kan. 298, 67 P. 892, 50 Rep. 75. L. R. A. 924, 91 Am. St. Rep. 236; 4. Hazard v. Irwin, 18 Pick. Eissing v. Andrews, 66 Conn. 58, (Mass.) 95; Swift v. Beers, 3 33 A. 585, 50 Am. St. Rep. 75. Denio (N. Y.), 70; Mountstephen 2. Ferry v. Burchard, 21 Conn. v. Lakeman, L. R. 7 Q. B. 202; 603; Willey v. Paulk, 6 Conn. 74; Mallet v. Bateman, L. R. 1 C. P. Candee v. Skinner, 40 Conn. 464. 163. 3. Bradford v. McCormick, 71 5. Farmers and Mechanics' Bank Iowa, 129, 32 N. W. 93; Boone v. Kingsley, 2 Doug. (Mich.) 379. County V. Jones, 54 Iowa, 669, 2 6. Seaver v. Young, 16 Vt. 658; N. 987, 7 N. 155; Charles v. Hos- Boone County v. Jones, 54 Iowa, kins, 14 Iowa, 471, 83 Am. Dec. 709, 2 N. 987, 7 N. 155; Patter- 378 and note; Eising v. Andrews, 66 son's Appeal, 48 Pa. St. 345; Mc- Cabe V. Raney, 32 Ind. 309. 701 §§ 635-638 TEEMINATION OF CONTRACTS. Clh. 21 the principal is discharged in bankruptcy.^ Disability of prin- cipal will not discharge the surety.^ § 636. Statutory provisions. — The general rule is that no contract or agreement can modify a law, but exceptions are, that where no principle of public policy is violated, parties are at liberty to forego the protection of the law. Statutory pro- visions, designed for the benefit of individuals, may be waived, but where the enactment is to secure general objects of policy or morals, no consent will render a noncompliance with the statute effectual. But a statute limiting the time within which actions shall be brought is for the benefit and repose of indi- viduals and not to secure general objects of policy or morals.® § 637. Waiving of the statute. — A statute of limitations is for the benefit of individuals and not to secure general objects of policy or morals. Its protection, therefore, may be waived in legal form by those who are entitled to it, and such waiver, when acted upon, becomes an estoppel to plead the statute.^" And this agreement to waive the statute need not be in writing." Where such w^aiver is made it is continuous, unless by its terms it is limited to a specified time.^ § 638. What law governs. — ^Limitations of actions is gov- erned by the lex fori and is controlled by the legislature of the State in which the action is brought, as construed by the high- est court of that State, even if the legislative act or the judicial construction differs from that prevailing in other jurisdictions.^ 7. Pingrey on Suretyship and Trust Co. v. Sheldon, 68 Vt. 259, Guar. 131, 212, 408. 35 A. 177; Bridges v. Stephens, 132 8. Pingrey on Suretyship and Mo. 524, 34 S. W. 555. Guar. 92, 135, 190, 376, 379. 11. Brfdges v. Stephens, 132 Mo. 9. Quick V. Corliss, 39 N. J. L. 524, 34 S. W. 555. 11; Burton v. Stevens, 24 Vt. 131, 12. StalEe Trust Co. v. Sleldon, 68 58 Am. Dec. 153. Vt. 259, 35 A. 177. 10. Quick V. Corliss, 39 N. J. L. 1. McElmoyle v. Cohen, 13 Pet. 11; Burton v. Stevens, 24 Vt. 131, (U. S.) 312; Bauserman v. Blunt, 58 Am. Dee. 153; Gay v. Hassom, 147 U. S. 647, 13 S. Ct. 466; Met- 64 Vt. 495, 24 A. 715; Random v. calf v. Waterman, 153 U. S. 611, Tobey, 11 How. (U. S.) 493; State 14 S. Ct. 947;Obear v. Bank, 97 Y02 Ch. 21 STATUTE OF LIMITATIONS. § 638 So an action brought by a non-resident against a resident of a State, is governed by the statute of limitations of the State where the action is brought,^ unless the statute permits the law of the lex loci celehrationis also to be pleaded.^ This is a question pertaining essentially to the remedy, and not to the obligation of the debtor; for a retrospective statute, either adding to or diminishing the period within which an action may be brought upou a contract, does not impair its obligations, provided a reasonable time is allowed the creditor within which to sue.* Therefore, the lex fori must govern the period within which the action is to be brought.^ So the effect of part payment as to reviving the debt, or preventing the statute from running, is a matter to be determined by the lex fori.^ And the same doc- trine holds as to the written acknowledgment of the debt.' The lex fori governs as to the running of the statute against a for- eign judgment.^ If the defendant sets up the lex fori which prevents an action and judgment is rendered in his favor, this will prevent the creditor from suing him in another State where the lex fori will permit an action.^ But in case of judg- ment for the defendant on the plea that the contract is not in writing under the statute of frauds by the lex fori, or any other defense not going to the merits of the case, it does not preclude the creditor from suing in another State.^" Ga. 587, 25 S. E. 335, 33 L. R. A. 384 ; Balkau v. Woodstock Iron Co., 154 U. S. 177, 14 S. Ct.1010; Mar- tin V. Wilson, 120 Fed. Rep. 202, 58 C. C. A. 181; Great Western Tel. Co. V. Purdy, 162 U. S. 329, 16 S. Ct. 810; Bain v. Whitehaven, 3 H. L. Cas. 1. 2. Fearing v. Glenn, 73 Fed. Rep. 116, 19 C. C. A. 388. 3. Hurd's 111. Stat. (1903), ch. 83, sec. 20. 4. Wheeler v. Jackson, 137 U. S. 245, 11 S. Ct. 76; Ball v. Morrison. 1 Pet. (U. S.) 351. 5. Minor's Conf. L. p. 522; Story's Conf. L. sees. 576, 577. 6. Obear v. Bank, 97 Ga. 587, 25 S. E. 335, 33 L. R. A. 384. 7. Walsh V. Mayer, 111 U. S. 31, 4 S. Ct. 260. 8. Ambler v. Whipple, 139 111. 311, 28 N. E. 841, 32 Am. St. Rep. 202. 9. Bank v. Donnally, 8 Pet. (U. S.) 361. 10. Minor's Conf. L. p. 522, note. 703 CHAPTER XXII. Performance. AETICLE I. Specified Mode. SlcoTiOi^ 639. To Perform Work and Furnish Materials. 640. Substantial Performance — Good I'aith. 641. Time of Performance. § 639. To perform work and furnish materials. — It is the general rule that where a party has entered into a contract to perform work and furnish materials of a specified character, and the other party agrees to pay for the same upon the per- formance of the contract, although the work may be performed and materials furnished, yet, if not done in the manner stipu- lated, the contract is not performed and no action will lie for compensation.^ A substantial performance must be shown, un- less it has been waived or released.^ Where the contract provides that the work shall be to the sat- isfaction of the promisee, this means, according to some authori- ties, that the articles must be accepted as satisfactory before payment can be recovered, even though the promisee has arbi- trarily refused them.^ But other authorities hold that the prom- 1. Smith V. Brady, 17 N. Y. 173, 3. Zaleski v. Clark, 44 Conn. 218, 72 Am. Dec. 442; Glacius v. Black, 26 Am. Rep. 446; Brown v. Foster, 50 N. Y. 145, 10 Am. Rep. 449; 113 Mass. 136, 18 Am. Rep. 463; Dauchey v. Drake, 85 N. Y. 407. Singerly v. Thayer, 108 Pa. St. 291, 2. Glacius v. Black, 50 N. Y. 2 A. 230; Wood Reaping, etc. Co. 145, 10 Am. Rep. 449; Chandler v. v. Smith, 50 Mich. 565, 15 N. 906, State, 38 Ark. 197 ; Loren v. Hill- 45 Am. Rep. 57 ; Gibson v. Cranage, house, 40 Ohio St. 302; Hovey v. 39 Mich. 49, 33 Am. Rep. 351 and Pitcher, 13 Mo. 191. note. 704 Ch. 22 PEKFOEMANCE. §§ 639, 640 isee, in refusing, must act honestly and not in an arbitrary manner.* Thus, printing a lithographed cover design Avith the addition, for advertising purposes, of the lithographer's name, which is made after the approval of the proofs, is a breach of a contract to furnish finished work equal in good effect to the proofs, the approval resting with the customer. And this is so though the addition does not detract from the merit or use- fulness of the cover ; and though it is customary to make it unless an agreement to the contrary is subsequently made.^ § 640. Substantial performance in good faith. — Builders must perform their contract according to conditions. But building contracts embrace many particulars which it is im- practicable sometimes to comply with, with entire exactness; hence, the rule has been relaxed that a substantial compliance will be deemed sufficient. If there has been no wilful departure from the terms of the contract, or omission in essential points, and the contractor has honestly and faithfully performed the contract in all its material and substantial particulars, he will not forfeit his right to remuneration by reason of technical, inadvertent or unimportant omissions or defects.^ The court will enforce the rights of the contractor, but will permit the owner of the real estate or other property to recoup, set-off, or to file a cross action.^ 4. McClune v. Briggs, 58 Vt. 82, N. J. L. 343; Wade v. Haycock, 25 2 A. 583, 56 Am. Rep. 557 ; Duplex Pa. St. 382 ; Meincke v. Falk, 61 Safety Boiler Co. v. Garden, 101 Wis. 623, 21 X. 785, 50 Am. Rep. N. Y. 387, 4 N. E. 749, 54 Am. Rep. 157; Gleason v. Smith, 9 Gush. 709 and note; Baltimore, etc. R. R. (Mass.) 484, 57 Am. Dec. 62. Co. V. Brydon, 65 Md. 198, 3 A. 2. Williams v. Schmidt, 54 111. 306, 9 A. 126. 205; Garfield v. Huls, 54 111. 427; 5. Harris v. Sharpies, 202 Pa. Parker v. Piatt, 74 111. 430; Phil- St. 243, 51 A. 965, 57 Am. Rep. 318, lip v. Gallant, 62 N. Y. 256; Hick- 08 L. R. A. 214. man v. Pinkney, 81 N. Y. 211; 1. Smith V. Brady, 17 N. Y. 173, Hovey v. Pitcher, 13 Mo. 191; Pat- 72 Am. Dec. 442; Sinclair v. Tal- terson v. Judd, 27 Mo. 563; Porter madge, 35 Barb. (N. Y.) 602; v. Woods, 3 Humph. (Tenn.) 56, Glacius V. Black, 50 N. Y. 145, 10 39 Am. Dec. 153; Cutler v. Close, Am. Rep. 449; Beach v. Mullen, 34 5 Car. & P. 337. 705 § 640 TERMINATION OF CONTRACTS. Gh. 22 It is now the rule that where a builder has in good faith in- tended to comply with the contract, and has substantially com- plied with it, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects.^ But the defects must not run through the whole, nor be so essential as that the objects of the parties, to have a specified amount of work done in a particular time, is not accomplished.* And the mere belief of the contractor that he has performed, when he has not, will not avail him.^ It is held by one line of cases, that where one party enters into a special contract to perform work for another and fur- nish materials, and the work is done and the materials are fur- nished, but not in a manner stipulated in the contract, yet, if the work and materials are of any value and benefit to the other party, he is answerable to the amount whereby he is benefited.® However, some of the decisions hold that there can be no recovery at all even though the owner, where the building is on his land, uses it and derives a benefit from it, and though the contractor acted in good faith, provided there is not a sub- stantial compliance with the contract.^ 3. Sinclair v. Talmadge, 35 Barb. 5. ISmyth v. Ward, 46 Iowa, 339; (N. Y.) 602; Johnson v. De Pey- Devine v. Edwards, 101 III. 138. ster, 50 N. Y. 666 ; Glacius v. Black, 6. Hayward v. Leonard, 7 Pick. 50 N. Y. 145, 10 Am. Rep. 449; (Mass.) 181, 19 Am. Dec. 268 and Phillips V. Gallant, 62 N. Y. 264; note; Cutler v. Close, 5 Car. & P. Kenworthy v. Stevens, 132 Mass. 337; Norris v. School Dist., 12 Me. 123; Warren v. Stoddart, 105 U. S. 293, 28 Am. Dec. 182; Adams v. 224; Houston, etc, R. R. Co. v. Crossly, 48 Ind. 153; Pinches v. Snelling, 59 Tex. 116; Dunlap v. Church, 55 Conn. 183, 10 A. 264; Hand, 26 Miss. 460; Noble v. James, Oilman v. Hall, 11 Vt. 510, 34 Am. 2 Grant (Pa.), 278; Van Buren v. Dec. 700; Masters v. Houck, 39 Digges, 11 How. (U. S.) 461; State Mich. 431, 23 Am. Rep. 409. V. Bain, 36 Ohio St. 429; Reed v. 7. Elliott v. Caldwell, 43 Minn. Gallaher, 53 Ga. 456; Eaton v. 357, 45 N. W. 845, 9 L. R. A. 52 Woolly, 28 Wis. 628. and note; Smith v. Brady, 17 N. Y. 4. Phillips V. Gallant, 62 N. Y. 173, 72 Am. Dec. 442; Woodward 264; Woodward v. Fuller, 80 N. Y. v. Fuller, 80 N. Y. 312; Miller v. 312. Phillips, 31 Pa. St. 218; Bozarth 706 Ch. 22 PEEFORMANCE. § 641 § 641. Time of performance. — When a contract is completed with a term omitted as to time of performance, the legal effect is an engagement on the part of the promisor to perform within a reasonable time.^ The time when a promise is to be performed is always ma- terial and must be stated according to the truth, and proved as stated, whether it be upon the request of the plaintiff, or upon a particular day, or in a reasonable time.^ When an executory contract for the sale of goods contains no provision as to the time when delivery is to be made by the vendor, its legal effect is an arrangement to deliver within a reasonable time.^ Reasonable time is what is meant when not specified, and it is to be measured upon the facts and circum- stances of each case.* The promise to pay a sum on demand may be enforced imme^ diately.^ And where a day is fixed for performance, or where the performance is to be within a certain time, the contract must be performed at any time during the day, or during the last of the period designated.^ V. Dudley, 44 N. J. L. 304, 43 Am. Rep. 373. 1. Phillips V. Morrison, 3 Bibb (Ky.), 105, 6 Am. Dec. 638; At- wood V. Cobb, 16 Pick. (Mass.) 227, 26 Am. Dec. 657 and note. 2. Osborne v. Lawrence, 9 Wend. (N. Y.) 135. 3. Benj. on Sales, 683, n; Pope V. Manuf. Co., 107 N. Y. 61; 13 N. E. 592. 4. Stewart v. Marvel, 101 N". Y. 357, 4 N. E. 743; Ellis v. Thomp- son, 3 Mees. & Wei. 445; Davis v. Talcott, 14 Barb. (N. Y.) 611; Railroad Co. v. Smith, 21 Wall. (U. S.) 162; Palmer v. Breen, 34 Minn, 39. 24 N. W. 322; Minneapo- lis, etc, Manuf. Co. v. Manuf. Co., 122 U. S. 300, 7 S. Ct, 1187, 5. Omohundro v. Omohundro, 21 Gratt. (Va.) 626; Warren v. Wheeler, 8 Met. (Mass,) 97. 6. Startup v. Macdonald, 6 Man. & Gr. 593. 707 § 642 TERMINATION OP CONTRACTS. Cll. 22 ARTICLE II. Decision of Arbiter^ Architect or Engineer. Section 642. Provision in Contract for Arbiter as to Performance. 643. Arbitration Clause. 644. The Arbiter's Decision Must be Pertinent. 645. Fraud. 646. Dispense with the Production of the Architect's Certificate. 647. Time of Performance of the Work. 648. Waiver of Time of Performance. 649. One Party Acting Through a Partnership. 650. Work Must be Performed in a Workmanship Manner. 651. Receiving Benefits of Service. 652. Partial Payment as Evidence of Acceptance of Work. 653. Sufficiency of Performance. 654. Manufacturing Articles According to Samples — ^Delivery. 655. Substantial Performance. 656. Matters Excusing Nonperformance. 657. Implied Condition as to Contingent Impossibility of Per- formance. 658. Implied Condition of Contracts. 659. Why Implied Condition Attaches to the Contract. 660. Failure of Performance by Acts of the Promisor. 661. Matters Excusing Delay. 662. What Constitutes Breach. 663. Owner of Building Promising to See Seller of Materials Paid. 664. Acceptance and Waiver. 665. Risks During Performance. 666. Part Performance. § 642. Provision in contract for arbiter as to performance. — In building and construction contracts, generally a provision is inserted that the report of an engineer, inspector, or abiter as to the amount and quality of the work done or material fur- nished under the contract, shall be conclusive upon the parties to the agreement ; such provision is a legal and binding stipu- lation, and can only be set aside for fraud, or for such gross mistakes as imply bad faith or a failure to exercise an honest judgment.^ 1. Elliott V. Railroad Co., 74 Lewis v. Railroad Co., 49 Fed. Rep. Fed. Rep. 707; Williams v. Railroad 708; Kihlberg v. United States, 97 Co., 112 Mo. 463, 20 S. W. 631; U. S. 393; Sweeney v. United 708 Ch. 22 PEEFOEMANOE. §§ 642, 643 There is no moral law and no rule of public policy which forbids parties to submit to another for determination or de- cision a question of count, measurement, or distance, although these questions may be capable of accurate ascertainment.^ The legal presumption is that the measurements, inspection, and classification of the arbiter are accurate and just.^ So a contract to make an excavation for a building under the instruction of an architect, to be completed when the architect so declares, his decision that the work is performed is final whether done in accordance with the drawings or not.* But an engineer's final certificate based upon an erroneous construction of the contract, is not conclusive.^ § 643. Arbitration clause The rule is well settled that where parties to a construction contract of any kind agree to submit difference, or questions of any character arising in the construction of the work, to the decision of an architect or of an engineer, the decision of such arbiter is final, and all parties are bound by it, unless it be shown that the estimate or con- clusion is fraudulent or so excessive or so palpably unjust as to imply bad faith or gross neglect;^ an arbiter's estimates may be impeached only for fraud or gross mistake implying bad faith."' States, 109 U. S. 618, 3 S. Ct. 344; Railroad Co., 62 Mo. App. 677; Martinsburg, etc. Railroad Co. v. Kenney v. Queen, 26 Can. S. Ct. March, 114 U. S. 549, 5 S. Ct. 1035; 203. Chicago, S. F. R. R. Co. v. Price, 5. Burke v. Mayor, 7 App. Dir. 138 U. S. 185, 11 S. Ct. 290. 128, 40 N. Y. S. 81. See, also, 2. Kihlberg v. United States, 97 Gondon v. Railroad Co., 171 Pa. St. U. S. 398. 492, 33 A. 61. 3. Lewis V. Railroad Co., 49 Fed. 6. McDonald v. Railroad, 93 Rep. 708; Bumpass v. Webb, 4 Tenn. 281, 24 S. W. 252; Railroad Port. (Ala.) 65, 29 Am. Dec. 274; Co. v. Central Lumber Co., 95 Tenn. Pleasants v. Ross, 1 Wash. (Va.) 538, 32 S. W. 635; Martinsburg, 156, 1 Am. Dec. 449; Elliott v. etc. Railroad Co. v. March, 114 U. Railroad Co., 74 Fed. Rep. 707. S. 540, 5 S. Ct. 1035; Sweeney v. 4. Smith V. Trust Co., 97 Iowa, United States, 109 U. S. 618, 3 S. 117, 66 N. W. 84. See, also. Bank Ct. 344. V. Webb (Ky.), 33 S. W. Rep. 1109, 7. Williams v. Railroad Co., 112 17 Ky. L. Rep. 1184; Mackler v. Mo. 463, 20 S. W. 631, 34 Am. St. 709 §§ 644, 645 TERMINATION OF CONTRACTS. C!h. 22 § 644. The arbiter's decision must be pertinent. — ^An engi- neer or other arbiter cannot bind the parties by doing or cer- tifying what was not authorized by his appointment.^ The law does not require that any particular language shall be used by the arbiter in his certificate, and if it is in substantial compli- ance with the requirements of the contract it is suflBcient and conclusive, unless there be fraud or mistake.^ The statement by an engineer, that the section of a railroad was in suitable condition for traffic, is but an expression of opinion and is entitled to no consideration.^" § 645. Fraud. — The arbiter must exercise an honest judg- ment and commit no such mistakes as, under all the circum- stances, will imply bad faith.^ Where the contractor's certifi- cate is final, it is not a sufficient excuse for failure to produce such certificate that the contractor feared to apply for it because he believed the architect to be fraudulently prejudiced against him.^ And the mere fact that the architect's decision is, in the opinion of others^ erroneous, does not show that it is void because fraudulent.' Rep. 403; Railroad Co. v. March, 8. Kansas City, etc. Railroad Co. 114 U. S. 540, 5 S. Ct. 1035; Rail- v. Perkins, 88 Tex. 66, 29 S. W. road Co. v. Price, 138 U. S. 185, 11 1048. S. Ct. 290; Kansas City, etc. Rail- 9. Railroad Co. v. Henry, 65 Tex. road Co. v. Perkins, 88 Tex. 66, 29 691; O'Neal v. King, 3 Jones L. S. W. 1048; Sheffield, etc. R. (N. Car.) 518; Johnson v. Univer- R. Co. V. Gordon, 151 U. S. sity, 35 111. 518; Kansas City, etc. 285, 14 S. Ct. 343; Canal Railroad Co. v. Perkins, 88 Tex. Trustees v. Lynch, 5 Gil. (111.) 66, 29 S. W. 1048. 521 ; McAuley v. Carter, 22 111. 53; 10. Kansas City, etc. Railroad Co. Michaelis v. Wolf, 136 111. 68, 26 v. Perkins, 88 Tex. 66, 29 S. W. N. E. 384; Arnold v. Bournique, 1048. 144 111. 132, 33 N. E. 530, 20 L. R. 1. Martinsburg, etc. Railroad Co. A. 493, 36 Am. St. Rep. 419; Gil- v. Marsh, 114 U. S. 549, 5 S. Ct. more v. Courtney, 158 111. 432, 41 1035; Elliott v. Railroad Co., 74 N. E. 1023; Thomas v. Fleury, 26 Fed. Rep. 707; Kihlberg v. United N. Y. 26 ; Noland v. Whitney, 88 N. States, 97 U. S. 398. Y. 648; Weeks v. O'Brien, 141 N. 2. Gilmore v. Courtney, 158 111. Y. 199, 36 N. E. 185; Chism v. 432, 41 N. E. 1023. Schipper, 51 N. J. L. 1, 16 A. 316, 3. Gilmore v. Courtney, 158 111. 14 Am. St. Rep. 668. 432, 41 N. E. 1023. 710 Ch. 22 PEKFOBMANCE. §§ 645,646 In general, the decision of the arbiter can only be set aside for fraud or for such gross mistake as imply bad faith or a failure to exercise an honest judgment* If the decision is fraudulent, or so excessive or unjust as to imply bad faith or gross neglect, it will be set aside.^ § 646. Dispense with the production of the architect's cer- tificate. — In many cases the contract provides that the architect shall give his certificate to the contractor on the completion of the building, which is a condition precedent to the recovery of the contract price from the owner of the building. But the fraudulent failure of the architect will release the contractor from its production, and he can collect without it.^ Fraud in the decision of the architect or superintendent will excuse the failure to obtain his decision where it is a condition precedent ; this, too, without regard to whether the architect or superintendent is the agent of the owner of the building or not, because of the architect's fraudulent decision, and his fraud re*- lieves the contractor from the performance of a condition prece- 4. Elliott V. Railroad Co., 74 Fed. Rep. 707; Williams v. Rail- road Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403; Kihlberg v. United States, 97 U. S. 398. 5. Railroad Co. v. Central Lum- ber Co., 95 Tenn. 538, 32 S. W. 635 ; McDonald v. Railroad Co., 93 Tenn. 281, 24 S. W. 252; Sweeney v. United States, 109 U. S. 618, 3 S. Ct. ?^A4; Railroad Co. v. March, 114 U. S. 549, 5 S. Ct. 1035; Railroad Co. V. Price, 138 U. S. 185, 11 S. Ct. 290; Lewis v. Railroad Co., 49 Fed. Rep. 708; Kennedy v. Poor, 151 Pa. St. 472, 25 A. 119; Balti- more, etc. R. R. Co. V. Brydon, 65 Md. 198, 3 A. 306, 9 A. 126. 57 Am. Rep. 318; Whelen v. Boyd, 114 Pa. St. 228, 6 A. 384. See, also, Vaught V. Williams, 120 N. Y. 253, 24 N". E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; Lull v. Korf, 84 111. 225. 1. Bradner v. Roflfsell, 57 N. J. L. 32, 29 A. 317; Murdock v. Jones (N. Y.), 3 App. Div. 221, 38 N. Y. S. 461; Chism v. Schipper, 51 N. J. L. 1, 16 A. 316, 14 Am. St. Rep. 668; Baltimore, etc. R. R. Co. v. Polly. 14 Gratt. (Va.) 447; Lynn V, Railroad Co., 60 Md. 404, 45 Am. Rep. 741 ; Herrick v. Belknap, 27 Vt. 673; Snell v. Brown, 71 111. 133; Wyckoff v. Meyers, 44 N. Y. 143; Thomas v. Fleury, 26 N. Y. 26; Bowery Nat. Bank v. Mayor, 63 N. Y. 336; Batchelor v. Kirk- bride, 27 Fed. Rep. 899 : Batterbury V. Vyse, 2 Hurlst. & C. 41; Pawley V. Turnbull, 7 Jurist, N. S. 792; Compare Clark v. Watson, 18 C. B., N. S. 278; Milne v. Field, 5 Exch. 829. 711 §§ 646-648 TERMINATION OF CONTRACTS. Clh. 22 dent, requiring his decision or certificate. So fraud on the part of an engineer who was to certify to the performance of a con- tract, as a condition precedent to a recovery, will allow the con- tractor to recover, upon proof of the quantity and value of the work done.^ § 647. Time of performance of the work. — ^Where the par- ties make time the essence of the contract, it must be performed within the period limited.^ Time not being the essence of the contract for payment for the performance of specific work, the party entitled to the services does not forfeit them absolutely by failing to require performance within the time named in the contract.^ In the absence of the term of a building contract, the contract price is presumed to be payable only on completion of the work.^ § 648. V/aiver of time of performance. — It is the settled doctrine of the English courts that a contract within the statute of frauds cannot be changed as to the mode or time of performance by an oral executed contract.^ In the United States the general rule is that a party to a written contract, sealed or unsealed, within or without the stat- ute of frauds, who is entitled to demand performance by the other party of act within a specified time, and who has con- sented orally to the postponement of the performance to a time subsequent to that fixed by the contract, where the other party has acted upon such consent and in reliance thereon has per- mitted the contract time to pass without performance, is estopped from subsequently recalling consent, and waives his 2. Lynn v. Railroad Co., 60 Md. 5. Smith v. Sheltering Arms, 89 404, 45 Am. Rep. 741; Baltimore, Hun, 70, 35 N. Y. S. 62, 69 N. Y. etc. R. R. Co. V. Polly, 14 Gratt. St. 273. (Va.) 447. 1. Stead v. Dawbar, 10 Ad. & El. 3. Moot V. Association, 90 Hun 57; Hickman v. Haynes, L. R. 10 (N. Y.), 155, 35 N. Y. S. 737, 70 C. P. 598. Compare Cuff v. Penn, N. Y. St. 533. 1 Maule & S. 21. 4. Kanapolis Land Co. v. Mor- gan, 1 Kan. App. 65, 41 P. 206. Y12 Ch. 22 PERFORMANCE. §§ 648, 649 right to treat the nonperformance within the original time as a breach of the contract.^ The original contract is not changed by such a waiver, but it stands as an answer to the other party who seeks to recover damages for nonperformance by an iinrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon, but it would be inequitable to hold that a default, justi- fied by the consent, happening during its existence, should fur- nish a ground of action. It should make no difference what the character of the original may be, whether one within or wuthout the statute of frauds, sealed or unsealed, where one party to a contract, before the time for performance by the other party has arrived, consents, upon his request, to extend the time of performance, he must be presumed to know that the other party relies upon the consent, and until his given notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed. The principle of equitable estoppel applies.^ § 649. One party acting through a partnership. — Where one party agrees to furnish another with certain articles, and while the contract is in force, the former forms a partnership with a third party Avithout the consent of the other party, articles subsequently furnished by the partnership, as between the parties, must be regarded as furnished by the original party, acting through the partnership in pursuance of the contract. This is not a case w^here a stranger to a contract voluntarily undertakes to perform it. After the formation of the partner- ship the articles w^ere furnished, in legal contemplation, by the original party, acting through the partnership of which he wa3 a member.^ 2. Thomson v. Poor, 147 N. Y. McLaine. 10 Bing. 482; Leather 402, 42 N. E. 13. Co. v. Hieronimous, L. R. 10 Q. B. 3. Thomson v. Poor, 147 N. Y. 140. 402, 42 N. E. 13; Longfellow v. 1. Meyer v. Estes, 164 Mass. 457, Moore, 102 111. 289; Pierrepont v. 41 N. E. 683, 32 L. R. A. 283. Barnard, 6 N. Y. 279; Hoadley v. 713 §§ 650, 651 TEEMINATION OF CONTKACTS. dl. 22 § 650. Work must be performed in a workmanlike manner. — The law implies an undertaking on the part of the party performing the work that he performs it in a reasonably work- manlike manner, having regard to the general nature and kind of work and the purpose for which it was manifestly designed.^ And the defendant, in the same action, is entitled to have deducted from the contract price, by way of recoupment, all damages arising from a disregard of the obligations imposed by law in the performance of the contract; as well as those occasioned by a violation on the part of the plaintiff of the express terms of the contract.^ The right to recoupment is extensive with the duties and obli- gations of the parties respectively, both to do and forbear. It extends to damages resulting from negligence where care, activ- ity and diligence are required, and from ignorance where knowledge and skill are required.^ § 651. Receiving benefits of services. — If the party doing the work 'has done so in good faith, although the services have not been rendered according to the obligations imposed by the terms of the agreement and created by the law, he may recover for his services the contract price after deducting so much as they are worth less an account of such imperfect performance of the contract, where the other party has received the benefits of the services performed under the agreement.* In other words, the party performing is entitled to recover the fair value of his services, having regard to and not exceeding the contract price after deducting the damages sustained by the defendant on account of the breach of the stipulation in the contract.^ 1. Thomas Fruit Co. v. Start, 989; Gleason v. Smith, 9 Cush. 107 Cal. 206, 40 P. 336; Hattin v. (Mass.) 484, 57 Am. Dec. 62; Moul- Chase, 88 Me. 237, 33 A. 989. ton v. McOwen, 103 Mass. 587; 2. Hattin v. Chase, 88 Me. 237, Morgan v. Hefler, 68 Me. 131; 33 A. 989. Beach v. Mullin, 34 N. J. L. 343 .: 3. Austin V. Foster, 9 Pick. Wade v. Haycock, 25 Pa. St. 382; (Mass.) 341; Cota v. Mishow, 62 Parker v. Piatt, 74 111. 430; War- Me. 124. ren v. Stoddart, 105 U. S. 224; 4. White V. Oliver, 36 Me. 92; Dunlap v. Hand, 26 Miss. 460. Hattin v. Chase, 88 Me. 237, 33 A. 5. Blood v. Wilson, 141 Mass. 714 Ch. 22 PERPORMANCB. §§ 652-654 § 652. Partial payment as evidence of acceptance of work. — A partial payment made ^vith full knowledge of the condition of the work, and without objection to it, is competent evidence with all the other facts and circumstances, as having some ten- dency to show waiver of defects in the work and acceptance ; but it is not conclusive. Hence, it is erronenous to instruct a jury that a partial payment is ipso facto, such an acceptance and waiver as will preclude the defendant from claiming dam- ages by way of recoupment for violation of the contract on the part of the plaintiff in construction of the work.® § 653. Sufficiency of performance. — If there be no wilful departure from the contract, or omissions in essential parts, and the laborer has honestly and faithfully performed the contract in all its material and substantial features, this is a sufficient performance, as a mere technical, inadvertent and unimportant omission or defects will not be considered a breach of the con- tract.^ But the work must not be defective in essential parts, and the contract substantially fulfilled. Thus, where a party agrees in writing to pay for materials which another should use in finishing a job, before a recovery can be had, it must be shown that the materials Avere furnished and nsed in finishing the work.^ And completion of work to the satisfaction of a party as mentioned in a contract, means, in many States, completion of work in accordance with the contract in such manner that the party ought to be satisfied.^ § 654. Manufacturing articles according to sample — Deliv- ery. — When articles are manufactured according to sample, 25, 6 N. E. 362; Powell v. Howard, 1. Sinclair v. Talmadge, 35 Barb. 109 Mass. 192. (N. Y.) 602; Hattin v. Chase, 88 6. Button V. Russell, 55 Mich. Me. 237, 33 A. 989. See, also, 478, 21 N. W. 899; Flannery v. Grannis v. Quintain, 69 Fed. Rep. Rohrmayer, 46 Conn. 558; Davis v. 206; Gubbins v. Lautenschlager, School Dist., 24 Me. 349; Andrews 74 Fed. Rep. 160. V. Portland, 35 Me. 475; White v. 2. Heath v. Flannery, 58 HI. Oliver, 36 Me. 92; Hattin v. Chase, App. 300. 88 Me. 237, 33 A. 989 ; Moulton v. 3. Keeler v. CliflFord, 62 111. App. McOwen, 103 Mass. 587. 64. Y15 §§ 654, 655 TEEMINATION OF CONTRACTS. CL. 22 and the contract specifies no place of delivery, the articles will be delivered at the manufacturer's place of business or factory. The manufacturer, on completion of the goods, must notify the other party and give him an opportunity to inspect the articles at the place they were manufactured to determine whether they correspond with the provisions of the contract. If they do the purchaser must take them and pay for them.^ A notice that the articles were manufactured and a demand of payment was an offer to deliver upon payment and was suffi- cient. After doing this the manufacturer had done all that could properly be required to impose upon the defendant the duty of taking and paying for the articles.^ § 655. 'Substantial performance. — A party, in order to re- cover on an alleged performance by him of all the terms of a contract must show a substantial compliance with each require- ment thereof, where there has been neither a waiver nor accept- ance of benefits thereunder by the other contracting party ,^ unless he can allege and prove a legal excuse of being prevented by the employer, the act of God, or the law, but not otherwise.^ If he cannot do this, and the defendant has not accepted the work nor the benefits, he cannot recover as there is not a sub- stantial performance of the contract.^ Where there is a substantial, though not a technical perform- ance, and the party has received and retained the benefits of such performance, the defendant cannot insist on such tech- nical failure of performance as a defense, but will be limited 4. Bliss Co. V. Gas Light Co., 3. Smith v. Sheltering Arms, 89 149 N. Y. 300, 43 N. E. 859. Hun, 70, 35 N. Y. S. 62; Cahill v. 5. Canda v. Wick, 100 N. Y. 127, Heuser, 2 App. Div. 292, 37 N. Y. 2 N. E. 381. S. 736, 73 N. Y. St. 450; Taylor v. 1. Omaha Consolidated Vinegar Marcum, 60 Minn. 292, 62 N. W. Co. V. Burns, 44 Neb. 21, 62 N. W. 330; Chandler v. State, 38 Ark. 301; Coates v. Sangston, 5 Md. 197; Malbon v. Birney, 11 Wis. 121. 107; Hovey v. Pitcher, 13 Mo. 124; 2. Estep V. Fenton, 66 111. 467; Loren v. Hillhouse, 40 Ohio St. Taylor v. Beck, 13 111. 376; Smith 302. V. Gugerty, 4 Barb. (N. Y.) 614. 716 Ch. 22 PERFOKMANCE. §§ 655-657 to alleging and proving damages by way of counterclaim or recoupment in the action brought to recover payment for the performance.* If the owner acquiesces in a partial breach, the contractor may recover on a quantum meruit for Avhat he has done." But the mere fact that the owner occupies the building after a breach by the contractor, is not a waiver of the breach.® § 656. Matters excusing nonperformance. — Matters may occur which will excuse nonperformance of the contract. Ira- possibility of performance is, in general, no answer to an action for damages for nonperformance, provided the contingency was such that the promisor should have foreseen and provided against when he made the promise, nor will it permit a recovery for part performance of an entire contract. If, however, the impossibility arises, even indirectly, from the acts of the prom- isee, it is a sufficient excuse for nonperformance.'^ This is upon the principle that he who prevents a thing from being done may not avail himself of the nonperformance, which he himself occasioned.^ One party may so act as to compel the other party from performing. Thus, where a party hires an- other to take and care for his cattle, and the latter steals them, the former is not obligated to perform but may begin suit at once for the cattle.^ § 657. Implied condition as to contingent impossibility of performance. — It is well settled that where there is a positive 4. Leeds v. Little, 42 Minn. 414, well, 43 Minn. 357, 45 N. W. 845, 44 N. W. 309 ; O'Dea v. Winona, 41 9 L. R. A. 52 and note. Compare Minn. 424, 43 N. W. 97; Taylor v. Presbyterian Church v. Paint Co., Marcum, 60 Minn. 292, 62 N. W. 66 Md. 598, 8 A. 752. 330; Hattin v. Chase, 88 Me. 237, 1. United States v. Peck, 102 U. 33 A. 989; Moulton v. McOwen, S. 64; Gallagher v. Nichols, 60 N. 103 Mass. 587; Blood v. Wilson, Y. 438; European, etc. Mail Co. v. 141 Mass. 25, 6 N. E. 362; Morgan Packet Co., 30 L. J., C. P. 247. V. Hefler, 68 Me. 131. 2. West v. Blakeway, 2 Man. & 5. Dermott v. Jones, 23 How. Gr. 751. (U. S.) 220. 3. Cassidy v. Cattle Co., 58 III. 6. Smith V. Brady, 17 N. Y. 173, App. 39. 72 Am. Dec. 442; Elliott v. Cald- 717 §§ 657, 658 TEKMINATION OF CONTRACTS. C5l. 22 contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in conse- quence of unforeseen accidents, the performance of his contract has become unexpectedly burdensome or even impossible.^ But this rule is only applicable when the contract is positive and absolute, and not subject to any condition, either express or implied. Hence, where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for fulfill- ment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foun- dation of what was to be done, then in the absence of any ex- press or implied warranty that the thing shall exist, the con- tract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing, without default of the contractor.^ Therefore, under the implied condition of a contract for work, the parties are to be excused from performance if a certain event happens, and by reason of the happening of the event it becomes impossible to fully perform the contract ; and, hence, there may be a 'pro rata recovery for part performance by the one party, at least when what has been done is of benefit to the other.^ Thus, a sub-contractor can recover pro rata for his work done, from the contractor to build a railroad, where the sub-contractor has been stopped by reason of nonconsent of grantor of primary contract* § 658. Implied condition of contract. — Contracts may be subject to conditions express or implied. Thus, the sale and 1. Reichenbach v. Sage, 13 2. Taylor v. Caldwell, 32 L. J., Wasli. 364, 43 P. 354, 52 Am. St. Q. B. 164. Rep. 51; Taylor v. Caldwell, 32 L. 3. Dolan v. Rodgers, 149 N. Y. J., Q. B. 164; Dolan v. Rodgers, 149 489, 44 N. E. 167. N. Y. 489, 44 N. E. 167. 4. Dolan v. Rodgers, 149 N. Y. 489, 44 N. E. 167. 718 Ch. 22 PEEFOBMANCE. §§ 658, 659 delivery of specified articles of personal property, under such circumstances that the title did not vest in the vendee, may be avoided and the vendor need not fulfill the contract where the property is destroyed by accident, without the fault of the ven- dor; and the latter is not liable to the vendee in damages for nondelivery, because the law implied a condition that the prop- erty should continue to exist.^ So contracts for personal services requiring skill, Avhich can only be performed by the person named, are not absolute obli- gations, under all circumstances, but subject to the implied con- dition that the person designatel shall be able to perform at the time specified. Because both parties contracted as a matter of law that the party should continue to be able to perform, other- wise he would be excused.^ And so where a party guarantees the payment of dividends by a corporation, he is excused from performing if the State dissolves the corporation before the time designated to pay dividends expires, because, if after a contract is made, the law interferes and makes a subsequent performance impossible, the party is excused from performing.^ § 659. When implied condition attaches to the contract. — The continued existence of the means of performance is an im- plied condition, and the parties necessarily intended an excep- tion which operates to carry out the intention of the parties under most circumstances and is just* In England this rule relieves both parties from any obligation under an entire contract, with reference either to future or the past. In the United States the rule is that there may be a pro 1. Dexter v. Norton, 47 N. Y. field v. Biackett, 56 Me. 121; 62, 7 Am. Rep. 415. Scully v. Kirkpatrick, 79 Pa. St. 2. Spalding V. Rosa, 71 N. Y. 40, 324, 21 Am. Rep. 55; Shear v. 44, 27 Am. Rep. 7. Wright, 60 Mich. 159, 26 N. W. 3. Lorillard v. Clyde, 142 N. Y. 871; Dexter v. Norton, 47 N. Y. 62, 456, 462, 37 N. E. 489, 24 L. R. A. 7 Am. Rep. 415; Dolan v. Rodgers, 113. 149 N. Y. 489, 44 N. E. 167; Ap- 4. Walker v. Tucker, 70 111. 527 ; pleby v. Myers, 36 L. J., C. P. 331, Thomas v. Knowles, 128 Mass. 22; 336; Robinson v. Davison, 40 L. J. 719 §§ 659, 6601 TERMINATION OF CONTRACTS. C!h. 22 rata recovery for part performance by the one party, at least where what has been done is of benefit to the other.^ Under an implied condition of a contract, that the parties are to be excused from performance if a certain event happens, and by reason of the happening of the event it becomes impossible to that which was contemplated by the contract, there is an im- plied assumpsit for what has properly been done by either of them.^ § 66o. Failure of performance by acts of the promisor. — Where the owner of a building has by positive acts prevented the full performance upon the part of the contractor, the latter will have a lien for materials furnished and labor performed, so far as he has in good faith proceeded under the contract.^ So de- fendant cannot defeat recovery on the ground that the contract was entire and that the plaintiff did not fully perform it, where the plaintiff's failure was caused by the defendant's failure to carry out his part of the contract.^ In general, where a party's failure to fully perform the con- tract is due to the fault of the other party, or act of God, or of law, without fault of the other party, he can recover what hia services are reasonably worth, and the defendant is not entitled to damages for the plaintiff's nonperformance.^ Ex. 172; Howell v. Coupland, L. R. 460, 43 P. 649; Howes v. Wire 1 Q. B. D. 258; Makin v. Watkin- Works Co., 46 Minn. 47, 48 N. W. son, L. R. 6 Eq. 25. 448; Charnley v. Honig, 74 Wis. 5. Dolan v. Rodgers, 149 N. Y. 163, 42 N. W. 220; Smith v. Mor- 489, 44 N. E. 167; Jones v. Judd, ris, 120 Mass. 63; Merchants', etc. 4 N. Y. 412; Cleary v. Sohier, 120 Bank v. Dashiell, 25 Gratt. (Va.) Mass. 210; Butterfield v. Byron, 625. 153 Mass. 517, 27 N. E. 667, 12 L. 2. Bowdish v. Briggs, 5 App. R. A. 571 and note, 25 Am. St. Rep. Div. 592, 39 N. Y. S. 371. 654; Niblo v. Binsse, 1 Keyes (N. 3. Theobald v. Burleigh, 66 N. H. Y.), 476; Cook v. McCabe, 53 Wis. 574, 23 A. 367; Melville v. DeWolf, 250, 10 N. 507, 40 Am. Rep. 765; 4 El. & Bl. 844; Mill Dam Foundry Schwartz v. Saunders, 46 111. 18. v. Hovey, 21 Pick. (Mass.) 417; 6. Butterfield v. Byron, 153 Mass. Walker v. Fitts, 24 Pick. (Mass.) 517, 27 N. E. 667, 12 L. R. A. 571 191; Jones v. Judd, 4 N. Y. 411; and note, 25 Am. St. Rep. 634. Heine v. Meyer, 61 N. Y. 171; Har- 1. Justice V. Elwert, 28 Oreg. vey v. Coffin, 44 N. H. 563. 720 Ch. 22 PERFOKMANCE. §§ 661-663 § 66i. Matters excusing delay. — Where the contract is so framed that it binds the party contracting to do the work, it im- plies a correlative obligation on the other party to do what is necessary on his part to enable the party so contracting to fulfill his part of the contract/ So, if the owner of the building is the cause of the delay in completing the work, he cannot object.^ And a written contract for doing the work within a specified time may be supplemented by a subsequent oral agreement as to the time when the work shall be finished.^ If the contract is absolute, delay cannot be excused by bad weather.* § 662. What constitutes breach. — Trivial defects in a build- ing is no defense, nor the refusal of the owner to pay the con- tractor a disputed balance.^ Where a note is given for work, a failure of the consideration will avoid it.^ But where a sale of materials provides for deliv- ery in installments and payment for each installment on deliv- ery, a refusal to deliver an installment until a former install- ment has been paid does not constitute a breach of the contract on the part of the seller.^ § 663, Owner of building promising to see seller of mate- rials paid. — Where the contractor has failed to pay for mate- rials and the material-man refuses to deliver any more, a prom- ise by the owner of the building to see the material-man paid if he will deliver the materials, is a valid promise, if acted upon 1. Hudson Canal Co. v. Coal Co., 4. Cochran v. Railroad Co., 131 8 Wall. (U.S.) 288; Churchward v. Mo. 607, 33 S. W. 177; Reichen- Reg, L. R. 1 Q. B. 195; Currier v. bach v. Sage, 13 Wash. 364, 43 P. Railroad Co., 34 N. H. 498. 354, 52 Am. St. Rep. 51. 2. Willis V. Webster, 1 App. Div. 5. Greenwald v. Hahn, 176 Pa. 301, 37 N. Y. S. 354, 72 N. Y. St. St. 37, 34 A. 972. 743; Davis v. Light Co., 57 Minn. 6. Slater v. Foster, 62 Minn. 402, 59 N. W. 482, 47 Am. St. Rep. 150, 64 N. W. 160. 622. 7. Raabe v. Squire, llSN.Y. 81, 3. Manistee Iron Works Co. v. 42 X. E. 516. See, also. Bean v. Lumber Co., 92 Wis. 21, 65 N. W. Bunker, 68 Vt. 72, 33 A. 1068. 863; Thomson v. Poor, 147 N. Y. 402, 42 N. E. 13. 721 §§ 663, 664 TERMINATION OF CONTRACTS. Cik. 22 bj the promisee;^ but the refusal of the contractor to pay for the materials is not a breach of contract by the material-man. The material-man having relied upon the promise of the owner of the building, the latter was liable, as the promise thus made was original and founded upon a new consideration, that of the materials furnished after the promise. Because where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new con- sideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.' § 664. Acceptance and waiver — The contractor may recover for his work, though he has not complied with the contract, when the owner of the building has accepted the work as com- plete or waived the time for completion. But a mere ordering of extra work will not absolve the builder from the consequence of a delay in completing the work in accordance with the terms of his contract.^ But taking possession of a building by the owner and acceptance of the work does not waive the owner's right to recoup such damages as he may have sustained because of the delay, if the delay was not caused by him.^ But one who accepts the work as complete cannot complain that the work was not performed.^ A mere partial payment is not of itself a waiver of defects in the work.* But when the work is accepted with its known de- 8. Raabe v. Squire, 148 N. Y. 81, 2. Snell v. Cottingham, 72 111. 42 N. E. 516. IGl; Padock v. Stout, 121 111. "571, 9. White V. Rintone, 108 N. Y. 13 N. E. 182; Filt v. Smith, 62 111. 222, 15 N. E. 318; Bayles v. Wal- App. 637; Nibbe v. Brauhn, 24 111. lace, 56 Hun (N. Y.), 428, 10 N. Y. 268. S. 191 ; Ackley v. Parmenter, 98 N. 3. Elwood, etc. Oil Co. v. Baker, Y. 425, 50 Am. Rep. 693; Prime v. 13 Ind. App. 576, 41 N. E. 1063; Koehler, 77 N. Y. 91; Wilks v. Hutchins v. Webster, 165 Mass. Rich, 80 N. Y. 269, 36 Am. Rep. 439, 43 N. E. 186. 615. 4. Hattin v. Chase, 88 Me. 237, 1. Harris v. Trickett, 57 111. 33 A. 989. App. 515. 722 Ch. 22 PERFOKMANCE. §§ 664, 665 fects, the acceptor waives his right to recover for such deficien- cies. Thus, if the trustees of a church accept defective pews and place them in the church, knowing that they do not conform to the specifications, they are charged with knowledge of such nonconformity.^ A party who accepts a reduced salary for a long time, waives his right to receive the salary provided in the contract.^ So where a vendor accepts a draft, not according to the agreement, and retains it for a reasonable time, he waives his right to de- mand a draft stipulated in the agreement.^ § 665. Risks during performance. — Where an entire con- tract is entered into to do work, and an accident happens with- out the fault of either party, the contractor must bear the loss.* But if the contract is not entire the rule is different. Thus, where a point is reached in the performance of a contract to put work into a building, at which the party doing the work is en- titled to be paid, he can recover the money thus earned, not- withstanding the work done and the building into which it was put is destroyed by fire or other accident.^ So, in case of a partial performance of a contract to lath and plaster a building which was destroyed by fire while the work was in progress, without the fault of either party, the contractor may recover the reasonable worth of the work and material fur- nished, under the appropriate common count.^" So, where a party has contracted to furnish the iron work for a building 5. Harrisburg Lumber Co. v. 30 Ct. CI. 31; Leavitt v. Dover, Washburn, 29 Oreg. 150, 44 P. 390. 67 N. H. 94, 32 A. 156, 68 Am. See, also, Stewart v. McQuade, 4S St. Rep. 640; Wisconsin v. Thomp- Pa. St. 191. son, 94 Iowa, 607, 63 N. W. Rep. 6. Brighton v. Railroad Co., 103 346; Rothwell v. Dean, 60 Mo. App. Mich. 420, 61 N. W. 550. 428; Tompkins v. Dudley, 25 N. Y. 7. Ryalls v. Moody, 102 Ala. " 272, 82 Am. Dec. 349. 519, 15 So. 240. 9. Siegel v. Eaton, 60 III. App. 8. Norton v. Fancher, 92 Hun, 639; Cleary v. Sohier, 120 Mass. 463, 36 N. Y. S. 1032, 72 N. 210. See, also, Wilson v. Pick- Y. St. 434 ; Harmony v. Bingham, wick Co., 30 111. App. 333. 12 N. Y. 99, 62 Am. Dec. 142 and 10. Cleary v. Sohier, 120 Mass. note; Satterlee v. United States, 210. 723 §§ 665, 666 TEKMINATION OF CONTEACTS. dl. 22 "wliich was subsequently destroyed by fire, after lie bas manu- factured the iron, be can recover; furnishing the iron was dis- tinct from that for putting it in the building. ^^ § 666. Part performance. — Part performance does not com- ply with the contract. So, where there has not been a substantial compliance on the part of the contractor with the building con- tract, nor an acceptance of the work by the other party, the con- tractor cannot recover in an action on the specific contract, the contract price less allowances for the defects.^ A part per- formance of an entire contract does not comply with the con- tract and the contractor cannot recover for part performance,^ unless he was prevented from performing by the other con- tracting party, or so trifled with that he could legally declare the contract at an end.^ But if the other party accepts the work and the materials received are of any value or benefit to the other party, he is answerable to the amount whereby he has been benefited.^ Where the contract is entire, and there is a failure on one part to perform the service which is stipulated for, and no ex- press or implied waiver on the other part of the strict letter of the contract, the condition must be substantially performed be- fore a recovery can be had on the common counts for labor and materials.^ When a contractor has substantially performed a contract, but fails in some minor particulars, he can recover, according to one line of cases, the contract price less the difference between 11. Rawson v. Clark, 70 111. 656. 449; Smith v. Brady, 17 N". Y. 173, 1. Hulst V. Asso., 9 S. Dak. 144, 72 Am. Dec. 442. 68 N. W. 200. 4. Norris v. School Dist., 12 Me. 2. Martin v. Schoenberger, 8 293, 28 Am. Dec. 18^; Pinches v. Watts. & S. (Pa.), 367; Gillespie Church, 55 Conn. 183, 10 A. 264; Tool Co. V. Wilson, 123 Pa. St. 19, Hayward v. Leonard, 7 Pick. 16 A. 36; Hartman v. Meighan, (Mass.), 18, 19 Am. Dec. 268 and 171 Pa. St. 46, 33 A. 123. note; Hulst v. Asso., 9 S. Dak. 144, 3. Hartman v. Meighan, 171 Pa. 68 N. W. 200; Adams v. Crossly, 48 St. 46, 33 A. 123; Dauchey v. Ind. 153. Drake, 85 N. Y. 407; Glacius v. 5. Hajrward v. Leonard, 7 Pick. Black, 50 N. Y. 145, 10 Am. Eep. (Mass.) 181, 19 Am. Dec. 268 and Y24 Ch. 22 PERFORMANCE. §§ 666,667 the value of the hiiildin^ as completed and its value as it should have been completed ; and, according to another class of deci- sions, the contract price, less the sum it would take to complete the building in accordance with the contract.® However, if the default is wilful, the contractor cannot recover even for a sub- stantial performance.^ ARTICLE III. Specific Performance. Section 667. Specific Performance — When Enforced — Contracts to Devise. 668. Requisites of Contract — Building Contracts. 669. Mutuality in Obligations and Remedy. 670. Contracts as to Personal Property. 671. When there is an Adequate Remedy at Law. 672. Change of Condition of One of the Parties. 673. Sale of Patent Rights. 674. Sale of Personalty. 675. Sale of Chattels Having a Special Value. 676. Supervision of the Court — Continuous Acts. 677. Contracts Involving the Exercise of Skill, Personal Labor and Cultivated Judgment. 678. Tender of Performance. 679. Time of Performance. 680. Contracts Subject to Conditions. 681. Part Performance. § 667. Specific performance — Contracts to devise — When enforced. — In some cases damages for a breach of the contract note; Olmstead v. Beale, 19 Pick. peck, 127 Pa. St. 446, 17 A. (Mass.), 528; Jennings v. Camp, 1100; Woodward v. Fuller, 80 N. 13 Johns. (N. Y.), 99, 7 Am. Dec. Y. 312; Leeds v. Little, 42 Minn. 867; Kittle v. Harvey, 21 Vt. 301 414, 44 N. W. 309; Gleason v. Wadligh V. Sutton, 6 N. H. 15, 23 Smith, 9 Cush. (Mass.), 484, 57 Am. Dec. 704; Burn v. Miller, 4 Am. Dec. 62; Cullen v. Sears, 112 T. R. 745; Chapel v. Hicks, 2 Cr. Mass. 299; Maulton v. McOwen, & M. 214. 103 Mass. 587; Hulst v. Associa- 6. Stillwell, etc. Co. v. Phelps, 130 tion, 9 S. Dak. 144, 68 N. W. 200. U. S. 520, 9 S. Ct. 607; Glacius v. 7. Scheible v. Klein, 89 Mich. Black, 50 N. Y. 145, 10 Am. Rep. 376, 50 N. W. 857; Gill v. Vogler, 449; Pepper v. Philadelphia, 114 52 Md. 663; Gillespie Tool Co. v. Pa. St. 96, 6 A. 899; Sticker v. Ove- Wilson, 123 Pa. St. 19, 16 A. 56. 725 § 667 TERMINATION OF CONTEACTS. Ch. 22 do not furnish a jnst remedy. The remedy of specific perform- ance of a contract is purely equitable, given as a substitute for the legal remedy of compensation whenever the legal remedy is inadequate or impracticable. The principle which is material to be considered is that the court gives specific performance, instead of damages, only when it can by that means do more perfect and complete justice ;^ it is within the discretion of the court where it will take jurisdiction.^ It is necessary, in order to give a court of equity jurisdiction that the contract shall be complete and certain as well as fair, just and equal in all its parts, and that it be founded on a valu- able consideration. It must be capable of being specifically enforced, and be of a nature that the court can decree its com- plete performance against both parties without adding to its terms. It must appear that the plaintiff had no adequate remedy at law, and that a refusal to perform the contract would be a fraud upon him.^ An injunction restraining the breach of a contract is a nega- tive specific performance of that contract, and the jurisdiction of equity to gi'ant such injunction is substantially co-incident with its jurisdiction to compel a specific performance. And generally, courts of equity will not restrain by injunction the violation of contracts of a character where they cannot decree specific performance ;* and courts will not enforce specific per- 1. Young Lock Nut Co. v. Mfg. 3. Modisett v. Johnson, 2 Black. Co. (N. J.), 34 At. Rep. 947; Ten (Ind.) 431; Ikerd v. Beavers, 106 Eyck V. Manning, 52 N. J. Eq. 47, Ind. 483, 7 N. E. 326; Louis- 27 A. 900; Hissam v. Parrish, 41 ville, etc. R. R. Co. v. Bodenschatz, W. Va. 686, 24 S. E. 600, 56 Am. 141 Ind. 251, 39 N. E. 703; Sey- St. Rep. 982; Campbell v. Potter, mour v. Delaney, 6 Johns. Ch. (N. 147 111. 576, 35 N. E. 364; Town- Y.) 222; Carberry v. Tannehill, 1 send V. Vanderworker, 20 D. C. Har. & J. (Md.) 224; Marble Co. 197; Gove v. Biddleford, 85 Me. v. Ripley, 10 Wall. (U. S.), 339; 393, 27 A. 264; Porter v. Water Atlanta, etc. R. R. Co. v. Speer, 32 Co., 84 Me. 195, 24 A. 814; Ameri- Ga. 550, 79 Am. Dec. 305; Adderly can Box Machine Co. v. Grossman, v. Dixon, 1 Sim. & St. 607. 61 Fed. Rep. 888, 10 C. C. A. 146, 4. Welty v. Jacobs, 171 111. 624, 21 U. S. App. 383. 49 N. E. 723, 40 L. R. A. 98. 2. Homan v. Stewart, 103 Ala. 644, 16 So. 35. 726 Ch. 22 PEEFORMANCE. § 667 formance of particular stipulations from the rest of the contract where they do not stand clearly by themselves, unaffected by other provisions.^ A party may, for a valuable consideration, renounce the abso- lute power to dispose of his property by will to a particular person, and such contract may be enforced either by an action for its breach against his personal representatives, or, in a proper case, by a bill for specific performance against his heirs, devisees or personal representatives.^ He can make a valid agreement binding himself to make a particular disposition of his prop- erty by will, and this contract may be enforced after his death, as though the deceased obligee were a party to the suit.^ The principle on which courts of equity undertake to enforce the execution of such agreements is referable to their jurisdiction over the subject of specific performance. The theory on which the courts proceed, is to construe such agreement, unless void under the statute of frauds, or for other reasons, to bind the property of the testator or intestate so far as to fasten a trust in favor of the promisee, and to enforce such a trust against the heirs and personal representatives of the deceased, or others holding under them charged with notice of the trust.* Such contract must not be unconscionable, inequitable, or unjust, for no court of equity will enforce specific performance of a con- tract of that character, as its enforcement rests in the sound dis- cretion of the court.^ But a contract in relation to the making of a will, which can have specific performance decreed, must be 5. Baldwin v. Fletcher, 48 Mich. 26; Taylor v. Mitchell, 87 Pa. St. 604, 12 N. 873. 518, 30 Am. Rep. 383; Fortescue v. 6. Johnson v. Hubbell, 10 N. J. Hennah, 19 Ves. 67. Eq. 332, 66 Am. Dec. 773 and note; 8. Rivers v. Rivers, 3 Des. Eq. Wriglit V. Tinsley, 30 Mo. 389; (S. Car.), 190, 4 Am. Dec. 609; Parsell v. Stryker, 41 N. Y. 480. Jones v. Martin, 3 Anstr. 882; Pod- 7. Manning v. Pippen, 80 Ala. more v. Gunning, 7 Sim. 644; 257; Maddox v. Row, 23 Ga. 431, Emery v. Darling, 50 Ohio St. 160, 68 Am. Dec. 535; Wallace v. Long, 33 N. E. 715. 105 Ind. 525, 5 N. E. 666, 55 Am. 9. Hamilton v. Harvey, 121 HI. Rep. 222; Frisby v. Parkhurst, 29 469, 13 N. E. 210, 2 Am. St. Rep. Md. 58, 96 Am. Dec. 503; Leonard- 118; Crandall v. Wellig, 166 HI. son V. Hulin, 64 Mich. 1, 31 N. W. 233, 46 N. E. 755. 727 §§ 66T, 668 TEKMINATION OF CONTKACTS. Cih, 22 absolute in its terms. So, if a contract to devise is in the alter- native, or its construction doubtful, it will not be specifically enforced.^" The party seeking specific performance of the contract for the conveyance of land must perform his part of it. If he re- fuses or neglects to do so, he cannot compel specific perform- ance.^^ Thus, where husband and wife mutually agree as to the disposition of their property, and one of them dies, third parties in interest can compel specific performance as to the surviving spouse.^^ One party cannot annul such a contract without the consent of the other ; its obligations cannot be impaired.^^ § 668. Requisites of contract — Building contracts. — In order that a contract may be specifically enforced in a court of equity, the contract must be upon a valuable consideration, rea- sonably certain as to its subject-matter, its stipulations, its pur- poses, its parties, and the circumstances under which it is made ; it must be mutual in its obligations and its remedy.^ A party's right to the aid of the court does not depend upon his subse- quent offer to perform the contract on his part, but upon its original obligatory character.^ The remedy by specific performance is not a matter of strict right but of sound judicial discretion, and will be granted or denied as the justice and right of the particular case shall seem to the court, on full consideration of the rights and equities of the parties, to require.^ 10. Barrett v. Geisinger, 148 111. 1. Stokes v. Stokes, 148 N. Y. 98, 35 N. E. 354. 708, 43 N. E. 989; Louisville, etc. 11. Weingaertner Probst, 115 111. K. E. Co. v. Bodenschatz, 141 Ind. 412, 5 N. E. 885; Cronk v. 251, 39 N. E. 703; Hissam v. Par- Trumble, 66 111. 428. rish, 41 W. Va. 686, 24 S. E. 600, 12. Carmichael v. Carmichael, 5U Am. St. Rep. 892. 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 2. Bodine v. Glading, 21 Pa. St. 596, 16 Am. St. Rep. 528 and note. 50, 59 Am. Dec. 749; Duvall v. 13. People V. Supervisors, 47 111. Myers, 2 Md. Ch. 401. 256; Myers v. Gross, 59 111. 436; 3. Fry Spec. Perf. 286; Ten Eyck Bird V. Pope, 73 Mich. 483, 41 N. v. Manning, 52 N. J. Eq. 47, 27 A. W. 514. 900. Y28 Ch. 22 PERFORMANCE. § 668 Specific performance of a contract will not be decreed under the following conditions: 1. As against one party in favor of another who has disre- garded his own reciprocal obligations in the matter/ 2. Nor where the duties to be fulfilled by the party are con- tinuous and involve the exercise of skill, personal labor, and cultivated judgment.^ 3. Nor where there is a want of mutuality in the contract.' 4. Nor where the party has a complete remedy at law.'' Under the fourth head especially come building contracts. Equity has no jurisdiction to compel specific performance where there is an adequate remedy at law.^ But it is held that a con- tract for repairs can be specifically enforced.^ But it has been held that a lessor, leasing a building to be erected, must comply with his agreement after the building has been erected, and fur- nish lights and other apparatus, and that specific performance would be decreed.^" This decision is against the weight of authority. But specific performance will be decreed in cases where the owner of land agrees to build thereon in consideration of certain benefits or privileges. Thus, where A contracts to build on his own land, or on land in which he has a possessory interest, with B, the latter to be benefited materially by such building, or is to receive some material benefit by such building, 4 Electric Secret Service Co. v. Flight v. Bolland, 4 Russ. 298; Manuf. Co., 125 Mo. 140, 28 S. W. Gapen v. Gapen, 41 W. Va. 422, 23 486; Marble Co. v. Ripley, 10 Wall. S. E. 579. (U. 8.), 339; Young Lock Nut 7. Holley v. Anness, 41 S. Co. V. Manuf. Co. (N. J. Ch.), 34 Car. 349, 19 S. E. 646; Campbell At. Rep. 947. v. Patton, 147 111. 576, 35 N. E. 5. Grape Creek Coal Co. v. Spell- 364; Young Lock Nut Co. v. Manuf. man, 39 111. App. 630; Wilson v. Co. (N. J. Eq.), 34 At. Rep. 947. Railway Co., 9 Ch. App. 279; Port 8. Errington v. Aynesly, 2 Dick. Clinton, etc. R. R. Co. v. Railroad 692; Mastin v. Halley, 61 Mo. 196. Co., 13 Ohio, 544. 9. Paxton v. Newton, 2 Sm. & 6. Ten Eyck v. Manning, 52 N. Gif. 437; Beck v. Allison, 4 Daly J. Eq. 47, 27 A. SDO; Hissam v. (N. Y^), 14. Parrish, 41 W. Va. 686, 24 S. E. 10. Jones v. Parker, 163 Mass. 600, 56 Am. St. Rep. 892; Lumley 564, 40 N. E. 1044, 47 Am. St. Eep. V. Ravenscroft (1895), 1 Q. B. 683; 485. 729 §§ 668, 669 TEEMINATION OF CONTEACTS. C!ll. 22 or is to receive some privilege by reason of the building, and such benefit or privilege is part consideration of the contract, specific performance will be decreed if A refuses to carry out the contract." But in this class of cases, the contract will not be decreed specifically performed, if the terms are uncertain, indefinite and vague. ^ Neither will it be decreed if it violates the statute of frauds.^^ And specific performance will be de- creed where there are continuing duties to be performed. Thus, a railroad company will be compelled to permit another com- pany to its tracks as per agreement.^* Ordinary contracts to perform labor or work will not be specifically enforced, as there is an adequate remedy at law, for the injured party may at once hire other parties to complete the building. But where a party is in possession of land and contracts with another to build on that land, a consideration being given, and the terms of the contract are clear and defi- nite, a court of equity wnll decree specific performance.^^ Thus, where a party conveyed land to a railroad corporation, which agreed to build a railroad on the premises, and part of the con- sideration for such conveyance was an agreement by the railroad corporation to build certain definite crossings, the railroad acted but not in accordance with the agreement, and the court decreed specific performance.^® § 66g. Mutuality in obligations and remedy. — A contract to be specifically performed, must be mutual, so that at the time of execution it might have been enforced by either of the parties against the other. ^ Whenever, therefore, whether from personal 11. Pembroke v. Thorpe, 3 Swan. 13. Halsten v. Savannah, etc. 437; Price v. Mayor, 4 Hare, 506; R. R. Co.. 51 Ga. 199. Sanderson v. Railroad Co., 11 Beav. 14. Joy v. St. Louis, 138 U. S. 1, 497; Rindge v. Baker, 57 N. Y. 11 S. Ct. 246. 209, 15 Am. Rep. 475; Gregory v. 15. Rindge v. Baker, 57 N. Y.' Ingwersen, 32 N. J. Eq. 199; Ran- 209, 15 Am. Rep. 475. dall V. Latham, 36 Conn. 48; Will- 16. Sanderson v. Railroad Co., ard V. Ford, 16 Neb. 543, 20 N. 859. 11 Beav. 4, 97. 12. Brace v. Wehnert, 25 Beav. 1. Louisville, etc. R. R. Co. v. 358; Stanton v. Singleton, 126 CaL Bodenschatz, 141 Ind. 251, 39 N. E. 647, 59 P. 146. 703; Benedict v. Lynch, 1 Johns. 730 Ch. 22 PEKFORMANCE. § 669 incapacity, the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from difficulty attending its execution in the former.^ Hence, an infant cannot enforce a contract by specific per- formance, if the contract cannot be enforced against him f the same rule applies to a man of unsound mind.* So where a husband agrees to exchange land belonging to his wife for land of another party, and the title to the land which the husband agreed to convey is still in the wife when the hus- band sues, and also when decree is to be pronounced, no decree of specific performance can be made,^ because the right to the remedy is not reciprocal. And so it is, as a general rule, that specific performance will not be decreed in any case where mutuality of obligation and remedy does not exist. But this general rule is subject to ex- ceptions. Thus, a covenant to renew a lease will be enforced against a lessor, though the lessee is under no reciprocal obli- gations to accept an additional term.^ And so where an optional or unilateral contract to convey rests upon a sufficient consideration to make it obligatory, the contract may be specifically enforced. Thus, if the lessor, in the lease, agrees to convey the demised premises to the lessee at a future time, at a fixed price, the lessee not agreeing to pur- chase, the latter can enforce specific performance against the Ch. (N. Y.) 370, 7 Am. Dec. 4S4 2. Hissam v. Parrish, 41 W. Va. and note; Adderley v. Dixon, 1 686, 24 S. E. 600, 56 Am. St. Rep. Sim. & St. 607; Ten Eyck v. Man- 892. ning, 52 N. J. Eq. 47, 27 A. 900; 3. Flight v. Bolland, 4 Russ. Waring v. Railway Co.; 7 Hare, 298. 481, 492; Van Doren v. Robinson, 4. Gapen v. Gapen, 41 W. Va. 16 N. J. Eq. 256; Beard v. Lin- 422, 23 S. E. 579. thicum, 1 Md. Ch. 345; Duval v. 5. Luce v. Deitz, 46 Iowa, 205; Myers, 2 Md. Ch. 401, 405; Morris Ten Eyck v. Manning, 52 N. J. Eq. V. Fox, 45 Fed. Rep. 406; Lawren- 47, 27 A. 900. son V. Butler, 1 Sch. & L, 13, 18; 6. Van Doren v. Robinson, 16 N. Richards v. Green, 23 N. J. Eq. J. Eq. 256, 536, 537. Y31 §§ 669, 670 TERMINATION- OF CONTRACTS. CiL 22 lessor, the presumption being that the lessee agreed to pay a larger sum as rent, in consideration of the optional right to purchase, than he otherwise would have agreed to pay.'' But in all cases not resting on a similar basis as these, no specific per- formance will be decreed in any case when reciprocity of remedy does not exist.^ An option contract conveys no estate or interest in the property. It is but a continuing offer to sell, which may be accepted, and when accepted takes effect and not from the date of the offer. The contract takes effect upon its execution. But no interest in the remedy arises until acceptance of the offer by the vendee, after which, if the vendor dies or the buildings are destroyed, the ven- dee may nevertheless have performance of his contract, and the property destroyed must be restored or an abatement in the price be allowed. But this rule does not apply to option con- tracts, where the property is destroyed prior to an acceptance. The reason is this: A contract of purchase vests an interest in the vendee and the contract is executory, while in an option contract to purchase the vendee takes no interest, and the con- tract lacks mutuality imtil acceptance, and when accepted it does not relate back to the date of the offer, and has no more effect than if the offer had been made on the day of the accept- ance, and the election to accept the offer relates to the property as it is on the date of acceptance. Therefore, if, intervening the offer and acceptance, the improvements on the property are destroyed by fire or otherwise, equity will not decree specific performance of the contract with the improvements restored or with an abatement in price equal to the value of the lost improvements.^ § 670. Contracts as to personal property. — Although per- formance of a contract relating to personal property may not 7. Hawralty v. Warren, 18 N. J. 703 ; Carberry v. Tannehill, 1 Har. Eq. 124, 126, 90 Am. Dec. 613; & J. (Md.) 224; Ikerd v. Beavers, Lumley v. Ravenscroft (1895), 1 Q. 106 Ind. 483, 7 N. E. 326. B. 683. 9. Caldwell v. Frazier, 65 Kan. 8. Louisville, etc. R. R. Co. v. 24, 68 P. 1076, 35 Chi. L. News. Bodenschatz, 141 Ind. 251, 39 N. E. 390. 732 Ch. 22 PERFORMANCE. §§ 670, 671 be demanded as a right, it rests in the sound discretion of the court where compensation in damages would be difficult, if not impossible, owing to the fact that the matter was in the nature of an experiment, contracted for but not made, so that the re- sult, of necessity, could never be known/ But a court of equity will not entertain jurisdiction for spe- cific performance of an agreement respecting goods, chattels, stock, choses in action, and other things of a merely personal nature, where compensation in damages furnishes a complete and satisfactory remedy.^ § 671. When there is an adequate remedy at law. — A court of equity will not take jurisdiction to decree specific perform- ance of a contract when there is an adequate remedy by action at law for breach of the contract.^ For the breach of contracts the common law gives a single remedy. It requires the party in default to pay a sum of money as compensation. Where the contract broken is an obligation to pay money, that remedy amounts to specific performance. But there are many contracts for the breach of which such a remedy is inadequate, and this inadequacy has given rise to the jurisdiction of equity to en- force specific performance of contract, requiring the perform- ance or omission of the very acts agreed upon. The inadequacy of the legal remedy, by compensation in damages, is generally regarded as conspicuous in cases of agreements for the sale and purchase of lands, each parcel differs in some respects from others. Such property is usually bought because it possesses some feature which attracts by personal gratification and de- termines the purchaser to make some particular use of it. 1. In re Argus Co., 138 N. Y. 575, 22 S. E. 362 : Holley v. Anness, 557, 573, 34 N. E. 388; William v. 41 S. Car. 349, 19 S. E. 646; Camp- Montgomery, 148 N. Y. 519, 43 N. bell v. Patton, 147 111. 576, 35 N. E. 57. E. 364; Young Lock Nut Co. v. 2. Hissam v. Parrish, 41 W. Va. Manuf. Co. (N. J. Eq.) 34 At. Rep. 686, 24 S. E. 600, 56 Am. St. Rep. 947 ; Lane v. Crossman, 58 111. App. 892. 386. See, also, Laroussini v. Wes- 3. Ewing V. Litchfield, 91 Va. lein, 48 La. Ann. 13, 18 So. 704. 733 §§ 671-673 TEEMINATION OF CONTEACTS. Gh. 22 So when the contract for the sale of land provides for pay- ment of liquidated damages, and then the grantor arbitrarily refuses to make a deed, a court of equity will compel specific damages ; as the stipulated damages were not provided for such a breach, but for failure after bona fide effort to make title to the purchaser.* § 672. Change of condition of one of the parties. — Where there is a change of condition as to unfavorably affect one of the parties to a contract having a long time to run, this is no cause not to compel specific performance of the contract by the party so affected, unless such change had made performance so oner- ous that the enforcement will impose great hardship upon that party and will be of little or no benefit to the other party.^ A contract is to be judged at the time when it was executed, and if fair then, the fact that it has become a hard one for one of the parties, by the force of subsequent circumstances or changing events, will not necessarily prevent specific per- formance.® The question of the want of equality and fairness, and of the hardship of the contract, should, as a general rule, be judged of in relation to the time of the contract, and not by subsequent events ; and so mere decline in value since the date of the con- tract is not to be regarded by the court in cases of this nature.' § 673. Sale of patent rights. — Though contracts for the sale of rights under patents may affect only personal property, yet 4. O'Connor v. Tyrrell, 53 N. J. U. S. 564, 16 S. Ct. 163; Stuart v. Eq. 15, 30 A. 1061. Railway Co., 15 Beav, 513; Morti- 5. Columbia College v. Thacher, mer v. Capper, 1 Bro. C. C. 156; 87 N. Y. 316, 41 Am. Rep. 365; Jackson v. Lever, 3 Bro. C. C. 605; Murdfeldt v. Railroad Co., 102 N. Paine v. Mellor, 6 Ves. 349; Paine Y. 703, 7 N. E, 404. v. Hutchinson, L. R. 3 Eq. Cas. 257 ; 6. Prospect Park, etc. R. R. Co. Marble Co. v. Ripley, 10 Wall. (U. V. Railroad Co., 144 N. Y. 152, S.), 339. 39 N. E. 17, 26 L. R. A. 610; 7. Lee v. Kirby, 104 Mass. 420; Franklin Tel. Co. v. Harrison, 145 Revell v. Hussey, 2 Ball & Beat. U. S. 459, 12 S. Ct. 900; Union 280; Paine v. Mellor, 6 Ves. 349. ^ac. R. R. Co. V. Railroad Co., 163 734 Ch. 22 PEEFOEMANCE. §§ 673-675 equity may properly take jurisdiction of them and decree spe- cific performance.^ Rights acquired under letter patents for inventions are of such a peculiar nature that they are justly considered proper subject-matter for suits for specific perform- ance.^ But a contract to assign a patent will not he enforced where the patent is worthless.^ § 674. Sale of personalty. — A court of equity will not gener- ally decree specific performance of a contract for sale of per- sonalty, not because of its personal nature, but because the damages at law, calculated on the market price of the stock or goods or other personalty, are a complete remedy to the pur- chaser as the delivery of the goods or stock contracted for, inas- much as with the damages he may ordinarily purchase the same quantity of the like stock or goods.* But a court of equity will decree the execution of a trust of personalty.^ § 675. Sale of chattels having a special value. — But a court of equity will decree the delivery of specific articles which have a special and peculiar value, and where the remedy at law in damages would be utterly inadequate, and where the chattel 1. Coibin V. Tracy, 34 Conn. (Tenn.), 478, 54 Am. Dec. 51; 325; Electric Secret Service Co. Cuddee v. Eutter, 1 P. Wm. 569; V. Manuf. Co., 125 Mo. 140, 28 S. W. Johnson v. Brooks, 93 N. Y. 337; 486; Binney v. Annan, 107 Mass. Treasurer v. Mining Co., 23 Cal. 94, 9 Am. Rep. 10. 390; Eckstein v. Downing, 64 N. H. 2. Electric Secret Service Co. v. 248, 10 Am. St. Rep. 404, 9 A. 626; Manuf. Co., 125 Mo. 140, 26 S. W. Todd v. Taft, 7 Allen (Mass.), 371; 486. Xe^v England Trust Co. v. Abbott, 3. Johnson v. Steffons, 54 111. 162 Mass. 148, 34 N. E. 432, 27 L. App. 196. R. A. 271 and note. 4. Bumgardner v. Leavitt, 35 5. Kimball v. Morton, 5 N. J. W. Va. 194, 13 S. E. 67, 12 L. R. Eq. 26, 43 Am. Dee. 621; ChaflFee v. A. 776 and note; Chalfee v. Sprague, 16 R. I. 189, 13 A. 121; Sprague, 16 R. I. 189, 13 A. 121; Goodwin Gas Stove's Appeal 117 Northern Trust Co. v. Markell, 61 Pa. St. 514, 12 A. 736, 2 Am. St. Minn. 271, 63 N. W. 735; Rollins Rep. 696; Johnson v. Brooks, 93 Invest. Co. v. George, 48 Fed. Rep. K Y. 337; Krohn v. Williamson, 776; Womack v. Smith, 11 Humph. 62 Fed. Rep. 869. 735 §§ 675, 676 TERMINATION OF CONTEACTS. CIl 22 is a family relic or ornament.® And this special value may be on account of their beauty, or some other interest attaching to themJ So equity will decree the specific performance of a contract to convey personal property where like property cannot be ob- tained elsewhere or for other reasons an action at law for dam- ages will afford an adequate remedy.^ § 676. Supervision of the court — Continuous acts. — A court of equity will not decree specific performance of contracts re- quiring continuous personal action, and running through an indefinite period of time,^ and which by their terms call for a succession of acts whose performance cannot be consummated by one transaction, and which require protracted supervision and direction,^ Thus, a court of equity would not undertake to compel a contractor to build a railroad or a warehouse, nor can it successfully an agreement for the operation of a mine or a manufactory. Such relief as that is not practicable. A court cannot compel a party to employ men to work his mine, operate his machinery, furnish necessary supplies, produce the coal, and deliver it to the other party. A succession of continu- ous acts calling for his personal services and for the exercise of his judgment, experience and tact in reference to a compli- cated business, cannot be specifically compelled.^ 6. Cheale v. Kenward, 3 DeG. & 1. Louisville, etc. R. R. Co. v. J. 27; Manton v. Ray, 18 R. I. 672, Bodenschatz, 141 Ind. 251, 39 N. E. 20 A. 998, 49 Am. St. Rep. 703 ; Port Clinton, etc. R. R. Co. v. 811; Womack v. Smith, 11 Railroad Co., 13 Ohio, 544. Humph. (Tenn.) 478, 54 Am. Dec. 2. Grape Creek Coal Co. v. Spell- 51; Lee v. Core, 4 Cold. (Tenn.) man, 39 111. App. 630; Wilson v. 395. Railway Co., 9 Ch. App. 279. 7. Buxton V. Lester, 3 Atk. 384, 3. Grape Creek Coal Co. v. Spell- Womack v. Smith, 11 Humph. man, 39 HI. App. 630; Union Pac, (Tenn.) 478, 54 Am. Dec. 51. etc. R. R. Co. v. Railroad Co., 163 8. Manton v. Ray, 18 R. L 672; U. S. 564, 16 S. Ct. 1173; Electric 20 A. 998, 49 Am. St. Rep. 811; Light Co. v. Railroad Co., 109 Ala. Cheale v. Kenward, 3 DeG. & J. 190, 19 So. 721, 55 Am. St. Rep. 27. 927; Thiebaud v. Furniture Co., '36 Ch. 22 PERFORMANCE. §§ 676, 677 But a court of equity will enforce a contract for a long time, such as the running of a railroad by a receiver, and make sup- plemental decrees as occasion requires.* § 677. Contracts involving the exercise of skill, personal labor and cultivated judgment. — A court of equity will not enforce specific performance of a contract where the duties are continuous and involve the exercise of skill, personal labor, and cultivated judgment. Thus, it will not compel the delivery of marble of a certain kind, and in blocks of a kind that the court is incapable of determining whether they accord with the con- tract or not.^ If performance be decreed in such a case, the cause of action must remain in court to the end of the time of the contract, no matter how long the time, and the court may be called upon to determine, not only whether the prescribed quantity of the subject-matter has been delivered, but whether every piece is from the right place, whether it is sound, whether it is of suitable size, or shape, or proportion. A court of equity cannot superintend the execution of such a decree. It is im- practicable. And equity will not enforce part of a contract, unless that part is clearly severable from the remainder.^ While a positive and a negative stipulation of an agreement form but one contract, a court may interfere to prevent the vio- lation of the negative stipulation, although it cannot enforce specific performance of the entire contract. Thus, where a pro- fessional singer was sued by the proprietor of a theatre for spe- 143 Ind. 340, 42 N. E. 741 ; Ewing 4. Joy v. St. Louis, 138 U. S. 1, V. Litchfield, 91 Va. 575, 22 S. E. 47, 11 S. Ct. 243. See, also, Storer 362 ; Louisville, etc. R. R. Co. v. v. Railway Co., 2 Younge & Col., N. Bodenschatz, 141 Ind. 251, 39 N. E. R. 48; Green v. Railway Co., L. R. 703; Atlanta, etc. R. R, Co. v. 13 Eq. 44; Prospect Park, etc. R. Speer, 32 Ga. 550, 79 Am. Dec. R. Co. v. Railroad Co., 144 N. Y. 305; Beck v. Allison, 56 N. Y. 366, 152, 39 N. E. 17, 26 L. R. A. 610. 15 Am. Rep. 430; Blanchard v. 1. Marble Co. v. Ripley, 10 Wall. Railroad Co., 31 Mich. 43, 18 Am. (U. S.), 339; Louisville, etc. R. R. Rep. 142; Columbus, etc. R. R. Co. Co. v. Bodenschatz, 141 Ind. 251, V. Watson, 26 Ind. 50; New South 39 N. E. 703. Wales, etc. R. R. v. Wythes, Kay & 2. Ogden v. Fossick, 9 Jurist, N. J. 186. S. 238. 737 § 677 TERMINATION OF CONTEACTS. CIl. 23 cific performance of a contract to sing in his theatre upon cer- tain terms, for a certain time, and not to sing elsewhere during that period, the court interfered to prevent the violation of the negative stipulation, but not that of the positive, that is, it would not enforce the contract to sing, hut would enjoin the party from singing elsewhere.^ This doctrine is now generally received as the better rule.* The general rule is that a contract for services cannot be specifically enforced.^ ITor can this be done indirectly by re- straining the employe in equity from leaving the service.^ But if the contract contains a stipulation not to perform services for another during the term, that provision may be enforced by an injunction, provided the services are of an unique and extra- ordinary character which cannot be obtained elsewhereJ In the English cases an express negative stipulation is required or the injunction will not issue. In some of the American cases the agreement to serve the hirer during a certain term is con- strued as an agreement to serve no one else during that term. In nearly all the cases is involved the exercise of mental and intellectual powers, — authors, singers, actors, and the like.^ Acrobats and tumblers do not come under the class whose performance is unique or of unusual character. So an injunc- 3. Lumley v. Wagner, 1 DeGex, 209, 24 U. S. App. 239; Toledo M. & G. 604, overruling Kemble v. Railroad Co. v. Penn. Co., 54 Fed. Kean, 6 Sim. 333, and Kimberley v. Rep. 743. Jennings, 6 Sim. 340. 7. Lumley v. Wagner, 1 DeG. M. 4. South Wales R. R. Co. v. & G. 604, 5 De G. & Sm. 485 ; Grim- Wythes, 5 DeG. M. & G. 880; Catt ston v. Cunningham (1894), 1 Q. V. Toole, L. R. 4 Ch. App. 654; B. 125; Whitford Chemical Co. v. Peabody v. Norfolk, 98 Mass. 452, Hardman, 2 Ch. 416, disapproving 96 Am. Dee. 664. Compare Mair Montague v. Flocton, 16 L. R. Eq. V. Tea Co., L. R. 1 Eq. 411; Hope 189; Duff v. Russell, 133 N. Y. V. Hope, 22 Beav. 351; Sanders v. 678, 31 N. E. 622. Rodway, 16 Beav. 207 ; Paxton v. 8. Lumley v. Wagner, 1 DeG. M. Newton, 2 Sm. & Gif . 437. & G. 604 ; Daly v. Smith, 49 How. 5. Stocker v. Brockilbank, 3 Pr. 150; Hahn v. Concordia Soc, Mac. N. & G. 250. 42 Md. 465 ; McCaull v. Graham, 16 6. Arthur v. Cakes, 63 Fed. Rep. Fed. Rep. 37; Fredericks v. Mayer, .310, 25 L. R. A. 4r4, 11 C. C. A. 13 How. Pr. 567. 738 Ch. 22 PERFOKMANCE. §§ 67Y, 678 tion will not lie against them to prevent service for another party.^ The same rule applies to a sketch artist.^" So an in- junction will not lie to restrain a ball player from engaging to another party." But in another case a base ball player was restrained from hiring to another party, because his services are of such an unique character, and display such a special knowledge, skill and ability, as render them of peculiar value to the employer, and difficult of substitution,^^ but this decision is against the weight of authority. A prize fighter will not be restrained from breaking his contract. The court said that the relief sought must be refused, " not out of tenderness to the defendant," but because the contract, the enforcement of which is negatively sought, is illegal ; ex pacto illicito non oritur aciio}^ A skilled employe who enters the employment with the agree- ment that whatever improvements he shall make in the machin- ery shall inure to the employer, is bound, as the contract is valid." § 678. Tender of performance. — The plaintiff, before bring- ing suit must tender performance.^ The refusal to accept ten- der of performance of a contract based solely upon claim of forfeiture, makes it immaterial whether such tender strictly 9. Cort V. Lassard, 18 Oreg. 221, Lajoie, 202 Pa. St. 210, 51 A. 973, 22 P. 1054, 6 L. R. A. 653 and 58 L. R. A. 227, 90 Am. St. Rep. note, 17 Am. St. Rep. 726. G27 and note. 10. Strobridge Lith. Co. v. 13. McDonald v. McCallon, Crane, 58 Hun, 611, 12 N. Y. S. (Baltimore Cir. Ct.), 33 Chi. L. 834, 35 N. Y. St. 473. News, 438. 11. American Baseball, etc. Co. 14. Thibodeau v. Hillreth, 63 L. V. Harper, St. Louis Circuit Court. R. A. 480, 124 Fed. Rep. 892, 60 54 Cent. Law Jour. 449 and note by C. C. A. 78. See " Mutuality in the John D. Lawson. This decision I'nforcement of Contracts lor Per- was rendered May, 1902. Of course, sonal Service." — 55 Cent. Law Jour, this decision comes from a nisi 64. priu^ court. The note is a valuable 1. Soper v. Gabe, 55 Kan. 646, exposition of the law on this sub- 41 P. 969; Kelsey v. Cro^\'ther, ject. 162 U. S. 404, 16 S. Ct. 808. 12. Philadelphia Ball Club v. 739 §§ 6Y8-680 TERMINATION OF CONTBACTS. Clh- 22 conforms to the contract^ If circumstances are sucli that a tender would be of no importance, and must be refused by the other party, it need not be made.^ But general tender of performance must be made. Thus, if the vendee of land wishes to compel the other to fulfill the con- tract, he must make his part of the agreement precedent, and cannot proceed against the other without actual performance of the agreement on his part or tender of performance.* § 679. Time of performance. — ^While the court of equity does not regard time as of the essence of the contract unless it is so expressly stipulated, yet it will require of one who seeks specific performance of a contract that he shall not be guilty of unrea- sonable delay. ■^ Still in contracts giving a person an option to purchase a chattel for a given price within a limited time, time is then of the essence of the contract so as to prevent specific performance on failure without excuse to purchase within the specified time.^ § 680. Contracts subject to conditions. — ^When a condition is precedent and material it must be performed before a court of equity will take jurisdiction to enforce performance. But provisions in a contract for referees in certain contingencies, which are not of the essence of the contract, are not ground for refusal of specific performance.^ And a party may waive such condition by his own acts, and then the contract may be spe- cifically performed.* 2. Monson v. Bragdon, 159 III. Rep, 251; Chabot v. Park Co., 34 61, 42 N. E. 383. Fla. 258, 15 So. 156, 43 Am. St. 3. Bucklen v. Hasterlik, 155 111. Rep. 192. 423, 40 N. E. 561. 2. Roberts v. Norton, 66 Conn. 1, 4. Bank v. Hagner, 1 Pet. (U. 33 A. 532. S.), 455; Marble Co. v. Ripley, 10 3. Union Pacific, etc. R. R. Co. Wall. (U. S.), 339; Jenkins v. v. Railroad Co., 163 U. S. 564, 16 S. Locke, 3 App. D. C. 485. Ct. 1173. 1. Tate V. Development Co., 37 4. Work v. Walsh, 160 111. 468, Fla. 439, 20 So. 542, 53 Am. St. 43 N. E. 719. 740 Ch. 22 PEEFOKMANCE. § 681 § 68i. Part performance. — Where a contract is entire and indivisible, it must be enforced as an indivisible interger, or not at all ; it cannot be enforced by parts.^ Hence, a vendor cannot enforce the specific performance as to a part of a con- tract for the purchase of land. If enforcible at all it must be in its entirety.^ 1. Dalby v. Pullman, 3 Sim. 29; Fed. Rep. 133; Cato v. Thompson, 9 Baldwin v. Fletcher, 48 Mich. 604, Q. B. Div. 616. 12 N. 872; Kenner v. Bitely, 45 2. Hill v. Mining Co., 119 Mo. 9, 24 S. W. 223. 741 CHAPTER XXIII. Breacli and Discharge. ARTICLE I. Measure of Damages. Section 682. Object in Awarding Damages. 683. Rule for Estimating Damages. 684. As to Common Carrier. 685. Sale of Property for Special Purpose. 686. Breach of Contract for Personal Services — Duty of Laborer to Protect Himself. 687. Contract Not for the Use of Some Special Instrumentality. 688. Part Performance. 689. Appreciation in the Value of Land. 690. Uncertain and Contingent Damages. 691. Interest Upon Unliquidated Damages. 692. Breach by Telegraph Company. 693. Breach by Telegraph Company — Mental Suffering. 694. Contract to Furnish Special Material. 695. Profits as Damages — General Rule. 696. Profits which Would Have Been Realized. 697. Contingent Profits not Allowed. 698. Resale by Purchaser. 699. Building Contracts. § 682. Object in awarding damages. — The primary object in awarding damages at common law is compensation to the in- jured party, but the damages allowed for this purpose must be the natural and proximate result of the wrongdoer.^ This is not, however, the invariable rule in all cases.^ Where a party sustains loss by reason of a breach of contract, he shall, so far 1. Hodges V. Fries, 34 Fla. 63, 2. Messmore v. Lead Co., 40 N. 15 So. 682; Robinson v. Hyer, 35 Y. 422. Fla. 544, 17 So. 745. 742 Ch. 23 BREACH AND DISCHARGE. §§ 682, 683 as money can do it, be placed in the same situation, with respect to damages, as if the contract had been performed.^ § 683. Rule for estimating damages. — It may be laid down as the general rule that where one party has broken the con- tract, the damages which the other party should receive in re- spect to such breach of contract should be such as may fairly and reasonably be considered either arising naturally — that is, according to the usual course of things, from such breach of contract itself, or as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. And if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably con- template, would be the amount of injury which would ordinar- ily follow from the breach of contract under these special cir- cumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.^ 3. McHose v. Fulmer, 73 Pa. St. road Co., 7 Hurl. & N. 79; Elbinger 365 ; Chicago, etc. E. R. Co. v. Hale, Actien-Gesellschafft v. Armstrong, 83 111. 360. 25 Am. Rep. 403; Bell v. L. R. 9 Q. B. 473; Wilson v. Rail- Reynolds, 78 Ala. 511. road Co., 9 C. B. N. S. 632; Robin- 1. Hadley v. Baxendale, 9 Exch. son v. Harman, 1 Exch. 855; Beau- 341; Vicksburg, etc. R. R. Co. v. mont v. Greathead, 2 C. B. 494; Ragsdale, 46 Miss. 458 ; Griffin v. Horton v. Bauer, 129 N. Y. 148, 29 Colver, 16 N. Y. 490, 69 Am. Dec. N. E. 1; Barnes v. Brown, 130 N. 78 and note; Richardson v. Chyno- Y. 372, 29 N. E. 760; Priestly v. weth, 26 Wis. 656 ; Thomas v. Rail- Railroad Co., 26 111. 205 ; Weber v. road Co., 62 Wis. 642, 22 N. 827, Squier, 51 Mo. App. 601; Grebert- 51 Am. Rep. 725; Smud v. Foard, 1 Borgnis v. Nugent, 15 Q. B. Div. El. & El. 602 ; Gee v. Railroad Co., 85. Compare Hamilton v. Magill, 6 Hurl. & N. 211; CoUard v. Rail- L. R. 12 Ire. 202. 743 §§ 683, 684 TERMINATION OF CONTEACTS. CiL 23 But it is not practicable to state a fixed rule for estimating damages for many contracts, but the following rules are well settled: 1. The proximate and natural consequences of the breach must always be considered. 2. The consequences must be such as, from the nature and subject-matter of the contract, may be reasonably deemed to have been in the contemplation of the parties at the time of the execution of the contract. 3. But damages, which may fairly be supposed not to have been the necessary and natural sequence of the breach, shall not be re- covered, unless by the terms of the agreement, or by direct notice, they are brought within the expectation of the parties. 4. Loss of profits in business cannot be allowed, unless the data of estimation are so definite and certain that they can be ascer- tained reasonably by calculation, and then the party in fault must have had notice, either from the nature of the contract itself, or by explanation of the circumstances, at the time the contract was made, that such damages would ensue from non- performance. 5. If the contract is made with reference to em- barking in a new business, the speculative profits which might be supposed to arise, but which were defeated because of a breach of contract, which delayed the business, cannot be looked to as an element of damages. 6. If the delay in the transpor- tation of machinery, to be applied to a special use, and that is known to the carrier, he is responsible for such damages as are fairly attributable to the delay ; that is, such as the value of the use of the machinery, to be tested by its rental price, or other approximate means, and the expense of handling and the like. 7. The party injured by the delay must not remain inactive, but should make reasonable exertion to help himself, and thereby reduce his losses and diminish the responsibility of the party in default to him.^ § 684. As to common carrier. — As a general rule, the appro- priate compensation for the breach of a contract to deliver 2. Vicksburg, etc. R. R. Co. v. Raggsdale, 46 Miss. 458, by Simer- all, J. 744 CTl. 23 BREACH AND DISCHARGE. §§ 684, 686 goods, is their market value in money at the time and place at which they should have been delivered, with interest thereon ; and such is the rule in an action against a common carrier if the goods are never delivered.^ It is also settled that when a carrier negligently delays the delivery of goods, knowing that the OAvner intends to sell them in the market, he is liable for the diminution in their market value during the delay.* Whenever, by reason of inexcusable delay of the carrier, the goods are not delivered until after they have diminished in market value, the measure of damages is the amount of the diminution ; this rule depends on the general market value of the goods, and involves no question of contingent or speculative profits, and no consideration of any other contracts made or omitted to be made by the plaintiff in view of his contract with the defendant.^ § 685. Sale of property for special purpose. — Ordinarily upon the sale and delivery of a chattel accompanied by a war- ranty, which is broken, the measure of damages is the differ- ence between its value had it been as warranted and as it proved .to be. But this rule does not apply to cases where a manufac- turer sells goods to a purchaser to be used for a particular pur- pose, which is known to the vendor at the time of the sale, for then a more liberal rule prevails than in cases where like articles are sold as merchandise for general purposes. In the case of sale for a particular purpose, the profits and expenses incurred may be recovered.^ This doctrine is that where a party sustains a 3. Spring v. Haskell, 4 Allen Wilson v. Railroad Co., 9 C. B. (Mass.), 112. N. S. 632; Collard v. Railroad Co., 4. Smfth V. Railroad Co., 12 Al- 7 Hurl. & N. 79. See, also. Great len (Mass.), 531, 9 Am. Dec. 166; Western R. R. Co. v. Redmayne, Cutting V. Railroad Co., 13 Allen L. R. 1 C. P 330; Lord v. Railroad (Mass.), 531; Hamilton v. McPher- Co., L. R. 2 C. P. 345; Smud v. son. 28 N. Y. 77, 84 Am. Dec. 330; Foard, 1 El. & El. 602. King V. Woodbridge, 34 Vt. 565. 1. Passinger v. Thorburn, 34 N. 5. Fox V. Harding, 7 Cush. Y. 634, 90 Am. Dec. 753 and note; (Mass.), 516; Le Peinter v. Rail- Van Wyck v. Allen, 69 N. Y. 61; Toad Co., 2 L. T. N. S. 170; Gee Booth v. Mill Co., 60 N. Y. 487, 25 V. Railroad Co., 6 Hurl. «& N. 211; Am. Rep. 136; Swain v. Schieffelin, 745 § 685 TEKMINATIOIT OF CONTRACTS. CL 23 loss by reason of a breach of a contract, he shall, so far as money can do it, be placed in the same situation, with respect to dam- ages, as if the contract had been performed.^ The vendor, having sold the articles with the knowledge that they were purchased for a particular purpose, should be held liable for such damages as naturally flow from the breach of his contract, and which he, or any reasonable man, might appre- hend would follow the breach. Thus, where a purchaser buys coloring matter for his ice cream and uses it, whereby many persons who ate it were made sick, and upon analysis of this ingredient it was found to contain arsenic, and the purchaser thereupon destroyed the rest of the ice cream in which it had been used, he can recover of the vendor of the coloring matter the value of the goods destroyed and the damage occasioned by the loss of customers caused by the sale of the poisonous cream.' So far as the plaintiff's property was injuriously affected or contaminated by the use of the coloring matter sold him by the vendor, the damages were attributed directly to the act com- plained of, and to that extent he must recover.* An injured party is allowed to charge the other with loss on collateral con- tracts, on proving notice, which in the absence of such notice would not be considered within the contemplation of the parties.^ Some of the courts hold that a bare notice of special conse- quences which may result from the breach, unless under such circumstances as to imply that it formed the basis of the agree- 134 N. Y. 471, 31 N. E. 1025; 2. Messmore v. Lead Co., 40 N. White V. Miller, 71 N. Y. 118, 27 Y. 422. Am. Rep. 13; White v. Miller, 78 3. Swain v. Schieflfelin, 134 N. Y. N. Y. 393, 34 Am. Rep. 544; Mess- 471, 31 N. E. 1025, distinguishing more v. Lead Co., 40 N. Y. 422; Grain v. Petrie, 6 Hill (N. Y.), 522, Hammond v. Bussey, 57 L. J. Q. 41 Am. Dec. 705. B. 58; Hammer v. Schoenfelder, 47 4. Jeffrey v. Bigelow, 13 Wend. Wis. 455, 2 N. 1129; Blagen v. (N. Y.), 518, 28 Am. Dec. 476; Thompson, 23 Oreg. 239, 31 P. 647; Mullett v. Mason, L. R. 1 C. P. Carnegie v. Holt, 99 Mich. 606, 58 559. N. W. 623; Fleming v. Beck, 48 5. Hadley v. Baxendale, 9 Exch. Pa. St. 309 ; Hlinois Cent. R. R. Co. 341; Hammer v. Schoenfelder, 47 V. Cobb, 64 111. 128. Wis. 455, 2 N. 1129. Y46 CTl. 23 BKEACH AND DISCHARGE. §§ 685-687 ment, is not sufficient to make the vendor liable for damages arising out of special circumstances.® § 686. Breach of contract for personal services — Duty of laborer to protect himself. — The rule that one who has been damaged by a breach of a contract should do all that reasonably lies within his power to protect himself from loss, by seeking another contract of like character, the profits of which should be applied in mitigation of such damages, is correct as applied to some classes of cases, especially to contracts for personal service, or for the use of some special instrumentality either with or without connection with such personal service.'' Thus, in a contract for teaching a school, which was broken by a refusal to receive the services, the teacher was in duty bound to make reasonable exertion to obtain other like employ- ment in the same vicinity, and therefore, if possible, to miti- gate the damages.^ And so, if an actress be refused employ- ment in her profession according to agreement, she must en- deavor to secure such employment elsewhere to mitigate the damages.' § 687. Contract not for the use of some special instrumen- tality. — A contract, not for the use of some special instrumen- tality, or for personal services, does not come under the rule that the injured party must seek another contract of similar nature in order to mitigate damages.^ But in contracts of special instrumentality, the party injured must do all within his power to mitigate his damages. Thus, in a case of a breach 6. Friend, etc. L\im. Co. v. Mil- 8. Gillis v. Space, 63 Barb. (N. ler, 67 Cal. 464, 8 P. 40; Bridges V. Y.), 177; Benziger v. Miller, 50 Stickney, 38 Me. 361; Snell v. Ala. 206. Cottingham, 72 111. 161; McKinnon 9. Harvard v. Daly, 61 N. Y. 362, V. McEwan, 48 Mich. 108, UN. 19 Am. Rep. 285. See, also, Watson 828, 42 Am. Rep. 458 and note; v. Brick Co., 3 Wash. 283, 28 P. Booth V. Mill Co., 60 N. Y. 487. 527 ; Crescent Manuf. Co. v. INIanuf. 7. Sullivan v. McMillan, 37 Co., 100 Mo. 325, 13 S. W. 503. Fla. 134, 19 So. 340, 53 Am. Rep. 1. Watson v. Brick Co., 3 Wash. 239. 283, 28 P. 527 ; Wolf v. Studebaker, 74Y § 687 TEKMmATION OF CONTRACTS. Cll. 23 of a contract to furnisli a cargo for a vessel, it is the duty of the master of the chartered vessel, on the failure or refusal of the charterer to furnish the cargo as agreed, to avail himself of all ordinary means and proper opportunities to obtain another cargo ; and if he neglects to perform this duty, the owners can- not hold the charterer liable for the increased damages resulting from such neglect.^ So where the landlord failed to place the tenant in possession of the store according to agreement, it is the duty of the tenant to mitigate the damages by accepting another store in the same vicinity, and equally suited for his purposes, which the landlord tendered.^ And where the plaintiff, owner of a portable sawmill, agreed to remove it to the farm of the defendant and to saw a stated number of logs, to be furnished by the defendant, during a cer- tain season, and the defendant, after furnishing a portion, broke his contract by refusing to furnish more of such logs, but during that time offered the plaintiff other employment of the same kind, so that his mill need not have been idle, this offer of other work of the same kind should go in mitigation of damages.'* But there are many cases where no legal obligation rests upon the plaintiff to enter upon the performance of other con- tracts for the benefit of the defendant.^ Ordinarily contracts of hire, and contract for the perform- ance of some specified undertaking, cannot be governed by the same rule. In one case the party can earn no more than the wages, and if he gets that his loss will be nominal. In the other 65 Pa. St. 459; Crescent Manuf. Co. stock, 21 Wend. (N. Y.), 457, 34 V. Manuf. Co., 100 Mo. 325, 13 S. W. Am. Dec. 262 and note. 503; Nelson v. Morse, 52 Wis. 240, 3. Hodges v. Fries, 34 Fla. 63, 255, 9 N. 1 ; Cameron v. White, 74 15 So. 682. Wis. 425, 43 N. W. 155, 5 L. R. A. 4. Heavilon v. Kramer, 31 Ind. 493; Sullivan v. McMillan, 37 Fla. 241; Frazier v. Clark, 88 Ky. 260, 134, 19 So. 340, 53 Am. St. Eep. 10 S. W. 806, 11 S. W. 83. 239. 5. Sullivan v. McMillan, 37 Fla. 2. Murrell v. Whiting, 32 Ala. 134, 19 So. 340, 53 Am. St. Rep. 54. See, also. Shannon v. Com- 239; Cameron v. White, 74 Wis. 425, 43 N. W. 155, 5 L. R. A. 493. 748 Cll. 23 BREACH AND DISCHARGE. §§ 687, 688 case, the loss of the party is the loss of the benefit of the con- tract. The damages are fixed by the law of the contract the moment it is broken, and cannot be altered by collateral circum- stances independent of and totally disconnected from it, and from the party occasioning it. And so the doctrine that one who has been injured by the breach of a contract must do all that is reasonably within his power to mitigate the damages caused thereby, does not prevail to the extent that one who is injured by a violation of a contract to do a specific act not neces- sarily involving personal services, must seek and perform other contracts for the benefit of one who, by breaking faith with him, has caused the injury.® § 688. Part performance When a party injured by the stoppage of a contract by the other party, elects to rescind it, then he cannot recover any damages for a breach of the con- tract, either for outlay or for loss of profits ; he recovers the value of his services actually performed as upon a quanhim meruit. There is then no question of losses or profits.^ But where he elects to sue for damages for the breach of the con- tract, his loss will consist of two distinct items or grounds of damage: 1. What he has already expended towards perform- ance, and if it be a construction contract, less the value of mate- rials on hand. 2. The profits that he would realize by per- forming the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. But when profits are the direct and immediate fruits of the contract, they are a part and parcel of the contract- itself, entering into and constituting a portion of its very elements ; something stipulated for, the right 6. Wolf V. Studebaker, 65 Pa. S. W. 503; Nelson v. Morse, 52 St. 459 ; Watson v. Brick Co., 3 Wis. 240, 9 N . 1 ; Cameron v. Wash. 283, 28 P. 527; Sullivan v. White, 74 Wis. 425, 43 N. W. 155, McMillan, 37 Fla. 134, 19 So. 340, 5 L. R. A. 493. 53Ani.St.Rep. 239; Crescent Manuf. 1. United States v. Behan, 110 Co. V. Manuf. Co., 100 Mo. 325, 13 U. S. 338, 4 S. Ct. 81, T49 §§ 688, 689 TEKMINATION OF CONTRACTS. Clll. 23 to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation.^ It does not lie in the mouth of the party, who has voluntarily and wrongfully put an end to the contract, to say that the party injured has not been damaged at least to the amount of what he 'Jias been induced fairly and in good faith to lay out and expend, including his own services, after making allowance for the value of the material on hand, unless he can show that the expenses of the party injured has been extravagant and unnec- essary for the purpose of carrying out the contract.^ § 689. Appreciation in the value of land. — Contracts are often made in the purchase of land, whereby improvements are to be made that shall enhance the value of the land. In case of breach, the question comes up as to the damages of the pur- chaser. Thus, the damages for breach of contract to build a motor railway to connect with the business portion of a city, a tract of land which one of the parties has just purchased with a view of platting and selling it for suburban residences, is the difference between the value of the land on the day the road should have been completed, not less than the agreed purchase price, and what its value would have been on that day with the road completed and in operation.'* This appreciation in the value of the land, if any, is clearly within the legal if not the actual contemplation of the parties at the time the contract was made. So the loss of its increased value is the proximate and natural consequence of defendant's breach, and is a fair and close approximation of the actual pecuniary loss sustained by the plaintiff which the law can furnish.^ 2. Masterson v. Brooklyn, 7 Hill Foard, 1 El. & El. 602; Inchbald v. (N. Y.), 69, 42 Am. Dec. 38 and Coffee Co., 17 C. B., N. S. 733; note. (4riffin v. Colver, 16 N. Y. 489, 69 3. United States v. Behan, 110 Am. Dec. 718 and note; United U. S. 338, 4 S. Ct. 81; States v. Speed, 8 Wall. (U. S.), Planche v. Colburn, 5 Car. & P. 77, 2 Ct. CI. 429. 58, 8 Bing. 14 ; Goodman v. Pocock, 4. Blagen v. Thompson, 23 Oreg. 15 Ad. & El. 576; Hadley v. Bax- 239, 31 P. 647, 18 L. R. A. 315. endale, 9 Exeh. 341; Fletcher v. 5. Wilson v. Railway Co., 9 Ct. Tayleur, 17 C. B. 21; Smud v. App. 279; Bronson v. Coffin, 108 760 Cll. 23 BREACH AND DISCHARGE. §§ 690, 691 § 690. Uncertain and contingent damages. — Where one party violates and repudiates his contract, the damages sus- tained by the injured party are nearly always involved in some uncertainty and contingency. They may be so uncertain, con- tingent and imaginary as to be incapable of adequate proof, and then they cannot be recovered because they cannot be proved. But when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there is no valid reason for refusing on account of such uncertainty any damages whatever for the breach. A person Aaolating his contract should not escape liability because the amount of the damages which he has caused is uncertain.^ The rule that damages which are uncertain or contingent cannot be recovered, onW applies to such damages as are not the certain result of the breach, and not to such as are the certain result but uncertain in amount.^ It may be difficult for the plaintiff to prove with exactness what his damages are, but such uncertainty does not prevent him from recovering such damages as he may be able to prove.^ § 691. Interest upon unliqidated damages. — Formerly the rule was not to allow interest upon unliquidated damages. But now the rule is the same in regard to liquidated and unliqui- dated damages. So whenever a judginent liquidates a claim, and fixes it as of a prior date, interest should follow from the date." Interest is not the mere incident of the debt, attaching only Mass. 175, 11 Am. Rep. 335; 2. Blagen v. Thompson, 23 Oreg. Houston Railroad Co. v. Malloy. 939, 21 P. 641, 18 L. R. A. 315. 64 Tex. 607; Mobile Railroad Co. 3. O'Brien v. Society, 117 N. Y. V. Gilmer, 85 Ala. 422, 5 So. 138; ,310, 22 N. E. 954; Huse Ice Co. Louisville Railroad Co. v. Sumner, v. Heinze, 102 Mo. 245, 14 S. W. 106 Ind. 55, 5 N. E. 404, 55 Am. 756. Rep. 119; Watterson v. Railroad 4. Sullivan v. McMillan, 37 Fla. Co., 74 Pa. St. 208. 134, 19 So. 340, 53 Am. St. Rep. 1. Wakeman v. Mfg. Co., 101 N. 239; State v. Lott, 69 Ala. 147; Y. 209, 4 N. E. 264, 54 Am. Rep. Van Rensselaer v. Jewett, 2 N. Y. 676. 751 135, 51 Am. Dec. 275 and note; §§ 691-693i TERMINATION OF CONTBACTS. Oh,. 23 to contracts, express or implied, for the payment of money, bnt it is compensation for the use or for the detention of money. Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a debt, or as compensation for a breach of duty, or for a failure to keep a contract, interest attaches.^ Interest is the compensation for the use or detention of money, and so where a verdict liquidates a claim and fixes it as at a prior date, interest must follow from that date." § 692. Breach by telegraph company. — The general rule that a failure of a telegraph company to deliver a message whereby the sender is damaged, is limited to the amount paid for transmission, when the face of the telegram does not show its importance.^ In order to recover more, the face of the tele- gram ought to contain something to put the company on its guard.^ Thus, where the telegram shows on its face that it is important, the company is liable for its negligence in sending or delivering it, and if the party is injured by the loss in the price of property, the measure of damages is the difference between the price received and the actual market value of the property.^ § 693. Breach by telegraph company — Mental suffering. — It is the general rule that a mistake in sending a message whereby mental suffering or anguish is produced is no cause Jacksonville, etc. R. R. Co. v. Mfg. 6. State v. Lott, 69 Ala. 147; Co., 27 Fla. 1, 157, 9 So. 661, 17 Sullivan v. McMillan, 37 Fla. 134, L. R. A. 33 and note; Sullivan v. 19 So. 340, 53 Am. St. Rep. 239. McMillan, 37 Fla. 134, 19 So. 340, 1. Ferguson v. Tel. Co., 178 Pa. St. 53 Am. St. Rep. 239; Schmidt v. 377, 35 A. 979, 35 L. R. A. 554, Railroad Co., 95 Ky. 289, 24 S. W. 56 Am. St. Rep. 770 ; Telegraph Co. 444, 26 S. W. 547. v. Wenger, 55 Pa. St. 263, 93 Am. 5. Brackett v. Edgerton, 14 Dec. 751. Minn. 174, 100 Am. Dec. 211; 2. Abeles v. Tel. Co., 37 Mo. Aj)?. Boyd V. Gilchrist, 15 Ala. 849; 554. Whitworth v. Hart, 22 Ala. 3. Reed v. Tel. Co., 135 Mn. (i61, 343; Sellect v. French, 1 Conn. 32, 37 S. W. 904, 34 L. R. A. 492, 58 6 Am. Dec. 185 and note; Adams v. Am. St. Rep. 609. Bank, 36 N. Y. 255. 752 Ch. 23 BREACH AND DISCHARGE. § 693 for damages against the company. Mental suffering alone, though resulting naturally and proximately from the breach of the contract by the telegraph company, is not a proper element of damages.^ However, other decisions hold a contrary view, and so where a telegram is sent telling of the critical sickness or death of a friend or relative, and asking the receiver to come, and the telegram is delayed or not properly transmitted, so that the party summoned fails to comply with the requisition, and is thereby greatly grieved and suffers mentally, the telegraph com- pany is liable in damages for his anguish as its breach is the proximate cause of such suffering.^ 1. Francis v. Tel. Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. Rep. 507; Morton V. Tel. Co., 53 Ohio St. 431, 41 N. E. 689, 32 L. R. A. 735, 53 Am. St. Rep. 648; Summerfield v. Tel. Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17; Russell v. Tel. Co., 3 Dak. 315, 19 N. W. 408, Butner v. Tel. Co., 2 Okl. 234, 37 P. 1087; Chapman v. Tel. Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183; Western Union Tel. Co. V. Rogers, 68 Miss. 748, 9 So. 823, 13 L. R. A. 859 and note, 24 Am. St. Rep. 300; West v. Tel. Co., 39 Kan. 93, 17 P. 807, 7 Am. St. Rep. 530 and note; Interna- tional Tel. Co. V. Sanders, 32 Fla. 434, 14 So. 148, 21 L. R. A. 810; Newman v. Tel. Co. 54 Mo. App. 434; Chase v Tel. Co., 44 Fed. Rep. 554, 10 L. R. A. 464; Crawson v. Tel. Co., 47 Fed. Rep. 544 ; Western Union Tel. Co. v. Wood, 57 Fed. Rep. 471, 6 C. C. A. 432, 13 U. S. App. 317, 21 L. R. A. 706; Gahan v. Tel. Co., 59 Fed. Rep. 433. 2. Relle v. Tel. Co., 55 Tex. 308, 40 Am. Rep. 805; Western Union 753 Tel. Co. V. Berringer, 84 Tex. 38, 19 S. W. 336; Western Union Tel. Co. V. Wisdom, 85 Tex. 261, 20 S. W. 56, 34 Am. St. Rep. 805; West- ern Union Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826; Wadsworth v. Tel. Co., 86 Tenn. 695, 8 S. W. 374, 6 Am. St. Rep. 864 ; Young v. '^'".. Co., 107 N. Car. 370, 11 S. E. 1044, 9 L. R. A. 669 and note, 22 Am. St. Rep. 883 and note; Thompson v. Tel. Co., 107 N. Car. 294, 12 S. E. 427; Western Union Tel. Co. v. Cline, 8 Ind. App. 364, 35 N. E. 564; Chapman v. Tel. Co., 90 Ky. 265, 13 S. W. 880; Western Union Tel. Co. V. Henderson, 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. 148; Beasley V. Tel. Co., 39 Fed. Rep. 181; Mentzer v. Tel. Co., 93 Iowa. 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294; Reese v. Tel. Co., 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583 and note; Western Union Tel. Co. V. Finer, 1 Tex. Civ. App. 301, 21 S. W. 315; Western Union Tel. Co. V. Evans, 1 Tex. Civ. App. 297, 21 S. W. 266; Stuart v. Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623; Western Union Tel. Co. v. § 693 TERMINATION OF CONTEACTS. Clh. 23 Therefore, when an express company does not properly de- liver medicine to a party, which causes physical and mental suffering of the invalid, this is a proper cause of recovery of damages;^ but the mental suffering of the husband of the in- valid is too remote to be a basis for the recovery of damages.* The variance of the courts cannot be reconciled. The class of cases where mental suffering is an element of damages are: 1. Mental pain arising from negligence resulting in physical injury; 2, breach of contract of marriage; 3, willful wrongs affecting the liberty, character, reputation, personal security or domestic relations of the injured party. So, if mental pain is not connected with any physical injury or willful wrong, the plaintiff cannot recover for it, for mental suffering as an inde- pendent cause of action, is too remote, speculative and uncer- tain. This is the weight of authority in telegraph cases.^ There is no way to measure mental anguish where a suit is brought independently of physical injuries ; in such case it is too remote, speculative and uncertain. Even in cases of libel, malicious prosecution, and the like, in which punative damages may be added to compensate the mental anguish, the basis of damages for mental pain is the enormity of the willful offense, the nature and extent of which are established by evidence open to both sides.® A statute rendering telegraph companies liable for mental anguish caused by failure promptly to transmit and deliver a message is constitutional and does not deprive the company of Levy, 59 Tex. 563, 46 Am. Rep. 8 Tex. Civ. App. 363, 27 S. W. 278; Western Union Tel. Co. v. 830. Adams, 75 Tex. 531, 6 L. R. A. 5. Connelly v. Tel. Co., 100 Va. 844, 12 S. W. 857, 16 Am. St. Rep. 51, 40 8. E. 678, 56 L. R. A. 663 920; Western Union Tel. Co. v. and note and review, 93 Am. St. Kirkpatrick, 76 Tex. 217, 13 S. W. Rep. 919. 70, 18 Am. St. Rep. 37; Western 6. Western Union Tel. Co. v. Union Tel. Co. v. Rosentreter, 80 Ferguson, 157 Ind. 64, 60 N. E. Tex. 401, 16 S. W. 25. 674, 1080, 54 L. R. A. 846; Ewing 3. Pacific Express Co. v. Black, v. Railroad Co., 147 Pa. St. 40, 23 8 Tex. Civ. App. 363, 27 S. W. A. 340, 14 L. R. A. 666 and note, 830. 30 Am. St. Rep. 709 and note. 4. Pacific Express Co. v. Black, 754 oil. 23 BREACH AND DISCHAKQE. §§ 693, 694 property without due process of law, or deny it the equal pro- tection of the laws.^ § 694. Contract to furnish special material. — A contract for the furnishing of a particular article, intended for a special purpose and not adapted to the general market, is not within the statute of frauds as the contract for the sale of goods.^ But the cases on this point are conflicting and cannot be reconciled. In England it is held that if the contract be such that the sub- ject-matter of the contract is a chattel to be afterwards delivered, then the cause of action is, goods sold and delivered, and the seller cannot sue for work and labor.^ In ISTew York an agreement for the sale of a thing not in ex- istence at the time, but which the contractor is to manufacture or to put into condition to be delivered, is not a contract of sale, and so not within the statute of frauds.^ The general rule is that a contract for the sale of articles in existence, or for such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute of frauds applies ; but 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,* Therefore, the test is, not the nonexistence of the article at the time of the contract, as in iSTew York, nor whether the contract will result in the sale of a chattel, as in England, but Avhether the goods are such as the vendor, in the ordinary course of his business, manufactures or procures for the general market, or whether they are manufactured especially 7. Simmon v. Tel. Co., 63 S. Car. 272. See, also, Clay v. Yates, 1 425, 41 S. E. 521, 57 L. R. A. 607. Hurl. & N. 73. 1. Forsyth v. Mann, 68 Vt, 116, 3. Cook v. Willard, 65 N. Y. 34 A. 481, 32 L. R. A 788; God- 352, 22 Am. Rep. 619. dard v. Binney, 115 Mass. 450, 15 4. Goddard v. Binney, 115 Mass. Am. Rep. 112; Mixer v. Howarth, 450, 15 Am. Rep. 112; Forsyth v. 21 Pick. (Mass.) 205, 32 Am. Dec. Mann, 68 Vt. 116, 34 A. 481, 32 L. 256. R. A. 788. See, also, Pitkin v. 2. Lee v. Griffin, 1 Best & S. Xoyes. 48 N. H. 294, 2 Am. Rep. 218; Cason v. Cheeley, 6 Ga. 554. Y55 § 694 TERMINATION OF CONTEACTS. Oh, 23 for the vendee and on his special order, and not for the general market, and for which they are neither intended nor adapted. Under this general rule the personal services of the plaintiff in procuring material and superintending the construction of the special article may be included as part of the damages to be included in a breach of the contract,^ which is not void as a sale under the statute of frauds. It is not necessary that personal skill and labor should be stipulated for in order to make a contract one for manufacture. It is sufficient if the work and labor requisite to such a contract are to be performed by the contractor or by his procurement and at his expense. The latter would be work and labor done by him, in the eye of the law, and could be declared for as such.' Whether such parol contracts are within the statute of frauds is of great importance in those States where the seventeenth sec- tion of that act is in operation. Thus the plaintiff agreed to build a buggy for the defendant, and to deliver it at a certain date. The defendant gave directions as to the style and finish, and it was built accordingly and marked with his monogram. It was destroyed by fire before delivery, and the plaintiff sued for the price. The court held that the carriage was not only built for the defendant, but in conformity, in some respects, with his directions, and at his request was marked with his in- itials, and that it was neither intended nor adapted for the gen- eral market, and so the statute did not apply and the defend- ant must pay for it.^ So parties contracted to furnish a monument within a certain time. Upon learning that such parties would not finish it, the plaintiff at once procured stock and had the monument cut. Owing to the circumstances that the work must be done in the winter, the monument cost more than it otherwise would. Under such circumstances the plain- tiff could recover the difference between the contract price and 5. Forsyth v. Mann, 68 Vt. 116, 68 Vt. 116, 34 A. 481, 32 L. R. A. 34 A. 481, 32 L. R. A. 788. 788. 6. Bird v. Muhlinbrink, 1 Rich. 7. Goddard v. Binney, 115 Mass. L. (S. Car.) 119; Forsyth v. Mann, 450, 15 Am. Rep. 112. 756 Cli. 23 BREACH AND DISCHARGE. §§ 694, 695 the actual cost, and for his personal services in procuring stock and superintending the construction as part of the damages.* So damages may be recovered for the deprivation of intel- lectual enjoyment and for mental suffering resulting from the breach of the contract of a fashionable milliner to furnish the dresses for the trousseau of a bride of wealth and high social standing; because it must be taken into consideration not only the disappointment of the bride in not having the dresses in time for the wedding, and her mortification in going to her husband unprovided with a suitable trousseau, but also the fact that entertainments had been planned in her honor on her wed- ding tour and at her arrival at the home of her husband, which entertainments she had to forego for want of dresses.® § 695. Profits as damages — General rule. — It is held both in England and in the United States that the general rule is, sub- ject to certain well-established qualifications, that anticipated profits prevented by the breach of a contract are not recoverable in the way of damages for such breach ; but in the application of tliis principle the same uniformity in the decisions do not exist. In some cases of almost exact analogy, in the facts, the adjudications in the different States are directly opposite. The grounds upon which the general rule of excluding profits, in estimating damages are : 1. In the greater number of cases such expected profits are too dependent upon numerous, uncertain and changing contingencies to constitute a definite and trust- worthy measure of actual damages. 2. Such loss of profits is ordinarily remote and not, as a matter of course, the direct and immediate result of the nonfulfillment of the contract. 3. Most frequently the engagement to pay such loss of profits, in case of default in the performance, is not a part of the contract itself, nor can it be implied from its nature and terms. ^ 8. Forsyth v. Mann, 68 Vt. 116, States, 19 Wall. (U. S.) 37; Smith 34 A. 481, 32 L. R. A. 784. v. Conley, 1 How. (U. S.) 28; The 9. Lewis V. Holmes, 109 La. Amiable Nancy, 3 Wheat. (U. S.) Ann. 1030, 34 So. 66. 546; The Anna Maria, 2 Wheat. 1. Parish v. United States, 100 (U. S.) 327; The Schooner Lively, U. S. 500; Buckley v. United 1 Gall. C. C. 315. 757 § 696 TBRMINATION OF CONTEACTS. Gib. 23 § 6g6. Profits which would have been realized. — The profits which would have been realized had the contract been per- formed, and which have been prevented by its breach, are in- cluded in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of re- moteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may reasonably be presumed that they were within the intent and mutual understanding of both parties at the time it was entered into.^ Where a business is established so as to furnish a basis for the ascertaining of damages, damages are recoverable for loss of profits when the party has been prevented from carrying on his business, but not where the business has not been established.^ So damages from diminution of yield because of breach of con- tract to furnish fertilizers to assist in making a crop, is not too remote to sustain an action for the breach.^ In regard to sales, the general rule is that the purchaser is entitled to recover the difference between the contract price and the value of the article in the market at the time and place of delivery.'* The damages where the vendor knows that the pur- chaser has an existing contract for a re-sale at an advanced price, and that the purchaser is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same, because the profits which would accrue to the purchaser upon fulfilling the contract of re-sale, may justly be 1. United States v. Behan, 110 67 N. W. 976; Lanahan v. Heaver, U. S. 338; Western Union Tel. Co. 79 Md. 413, 29 A. 1036, 19 Am. St. V. Hall, 124 U. S. 444, 8 S. Ct. 577; Rep. 180. Philadelphia, etc. R. R. Co. v. How- 2. Chicago, etc. R. R. Co. v. How- ard, 13 How. (U. S.) 307; Arkan- ison, 80 111. 215. eas, etc. Town Co. v. Lincoln, 56 3. Herring v. Armwood, 130 N. Kan. 145, 42 P. 706; Blymyer Ice Car. 177, 41 S. E. 96, 57 L. R. A. Maeh. Co. v. McDonald, 48 La. Ann. 958. 439, 19 So. 459; Krearher v. Irwin, 4. Messmore v. Lead Co., 40 N". 46 Neb. 827, 65 N. W. 885; Bar- Y. 427; Carpenter v. Bank, 119 111. rett V. Veneer Works, 110 Mich. 6, 352, 10 N. E. 18. 758 Cll. 23 BREACH AND DISCHAEGE. §§ 69G, 697 said to have entered into the contemplation of the parties in making the contract.^ § 697. Contingent profits not allowed. — Calculations as to prospective profits in other enterprises which the party would have engaged in, had his contract with defendant been fulfilled, are too remote to form the basis of damages occasioned by the breach of such contract.^ Damages which are contingent can- not be allowed.^ Thus, the plaintiff, who was an owner of a mill, sent a broken iron shaft to the office of the defendants, who were common carriers, to be conveyed by them to a manu- facturer of such machinery, the broken shaft to serve as a model or pattern for the new one. The clerk of the defendants in their office was told that the mill was stopped, that the shaft must be delivered immediately and that a special entry should be made, if necessary to hasten its delivery. The delivery of the broken shaft to the manufacturer was delayed an unreasonable length of time, in consequence of which the plaintiff did not receive the new shaft for some days after the time it ought to have been received, and he was, therefore, unable to work his mill from want of the new shaft, thereby incurring loss of profits. It was held that such loss of profits could not be recovered as dam- ages in an action against the defendants as common carriers.' So in an action to recover the contract price for putting up mill machinery, anticipated profits of the defendant resulting from grinding wheat into flour and selling the same, had the 5. Hadley v. Baxendale, 9 Exch. St. Rep. 326; Jones v. Call, 96 N. 341; Cockburn v. Lumber Co., 54 Car. 337, 2 S. E. 647, 60 Am. Rep. Wig. 619, 12 N. 49; Wetmore v. 416; New York, etc. Mining Co. y. Pattison, 45 Mich. 430, 8 N. 67; Eraser, 130 U. S. 611, 9 S. Ct. 665; Rahm v. Deig, 121 Ind. 283, 23 N. Howard v. Manuf. Co., 139 U. S. E. 141. 199, 11 S. Ct. 500; Pennypacker v. 1. Fox V. Harding, 7 Cush. Jones, 106 Pa. St. 237; Allis v. (Mass.) 516; Consumers' Pure Ice McLean, 48 Mich. 428, 12 N. 640; Co. V. Jenkins, 58 111. App. 519. Dixon-Wood Co. v. Glass Co., 169 2. Paola Gas Co. v. Glass Co., Pa. St. 167, 32 A. 432. 56 Kan. 614, 44 P. 621, 54 Am. St. 3. Hadley v. Baxendale, 9 Exch. Rep. 598; Brownell v. Chapman, 341, 354, 356. 84 Iowa, 504, 51 N. W. 249, 35 Am. 759 § 697 TERMINATION OF CONTRACTS. Cll. 23 mill been completed at the date specified in the contract, cannot be recovered by way of damages for delay in putting it up.* Likewise the plaintiff, who owned and operated a flour mill, entered into a contract with the defendants, by certain of the terms of which the defendants were to place in his mill, within a specified time, machinery of a certain capacity, to make flour of a high grade. The machines when furnished were found not to make a high grade of flour, and to be incapable of pro- ducing the stipulated number of barrels per day. In an action for damages by the plaintiff for breach of the contract, it was held that the loss of possible profits, which might have been made if the mill had run properly, was not a proper subject of damages, for the reason that the damages were too remote and speculative.^ So in an action for the seizure and detention of a steamboat by an attachment which was discharged, it was held that measure of damages was only the actual damage sustained by the seizure.^ And in an action for the price of a steamboat which was delayed by imperfect construction, the profits which might have been made if perfectly constructed are too remote.'^ And in all cases where the profits are contingent, uncertain, and speculative, they cannot be estimated upon any certain basis, and are not therefore an element of damages.* 4. Howard v. Manuf. Co., 139 ham, 14 Neb. 369, 15 N. 704, 45 U. S. 199, 11 S. Ct. 560. Am. Rep. 121; Willingham v. 5. Pennypacker v. Jones, 106 Pa. Hoovin, 74 Ga. 233, 58 Am. Rep. St. 237, 242. 435; Georgia Railroad v. Hayden, 6. Callaway Mining, etc. Co. v. 71 Ga. 518; Freeman v. Clute, 3 Clark, 32 Mo. 305. Barb. (N. Y.) 424; Griffin v. Col- 7. Blanchard v. Ely, 21 Wend. ver, 16 N. Y. 489, 69 Am. Dec. 718 (N. Y.) 342, 34 Am. Dee. 250 and and note; Wakeman v. Manuf. Co., note. 101 N. Y. 205, 4 N. E. 264, 54 Am. 8. Olmstead V. Burke, 25 111. 86; Rep. 676; Brown v. Smith, 12 Winne v. Kelley, 34 Iowa, 339; Cush. (Mass.) 366; Boyd v. Brown, Howe Mach. Co. V. Bryson, 44 Iowa, 17 Pick. (Mass.) 453; Smith v. 159, 24 Am. Rep. 735; Housten, Conley, 1 How. (U. S.) 28; How- etc. R. R. Co. V. Hill, 63 Tex. 381, ard v. Manuf. Co., 139 U. S. 199, 11 57 Am. Rep. 642; Bridges v. Lan- S. Ct. 500. Y60 Ct. 23 BREACH AND DISCHARGE. § 698 § 698. Resale by purchaser. — The general rule for awarding damages for a breach of a contract for the sale and delivery of personal property is the difference between the contract price and the market value at the time and place of delivery as fixed by the contract.^ And in an action for breach of contract of sale by the vendor, the vendee cannot recover for profits which he might have received by sale of such goods under a contract made after the contract of purchase.^ But the general rule has exceptions. Thus, where the vendor knows that the purchaser has an existing contract for the resale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same, those profits which would accrue to the purchaser upon fulfilling the contract of resale, may justly be said to have entered into the contemplation of the parties in making the contract, for which the vendor is liable upon breach of the sale.^ But profits of the resale by the vendor are not recoverable, unless the original vendor contracts with reference to the resale.* And the vendor is bound, whether the price of the resale was communicated to him or not, unless the price was such at to yield an extraordinary and unusual profit, which could not be reasonably presumed to have been in contemplation by him at the time he made his contract; in such case he would not be bound beyond such sum as would yield a reasonable and fair 1. Merritt v. Wittich, 20 Fla. Y. 487; Cockburn v. Ashland L. 27; Robinson v. Hyer, 35 Fla. 544, Co., 54 Wis. 619, 12 N. W. 49; 17 So. 745; Davis v. Furniture Co., Guetzkow v. Andrews, 92 Wis. 214, 41 W. Va. 717, 24 S. E. 630. 66 N. W. 119, 52 L. R. A. 209 and 2. Penu V. Smith, 104 Ala. 445, note, 53 Am. St. Rep. 909; Robin- 18 So. 38. son v. Hyer, 35 Fla. 544, 17 So. 3. Orr V. Commission Co., 97 Ga. 745. 241, 22 S. E. 937; Sanderlin v. Wil- 4. Orr v. Commission Co., 97 Ga. lis, 94 Ga. 171, 21 S. E. 291; 241, 22 S. E. 937. See, also, El- Borries v. Hutchinson, 18 C. B., N. binger Actien-Gesellschaft v. Arm- S. 445; Messmore v. Lead Co.. 40 strong, L. R. 9 Q. B. 473; Grebert- N. Y. 422; Booth v. Mill Co., 60 N. Borgnis v. Nugent, 15 Q. B. Div. 85. Y61 §§ 698,6991 TEBMIIirATION OF CONTEACTS. OL 25 profit to his vendee, unless he was informed of the price to be received by his vendee.^ § 699. Building contracts. — Slight defects caused by inad- vertence or unintentional omissions are not necessarily in the way of recovery of the contract price, less the amount by way of dam- ages requisite to indemnify the owner for all expense of con- forming the work to that for which he contracted/ If the con- tract has been substantially performed in good faith, the price can be recovered less the necessary expense of conforming the work to the requirements of the contract.^ And where the plaintiff was prevented to complete the work by the defendant's default, the measure of damages is the difference in the price to be paid and the amount it would cost plaintiff to complete the contract.^ 5. Guetzkow v. Andrews, 92 Wis. 214, 66 N. W. 119, 52 L. R. A. 209 and note, 53 Am. St. Rep. 909. 1. Crouch V. Gutman, 134 N. Y. 45, 31 N. E. 271, 30 Am. St. Rep. 608 and note; Linch v. Lumber Co., 80 Tex. 23, 15 S. W. 208; Aetna Iron Works v. Kossuth Co., 79 Iowa, 40, 44 N. W. 215; Leeds v. Little, 42 Minn. 414, 44 N. W. 309; Moore v. Carter, 146 Pa. St. 492, 23 A. 243; Gallaher v. Sharpless, 134 Pa. St. 134, 19 A. 491; Fla- herty V. Minor, 123 N. Y. 382, 25 N. E. 418. 2. Keeler v. Herr, 157 III. 57, 41 N. E. 750. See, also, Chamberlain V. Hibbard, 26 Oreg. 42^8, 38 P. 437; Sherman v. Connor, 88 Tex. 35, 29 S. W. 1053. 3. Tennessee, etc. R. R. Co. v. Danforth, 112 Ala. 80, 20 So. 502. See, also, Brandt v. Schurchmann, 60 Mo. App. 70. '62 Cll. 23 BREACH AND BISCHARGE. § 700 ARTICLE II. CoMPOsiTioiir WITH Creditors. Section 700. Composition Agreement. 701. Preference to Separate Creditor. 702. Composition with Part of the Creditors. 703. Adjustment and Compromise. 704. Conditional Sales — Validity of in Bankruptcy. § 700. Composition agreement. — A composition agreement is one made witli a sufficient consideration, between an insol- vent or embarrassed debtor and his creditors, whereby the latter, for the sake of immediate payment, agree to accept a dividend less than the whole amount of their claims, to be dis- tributed pro rata in discharge and satisfaction of the whole.* It is an exception to the rule that payment of part of a liqui- dated and due debt is not satisfaction for the whole. It is ex- cepted because there is a consideration to each creditor for his agreement to accept less than his claim in full payment. It is an greement, not merely between the debtor and each creditor, but also between the several creditors. The engagement of each creditor to accept less than his claim is the consideration to each of the others for his like engagement. Each creditor signing has a right to assume that each one is to receive the benefit stipulated in the agreement; that it truly sets forth the terms of composition as to all the parties.^ And such a compo- sition may be binding, even though resting in parol.^ -| 1. Continental Nat. Bank v. Me- Am. Rep. 781; Continental Nat. Geoch, 92 Wis. 286, 66 N. W. 606. Bank v. McGeoch, 92 Wis. 286, 66 2. Newell v. Higgins, 55 Minn. N. W. 606. 82, 56 N. W. 577; Noyes v. Chap- 3. Mellen v. Goldsmith, 47 Wis. man Drake Co., 60 Minn. 88, 61 573, 3 N. 592, 32 Am. Rep. 781; N. W. 901; Lathrop v. Knapp, 27 Good v. Cheesman, 2 Barn. & Ad. Wis. 225; Davenport v. Cong. So- 328; Boyd v. Hind, 1 Hurl. & N. ciety, 33 Wis. 387 ; Mellen v. Gold- 947. smith, 47 Wis. 573, 3 N. 592, 32 763 § YOl TERMINATION OF CONTRACTS. Cll. 23 § 701. Preference to separate creditor. — It is generally held that any separate agreement by which one of the creditors secures to himself benefits not conferred on the others, and which agreement is not disclosed to them before they sign the composition, is a fraud upon them. Such separate agreement and composition agreement also are void as to all parties.^ But another line of decisions holds that if a creditor signs a composition agreement under a secret agreement with the debtor, giving him a preference or some undue advantage over other creditors, this does not, as to such creditors, nullify the composition agreement. The two agreements are to be consid- eretd as separate and independent, and while the secret agree- ment is fraudulent and void, the composition agreement re- mains valid and enforceable.^ In England and in some of the States it is held that the fraud in the secret agreement with the creditor so vitiates the whole transaction of composition, as to disable him from recovering even the amount of the composition, and that the other creditors may declare the composition void.^ But another rule is that the secret and fraudulent agreement, only, is illegal and is inoperative to confer any rights or advan- tage upon the creditor. Such cases fall within the rule, which permits a severasice of the illegal from the legal part of the covenant, and so nothing but the fraudulent contract is void, the composition agreement being valid.* 1. Newell V. Higgins, 55 Minn. 392; Cleveland v. Richardson, 132 82, 85, 56 N. W. 577; Lee v. Sellers, U. S. 318, 10 S. Ct. 100. 81 Pa. St. 473; Patterson V. Boehm, 3. Howden v. Haigh, 11 Ad. & 4 Pa. St. 507; Lawrence v. Clark, El. 1033; Mallalieu v. Hodgson, 36 N. Y. 128; Fay v. Fay, 121 16 Ad. & EL, N. S. 689; Knight v. Mass. 561; Harvey v. Hunt, 119 Hunt, 5 Bing. 432; Leicester v. Mass. 279; Atkinson v. Denby, 7 Rose, 4 East, 372; Leake on Cont. Hurl. & N. 933; Continental Nat. 768; Chitty on Cont. 694; Wald'a Bank v. McGeoch, 92 Wis. 286, 66 Pollock on Cont. 239. Compare N. W. 606. Davison v. McGregor, 8 Mees. & 2. Hanover Nat. Bank v. Blake, Wei. 763. 142 N. Y. 404, 37 N. E. 519, 27 L. 4. Hanover Nat. Bank v. Blake, R. A. 33 and note, 40 Am. St. Rep. 142 N. Y. 404, 32 N. E. 519, 27 L. 607 ; Way v. Langley, 15 Ohio St. R. A. 33 and note, 40 Am. St. Rep. 764 Cll. 23 BKJEACH AND DISCHARQE. §§ Y01-T03 Under the Englisli doctrine where any secret preference has been given either by the debtor or by any person for him, either with or without his direction, if he ratifies it by claiming the benefit, the composition agreement itself also becomes void, and the creditors can then, without returning or offering to return the amount received, bring suit for the amount remaining unpaid.^ § 702. Composition with part of the creditors. — ^While it is true that a debtor cannot, for want of consideration, make a binding composition with a single creditor of an undisputed and liquidated debt, yet it does not follow that such contract must be made with all his creditors. So any agreement entered into between a debtor and two or more of his creditors, or all of them, to take a composition for their debts, is binding upon those who make the agreement.® § 703. Adjustment and compromise. — An adjustment and compromise of a bona fide controversy as to matters which are fairly the subject of debate between the parties at the time of such compromise, each party acting with full knowledge of the facts, and no element of fraud or of serious or injurious mis- take intervening, is valid.^ When a compromise has been fairly effected, its validity will be independent of the merits of the controversy on which it is founded, and it cannot be reopened for the purpose or with the effect of reviving the dispute which it was meant to determine.^ 607. See, also, Pickering v. Rail- Wis. 351, 47 N. W. 618; Hefter v. way Co., L. R. 3 C. P. 235, 250; Calm, 73 III. 296; Cobb v. Tirren, United States v. Bradley, 10 Pet. 137 Mass. 143. (U. S.) 343, 360; Mallan v. May, 6. Continental Nat. Bank v. Mc- 11 Mees. & Wei. 653. Geoch, 92 Wis. 286, 66 N. W. 606; 5. Ex parte Milner, 15 Q. B. Div. Bishop on Insol. Debtors, 484. 606; Bank v. Hoeber, 11 Mo. App. 1. Van Tratt v. Wiese, 36 Wis. 475, 88 Mo. 37, 57 Am. Rep. 359 439; Woodruff v. Marshall, 72 Wis. and note; Kullman v. Greenebaum, 132, 39 N. W. 376; Hennessy v. 92 Cal. 403, 28 P. 674, 27 Am. St. Bacon, 137 U. S. 78, 11 S. Ct. 17. Rep. 150; Laird v. Campbell, 100 2. Kerchival v. Doty, 31 Wis. Pa. St. 159; Mygatt v. Tarbell, 78 476, 487. 765 §§ Y03, Y04 TERMINATION OF CONTRACTS. Gh. 23 A compromise of a doubtful claim is a good consideration for a promise to pay money, and it is no answer to an action brought upon such promise to show that the claim was invalid.' So the fact that the validity of a claim is questionable, as where money is borrowed to be used in an illegal attempt to corner the market of a certain product, constitutes a sufficient consideration for an accord and satisfaction or settlement by which the creditors receive less than the full amount of such claims.* § 704. Conditional sales — Validity of in bankruptcy. — The bankruptcy act does not vest the trustee with any better right or title in the bankrupt or in his creditors at the time the trus- tee's title accrued. Under the act a lien, good at the time of going into bankruptcy as against the debtor and as against all of his creditors, shall remain undisturbed. Therefore, where a conditional sale is valid, if the vendee goes into bankruptcy,^ this does not divest the title as to the vendor. In such case the trustee is not a subsequent purchaser in good faith.® But in some States a conditional sale not recorded is void as against creditors. In such case undoubtedly the trustee will take a valid title as against the vendor and all other parties. The following language of the Federal court is significant: " Our view is not shaken by a different result in cases arising in States by whose laws conditional sales are void as against creditors."^ 3. Hennessy v. Bacon, 137 U. S. Co., 110 Fed. Rep. 514, 49 C. C. A. 78, 11 S. Ct. 17; Saxton v. McNair, 133. 71 Wis. 459, 37 N. W. 439. 6. Low v. Welch, 139 Mass. 33, 4. Continental Nat. Bank v. Mc- 29 N. E. 216. Geoch, 92 Wis. 286, 66 N. W. 606. 7. Hewitt v. Berlin Machine 5. Hewitl V. Berlin Machine Works, 194 U. S. 296, 24 S. Ct. 690, Works, 194 U. S. 296, 24 S. Ct. 690, 28 Nat. Cor. Rep. 609. 28 Nat. Cor. Rep. 609. See, also. In re N. Y. Economical Printing 766 TA^BLE OF CASES. (References are Sec. Abbott V. Creal 22, 47 Abbott V. Draper 480 Abbott V. Inskip 480 Abbott V. Smith 368 Abeles v. Telegraph Co.. 297, 692 Abell V. Munson 81 Abrams v. Railroad Co 288 Abshire v. Corey 507 Accident Ins. Co. v. Crandel.. 19 Acebat v. Levy 141, 152 Acers v. Curtis 391 Acheson v. Miller 394, 437, 438 Ackley v. Palmenter. .128, 131, 663 Acton V. Blundell 345 Adae v. Zangs 530 Adams v. BanK 499, 691 Adams v. Beall 58, 60, 63 Adams v. Brennan 301,317 Adams v. Clem 585 Adams v. Coulhard 409 Adams County v. Hunter 281 Adams v. Crosby 475 Adams v. Crossly 640, 666 Adams v. Fite 67 Adams v. Gay 192, 412 Adams v. Honness 100 Adams v. Kuehn 356, 357, 358 Adams v. Lavens 507 Adams v. New York 272 Adams v. Nichols .573, 586 Adams v. Stewart 200 Adamson v. Jarvis. . . 164, 394, 437 Adderley v. Dixon 667, 669 Addison v. Cox 526 Addison v. Dawson 22 Addyston Pipe and Steel Co. v. United States .... 323, 324, 326 517, 549 Adkins v. Ins. Co 20 to sections.) Sec. Adlard v. Booth 587 Adlin V. Greenleaf 628 Aetna Iron Works v. Kossuth Co 699 Aiken v. Blaisdell. 173, 177, 200, 409 Aiken v. Nogle 133, 134 Aimstead v. Blythe 240 Ainslie v. Wilson 441 Aiwon V. Stout 7 Akerly v. "Vilas 600 Akro V. Demond 417 Albany v. Abbott 225 Albany & Northern R. R. Co. V. Brownell 541 Alder ton v. Bucboz 138 Aldine Manuf. Co. v. Barnard. 464 Aldine Press Co. v. Estes 623 Aldrich v. Aldrich 434 Aldrich v. Ames 123, 129 Aldrich v. Bennett 29 Aldrich v. Blackstone 188 Aldridge v. Bank 194 Alexander v. Comber 139 Alexander v. Gish 367 Alexander v. Haskins 14, 22 Alexander v. O'Donnell 173 Alexander v. Railway Co 295 Alexander v. "Vane 434 Alexander v. Whipple 629 Alexander v. Wright 30 Alford V. Wilson 84 Alger V. Scott 526 Alger V. Scoville 124 Alger V. Thacher 310, 313 Allen V. Allen 562 Allen V. Baker 476, 589 Allen V. Berryhill 9, 21 Allen V. Compress Co 614 Allen V. Denning 192, 205 76Y TABLE OF CASES. Sec. Allen V. Duffie 190 Allen V. Flood 335, 336, 342 Allen V. Ford 464 Allen V. Gardiner 187 Allen V. Hamond 571, 572 Allen V. Hawks 196 Allen V. Jarvis 146 Allen V. Lardner 41, 46, 53 Allen V. Pearce 204 Allen V. Poole 26, 27, 65 Allen V. Rescons 162 Allen V. Stenger 502 Allen V. Thomas 352 Alles V. Billings 9 Allgeyer v. Louisiana. ... 182, 278 310, 549 Allin V. Shadburne 375 Allis V. Billings 6, 21 Allis V. McLean 697 Allison V. Schmitz 235 Alorado v. Nordholt 631 Alson V. Sharpless 85 Alston V. Boyd 8 Alston V. Richardson 450 Alsworth V. Cordtz 66 Alt V. Graflf 67 Alt V. Lohnas 135 Alton V. Bank 450 Alves V. Hodgson 415 Alves V. Schlesinger 520 Amble v. Whipple 638 Ambrose v. Kerrison 485 Amer. Free L. Co. v. Dykes . . 53 Amer. Mort. Co. v. Wright.. 27 American Bank v. Wall 506 American Base Ball Co. v. Harper 677 American Box Machine Co. v. Crossman 667 American Freehold Land Mortg. Co. V. Sewall . . . 399, 420 American Freehold Land Mortg. Co. V. Whaley 229 American Freehold, etc. Mortg. Co. V. Jefferson 417 American Life Ins. Co. v. Isett 17 See. American Oalc Leather Co. v. Porter 85 American Mortg. Co. v. Wright 62 American Steel Co. v. Wire Drawers Union 336 American Steamship Co. v. Young 452 Ames V. Foster 123 Ames V. Oilman 199 Ames V. Jackson 113 Ames V. Kyle 187 Amesbury, etc. Manuf. Co. v. Amesbury 496 Ames Iron Works v. Warren.. 398 Amey v. Cockey 59 Amis V. Smith 563 Amonett v. Montague 355 Amont V. Christofferson 124 Ammondson v. Ryan. .227, 228, 230 Amson v. Dreher 145 Amy V. Dubuque 241 Anderson v. Anderson 567 Anderson v. Amstead 571 Anderson v. Harold 98 Anderson v. Haskell 595 Anderson v. Jett 304 Anderson v. Martindale 380 Anderson v. May 116, 135 Anderson v. Perkins 92 Anderson v. Smith 216 Anderson v. Spencer 129 Anderson v. United States. 323, 324 Andexried v. Railroad Co 306 Anding v. Levy 416 Andre v. Bodman 125 Andrews v. Andrews 400 Andrews v. Bank 464 Andrews v. Creditors 401 Andrews v. Herriot 408 Andrews v. Pond 419 Andrews v. Portland 652 Andrews v. Torrey 243 Androscoggin Water Power Co. V. Metcalf 464 Angel V. McLellan. .45, 47, 49, 470 Anglesea v. Rugeley 576 768 TABLE OF CASES. See. Angier v. Webber 312, 319 Angus V. Robinson 377 Annas v. Railroad Co 288, 295 Anthony v. Heman 365 Anthony v. Leftwich 102 Anthony v. Perciful 389 Antoni v. Greenbow 556 Anvil Min. Co. v. Humble.... 614 Appeal of Morehouse 178 Appel V. Waltman 278 Appleby v. Myers 572, 659 Appleton Bank v. McGilvrey. . 450 Arbuckle v. Cawhan 517 Arbuckle v. Cowlan 283 Arbuckle v. Reaume 412 Archard v. Horner 603 Archer v. Bogn'e 377 Archer v. James 3 Ardress's Appeal 628 Arkansas, etc. R. R. Co. v. Whitby 134 Arkansas, etc. Town Co. v. Lincoln 096 Arkansas Valley Smelting Co. V. Min. Co 519 Armendiaz v. Serna 415 Armfield v. Nash 603 Armitage v. Widoe 28, 60 Armstrong v. Best 397, 401, 408 Armstrong Co. v. Clarion Co . . . 394 438 Armstrong v. Express Co . . 288, 289 Armstrong v. Freeman 230 Armstrong v. Latimer 449 Armstrong v. Toler 3^21, 414 Arnick v. Butler 268 Arnold v. Bournique 643 Arnold v. Clifford 164 Arnold v. Garst 79 Arnold v. Potter 417 Arnold v. Richmond Iron Works 9, 23 Arnot V. Coal Co 305, 324 Arnot V. Pittston 317 Artcher v. Zeh 155, 156 Arthur v. Clark 631 Sec. A.rthur v. Oakes 335, 677 Ashbury Railway, etc. Co. v. Riche 301, 352 Ashcraft v. DeArmand 22 Ascroft V. Butterworth 141 Asher v. Texas 552 Ashley v. Ashley 267, 485 Ashley v. Dixon 343, 346 Ashmead v. Reynolds 21 Ashton V. Dakin 255 Askew V. Bank 406 Askey v. Williams 43, 49 Aspdin V. Austin 603, 622 Association v. Herman 64 Astey V. Emery 152 Astley V. Reynolds 452 Atcheson v. Mallon 165, 324 Atchison, etc. R. R. Co. v. Eng- lish 134, 137 Atchison, etc. R. R. Co. v. Cock- ran 305 Atchison, etc. R. R. Co. v. Law- ler 288 Atherton v. Atherton 400 Atkins V. Banwell 431 Atkins V. Barnstable 473 Atkins V. Kansas 4 Atkins V. Owen 446 Atkinson v. Daniel 624 Atkinson v. Denby 171, 701 Atkinson v. Doherty 340 Atkinson v. Medford 13 Atkinson v. Ritchie 573 Atkinson v. Stewart 390 Atkinson v. Water Works Co . . 349 Atkinson v. Whitehead 584 Atkyns v. Kinnear 319 Atlmtic Bank v. Bank 503 Atlanta, etc. R. R. Co. v. Spear 667, 676 Atlanta Nat Bank v. Burke. . . 428 Atlanta Min. Co. v. Gwyer 228 Atlantic Cotton Mills v. Or- chard Mills 503 Atlantic Phosphate Co. v. Ely. 395 Atlas Nat. Bank v. Holm 321 7G9 TABLE OF CASES. Sec. Atlee V. Fink 451 Attrill V. Patterson 620 Attorney Gen. v. Telephone Co. 307 Attorney Gen. v. Tongue 551 Atwater v. Hough 146 Atwell V. Jenkins 9 Atwell V. Milton 371 Atwood V. Cobb 91, 92, 641 Atwood V. Norton 135 Atwood V. Small 600 Aughton V. Seppings 464 Augur V. Belting Co 515 Augusta Bank v. Augusta 509 Augusta Sav. Bank v. Stellings 406 Auhert v. Maze 176 Aultman v. Booth 114 Aultman v. Flinn 612 Austedt V. Sutter 258 Austin V. Charlestown Semi- nary 57, 66 Austin V. Coal Co 492 Austin V. Foster 650 Austin V. Seligman 348 Avery v. Bowden 594 Ayer v. Telegraph Co 297 Ayers v. Burns 43, 49 Aymar v. Sheldon 115 Babcock v. Chase 352 Babcock v. Fonddu Lac 449 Bnbcock v. Moore 619 Bnbeoek v. Railroad Co 290 Babcock v. Terry 164 Bach V. Owen 156 Bach V. Smith 205 Bachekle v. Fiske 373 Backhouse v. Sneed 616 Backus V. Spaulding 507 Backworth v. Young 577 Bacon v. Bacon 501 Bacon v. Bonham 520 Bacon v. Cobb 573 Bacon v. Green.. 59^, 596, 599, 601 Bacon v. Lee 178 Bacon v. McChrystal 109 Bacon v. Texas 531 See. Badger v. Badger 626 Badger v. Phinney..27, 64, 69, 71 Badische Anilin Und Soda Fab- rik V. Schott 311 Baehr v. Downey 585 Baggett V. Trulock 231 Baggott V. Sawyer 165 Bagley v. Walker 146 Baglies v. Fettyplace 576 Bagshaw v. Parker 15 Bagwell V. McTighe 632 Bahm v. Deig 696 Bailey v. Bussing.43l, 437, 438, 444 Bailey v. De Cuspigny. . . .576, 580 Bailey v. Gibbs 457 Bailey v. Harris 177 Bailey v. Jackson 624 Bailey v. Marshall 128 Bailey v. Mogg 200 Bailey v. Ogden 88 Bailey v. People 1 Bailey v. Smith 148 Bain v. Clark 136 Bain v. Cline 7 Bain v. Railway 115 Bain v. Whitehouse 638 Bainbridge v. Pickering 45 Bainter v. Fults 598 Bake v. Pope 137 Baker v. Bucklin 124 Baker v. Hodgson 573 Baker v. Howell 493 Baker v. Ins. Co 602 Baker v. Jewell 377 Baker v. Johnson 576 Baker v. Kennett 58 Baker v. Lauterbach. . 112, 133, 479 Baker v. Lovett 27 Baker v. Massey 453 Baker v. State 538 Baker v. Stone 67 Balch V. Patten 446, 486, 488 Balderston v. Rubber Co 87 Baldey v. Parker 143 Baldwin v. Flagg 562 Baldwin v. Fletcher 667,681 110 TABLE OF CASES. Sec. Baldwin v. Golde 9 Baldwin v. Gray 401 Baldwin v. Hiers 152 Baldwin v. Hutchinson 498 Baldwin v. McKay 148 Baldwin v. Newark 560 Baldwin v. Rosier 66 Baldwin v. Steamship Co 497 Baldwin v. Telegraph Co 297 Baldwin v. Van Deusen 27 Baldwin v. Williams 144 Baldy v, Stratton 274 Balfour v. Davis 206, 417 Balkan v. Woodstock 638 Ball V. Mannin 6 Ball V. Stover 80 Ballance v. Samuel 371 Ballantine v. Proudfoot 8 Ballard v. Brown 263 Ballard v. Winter 402 Ballas V. Fogely 352 Baltimore Breweries Co. v. Callahan 134 Baltimore, etc. R. R. Co. v. Brydon 639, 645 Baltimore, etc. R. R. Co. V. Glenn 116 Baltimore, etc. R. R. Co. v. Polly 646 Baltimore, etc. R. R. Co. V. Scholes 419 Baltimore, etc. R. R. Co. V. School Dist 582 Banchor v. Mansel 409,447 Bancroft v. Abbott 432 Bancroft v. Dumas 205 Bang v. Windmill Co . . 206 Bangor Bank v. Treat 382, 386 Bangs v. Dunn 283 Bank v. Archer 124 Bank v. Benoist 352 Bank v. Burton 278 Bank v. Cook 208, 226 Bank v. Dealing 232 Bank v. Donnally 638 Bank v. Earle 397 Sec. Bank v. Express Co 289 Bank v. Garlinghouse 232 Bank v. Gettinger 508 Bank v. Gibson 240, 417 Bank v. Grand Lodge 354 Bank v. Hagner 678 Bank v. Hirsch 513, 514 Bank v. Hoeber 172, 701 Bank v. Jones 511 Bank v. Kimberlands. . . . 524, 526 Bank v. Lea 402 Bank v. Mann 417 Bank v. McClellan 227 Bank v. Metcalf 402 Bank v. Owens 173, 176, 179 Bank v. Pratt 232 Bank v. Price 361 Bank v. Webb 642 Bank v. Williams 401 Banking Asso. v. Bank 631, 632 Banking Co. v. Rantenberg. . . . 196 Banks v. Crossland 112 Banks v. Dewitt 555 Banks v. Goodf ellow 8 Banks v. Flint 228 Banks v. Manuf. Co 91 Banks v. McCosker 198 Banks v. Werts 185, 192 Banorgee v. Henly 370 Barabacher v. Lee 382 Barber v. Fox 119 Barber / sphalt Paving Co. v. Denver 359 Barber Asphalt Paving Co. v. Botsford 286 Barclay v. Pearson 270, 272 Barker v. Bank 242 Barker v. Cory 487, 489 Barker v. Hibbard 43 Barker v. Hodgson 569 Barker v. Ins. Co 605 Barker v. Scudder 128 Barker v. Stacy 402 Barker's Case 12 Barley v. Bussing 394 Barlow v. Ins. Co 454 771 TABLE OF CASES. Sec. Barnaby v. Barnaby 27 Barnard v. Backhaus 245, 254 255, 257 Barnet v. Bank 232 Barnett v. Denison 534 Barnett v. Kinney 406 Barnett v. Pratt 352, 353 Barnett v. Warren 445, 446 Barnes v. Barnes 43, 49 Barnes v. Brown 476, 683 Barnes v. Ins. Co 352 Barnes v. Johnson 445 Barnes v. McMullens 490 Barnes v. Ferine 385 Barnes v. Shoemaker 478 Barnes v. Toye 49, 67 Barney v. Douglas 508 Barney v. Eutledge 27 Barnhard v. Lupping 183 Barnhardt v. Walls 114 Barnitz v. Beverly 555, 566, 567 Barnum v. Childs 95 Barnum v. Frost 72, 74 Barr v. Church 227 Barr v. Trades Council 334, 335 336, 341 Barras v. Coal Co 125 Barrett v. Dodge 399 Barrett v. Forney 105 Barrett v. Geisinger 667 Barrett v. Goddard 593 Barrett v. Kelley 398 Barrett v. McAllister 114 Barrett v. Veneer Works .... 696 Barrows v. Turner 402 Barry v. Assur. Co 496 Barry v. Capen 286 Barry v. Ransom 123, 129 Barry v. Ryan 442 Bartel v. Mathias 627 Barter v. Wheeler 421 Barth v. Backus 406 Barthell v. Jensen 236 Bartlett v. Drake 71 Bartlett v. Mystic River Corp. 134 Bartlett v. Smith 255 Sec. BartlefF v. Telegraph Co 297 Bartlett v. Viner 196 Bartholomew v. Jackson 457 Bartholomew v. Finnemore. ... 71 Barton v. Bank 229 Barton v. Benson 165 Barton v. Gray 133 Barton v. Muir 173 Barwick v. Read 517 Bascom v. Zediker 396,399 Bashford v. Pearson 480 Basket v. Moss 279, 280 Bassett v. Hughes 352, 353, 362 Bassett v. Percival 319, 448 Batchelder v. Fisk 388 Batchelor v. Kerkbride 646 Bateman v. Butler 128 Bateman v. Maddox 135 Bates V. Chesbro 154 Bates V. Moore 137 Bates V. Railroad Co 295 Bates V. Townley 431 Batsford v. Every 187 Batson v. King 123 Battenbury v. Vyse 646 Battersey's Case 164, 439 Batts v. Richards Lumber Co. . 515 Baum v. Birchall 401 Baum V. Dubois 99 Baum Iron Co. v. Burg 598 Baumgardner v. Taylor 186 Baurick v. Read 283 Bausernian v. Blunt 638 Bavington v. Clarke 30 Bawber v. Savage 87 Baxter Bank v. Talbot 115 Baxter v. Gray 465 Baxter v. Kitch 110 Baxter v. Portsmouth. .11, 471, 472 Baxter v. Telegraph Co 297 Bayles v. Railroad Co 325 Bayles v. V\'allace 121, 663 Bayley v. Alexander 18 Bayley v. Greenleaf 508 Bayne v. United Stales 502 Beach v. Hotchkiss 377 YY2 TABLE OF CASES. Sec. Beach v. Mullen 619, G40, 651 Beach v. Vandeburg 430, 457 Beal V. Chase 312, 316 Beale v. Williamson 402 Bean v. Bunker 662 Bearce v. Barslovv 233 Beard v. Beard 449, 452 Beard v. Horton 431 Beard v. Linthieum 669 Beardsley v. Hotchlciss 58 Beardsley v. Morgner 521 Beardsley v. Root 446 Beasley v. Teleg. Co 693 Beaton v. Tarrant 336 Beattie v. Callanan 334, 335 Beatty v. Dufief 453 Beaty v. Grim 128 Beaumont v. Greatliead . . . 382, 683 Beaupre v. Noyes 531 Beaupre v. Telegraph Co 297 Beavan v. McDonnell 9 Beavan v. Oxford 508 Beaver County v. Armstrong. 509 Becar v. Flues 135 Bechtel v. Cone 105 Beck V. Allison 668 Beck V. Railway Teamsters Protect. Union 335, 336 Becker v. Hallgarten 510 Becker v. Holm 145 Becker v. Mason 69 Becker v. Northway 490 Becker v. Water Works Co. 349, 350 Beekwell v. Christie 166 Beckwith v. Frisbie 452 Beckwith v. Talbat 83, 85 Bedinger v. Wharton 64, 71 Bedow V. Tonkin '. . . . 474 Beebe v. Johnson 568, 569 Beede v. Lumprey 492 Beekman v. Fletcher 92 Beeler v. Bank 368 Beeler v. Bullett 66 Beeler v. Young 48, 50, 468 Beer Co. v. Massachusetts. 532, 547 Beeston v. Caller 618 Sec. Begbie v. Phosphate Sewage Co. 161 Behrens v. McKenzie 14, 472 Behrensmeyer v. Kreitz 12 Beitenman's Appeal 193 Belford V. Woodward 278, 529 Belknap v. Bender 131 Bell V. Bell 400 Bell V. Boyd 393 Bell V. Campbell 330 Bell V. Chaplain 364 Bell V. Gardiner 450 Bell V. Leggatt 276 Bell V. Lent 234 Bell V. Mahin 185 Bell V. McVicker 283, 517 Bell V. Morrison 384, 634, 638 Bell V. Packard Wl, 420 Bell V. Reynolds 682 Bell V. State 271 Bellamy v. Debenham 85 Bellows V. Sowles 119, 121 Bellows V. Stone 467 Beman v. Wessels 185 Bemis v. Becker 179 Bemis v. Hoseley 379 Benbow v. Soothsmith 125 Benedict v. Bachelder 597 Benedict v. Lynch 669 Bennett v. Asso 417 Bennett v. Davis 28 Bennett v. Hull 139 Bennett v. Judson 503 Bensley v. Bigold 176, 178 Benson v. Drake 186 Benson v. Monroe.449, 452, 497, 501 Benson v. Remington 47, 470 Benson v. Paine 370 Bennson v. Savage 224 Bent V. Cobb 87, 99 Bent V. Manning 468 Benton v. Pratt 344, 346 Bently v. Terry 277 Benton v. Goodale 452 Benze v. Hiatt 361 Benziger v. Miller 686 Berch v. Frolick 15 773 TABLE OF CASES. Sec. Berdsley v. Hotchkiss 66 Beiesford v. Browning 372 Bergamini v. Bastian 319 Bergenthal v. Fribrantz 450 Bergman v. Cleveland 544 Bergman v. McGuire 375 Bergson v. Ins. Co 518 Berkhauser v. Schmitt 452 Berlin Machine Works v. Perry 312 Berly v. Taylor 489 Bermudez Asphalt Paving Co. V. Critchfield 286 Bernard v. Taylor 245, 246 Bernhardt v. Walls 144 Berry v. Clary 186 Berry v. Cooper 288 Berry v. Doremus 134, 137 Berry v. Thompson 234 Berthold v. Fox 561 Besch v. Ins. Co 266 Besore v. Potter 386 Bestor v. Hickey 52 Bestor v. Wathen 302 Bethlehem v. Annis 519 Bethlehem Borough v. Ins. Co. 464 Betts V. Carroll 21 Betts V. Gibbins 164, 394,437 438, 439 Bettsworth v. St. Paul 588 Beveridge v. Livingston 531 Beverly v. Barnitz 566 Beverley's Case 8 Bevier v. Covell 233 Bibb V. Allen 89 Bibber v. Simpson 200 Bice v. Building Asso 125, 127 Bicknell v. Bicknell 46, 73 Biegler v. Trust Co 263 Bigelow V. Benedict. .249, 254, 255 Bigelow V. Ins. Co 19, 20 Bigelow V. Pritchard 560 Billingbey v. Dean 229 Billings V. Ames 328 Billings V. Ins. Co 20 Billing's Appeal 590 Billington v. Cahill 134 Sec. Bingham v. Barley. .. .55, 59, 64 Binney v. Annan 673 Bird V. Muhlinbrink 146, 694 Bird V. Munroe 138 Bird V. Pope 667 Bird V. Randall 370 Birkett v. Chatterton 203 Birkmyr v. Darnell 96 Birmingham Lumber Co. v. Brinson 445 Birney v. Telegraph Co 297 Bisbee v. McAllen 177, 197 Bishop V. Palmer 312 Bishop V. American Preserves Co 320 Bishop V. Palmer. 164, 204, 246, 313 Bishop V. Slocomb 508 Bissell V. Balcom 153 Bissell V. Kellogg 243 Bissig V. Britton 96, 129 Bixby V. Church 124 Bixby V. Dunlap 341 Bize V. Dickanson 87 Black V. Railroad Co 615, 616 Black V. Transportation Co ... . 288 Black V. Woodrow . 579 Blackburn v. Hayes 210 Blackburn v. Smith 448 Blackburn v. Vigors 503 Blacklock v. Dobie 170 Blackstock v. Railroad Co. . . . 615 Blackstone v. Buttemon 622 Blackstone v. Ins. Co 20 Blackstone v. Miller 395 Blackwell v. Webster 404 Blaen Avon Coal Co. v. Mc- Culloh 492 Blagen v. Tliompson 689, 690 Blair v. Railroad Co 295 Blair v. Snodgrass 85 Blair v. Wait 428 Blair v. Williams 561 Blair Town Lat. Co. v. Walker 133 Blake v. Supervisors 27 Blake v. Voight 134 Blake v. Williams 406,407 n4: TABLE OF CASES. Sec. Blakeley v. Blakeley 6, 9 Blakeney v. Goode 144 Blakeslee v. Holt 473,477 Blalock V. Phillips 464 Blanch v. Cochran 609 Blanchard v. Association. .430, 432 Blanchaid v. Ely 697 Blanchard v. Low 450 Blanchard v. Railroad Co 676 Blanchard v. Trim 81 Blanck v. Sadlier 278 Bland v. Fleeman 630 Blanding v. Sargent.. 82, 134, 137 Blaston v. Pye 262 Bleaden v. Charles 440 Bledsoe v. Irvin 368 Blenkinsop v. Clayton 151 Blight V. Page 569, 573 Bliss V. Brainard 205, 408 Bliss V. Lawrence 283, 517 Bliss V. Thompson 440,488 Bliss V. Railroad Co 8 Bliss Co. V. Gas Light Co 654 Bliven v. Lydecker 228 Block V. Dorman 634 Blogen V. Thompson 685 Blood V. Goodrich 81 Blood V. Wilson. .473, 477, 651, 655 Bloom V. Hazzard 281 Bloom V. Richards 180, 181, 184 Bloomer v. Henderson 508 Bloomer v. Mclnerney 226 Bloomer v. Nolan.. 46, 53, 63, 64 Blossom V. Barrett 461 Blount V. Hawkins 129 Blo.xsome v. Williams 180, 187 Blumenthal v. Anderson 578 Blymere v. Boistle 356 Blymer Ice Mach. Co. v. Mc- Donald 696 Blythe v. Railroad Co 615 Board v. Blodgett 628 Board v. Millword 228 Board v. W^agaman 201 Boardman v. Cutter 144 Boardman v. Spooner 85 Sec. Board of Trade v. Kinsey Co . . 249 Boast V. Firth 589 Bobbs-Merrill Co. v. Snellen- burg 339 Bobevtson v. Robinson 279 Bodine v. Glading 668 Boehl V. Railroad Co 288 Boering v. Railroad Co 295 Bog Lead Mining Co. v. Mon- tague 148 Bohannon v. Jones 129 Bohanon v. Pope 352, 3o3 Boice V. Boice 562 Bold V. State 181 Bolton V. Street 115 Bolton V. Tomlin 80, 100 Bona's Appeal 255 Bond V. Bond 8 Bonesteel v. Todd 370 Bonney v. Seely 446 Bonsteel v. Vanderbilt 588 Boody V. McKenney 27, 64, 65 Booge V. Railroad Co 603 Bool V. Mix 68 Boone County v. Jones 635 Booth V. Bank 179 Booth V. Clark 406 Booth V. Illinois 249, 254 Booth V. Mill Co.... 573, 685, 698 Booth V. Sweezy 210 Boozer v. Trague 105 Bordentown v. Wallace 33 Borradaile v. Hunter 17, 18 Borries v. Hutchinson 698 Borum v. Garland 598 Boscowitz V. Express Co 289 Boseley v. Taylor 391 Boston V. Farr 125 Boston Bank v. Chamberlin.. 65 Boston, etc. Co. v. Boston 449 Boston, etc. R. R. Co. v. County 537 Boston Ice Co. v. Potter.. 330, 340 457, 478, 519 Boston Ins. Co. v. Railroad Co. 291 Bostwick V. Atkins 56 Bouchell V. Clary 43 7Y5 TABLE OF CASES. Sec. Boucas V. Cooke 340 Bouchei- V. State Board 200 Boulder Valley, etc. Co. v. Farnham 104 Boulton V. Jones 457, 478, 519 Bour V. Kimball 623 Bourlier v. Macauley 343 Bourne v. Cabot 522 Boursot V. Savage 503 Boutwell V. Foster 205 Bowdish V. Briggs 660 Bowditch V. Ins. Co 175, 177 Bowdoin v. Hammond 218 Bowen v. Hoxie 423 Bowen v. Hall 341, 342 Bowen Nat. Bank v. Wilson.. 283 Bower v. Hadden 524 Bowers v. Bowers 400 Bowery Nat. Bank v. Mayor . . 646 Bowery Nat. Bank v. Wilson . . 283 Bowland v. Windley 624 Bowles V. Field 401 Bowman v. Boyd 456 Bowman v. Coflfroth 284 Bowman v. Miller 243 Bowman v. Neely 222, 224, 225 Bowman v. Railroad Co 648 Boxendale v. Railway Co 325 Boyce v. Anderson 617 Boyce v. Lake 624, 627 Boyce v. Murphy 122 Boyce v. Smith 6, 8 Boyce v. Tabb 416 Boyd V. Brown 697 Boyd V. Gilchrist 691 Boyd V. Hanson 256 Boyd V. Hind 700 Boyd V. Martin ■ 382 Boyd V. Paul 91 Boydell v. Drummond 85 Boyden v. Boyden 65 Boydson v. Goodrich 402 Boyer v. Berryman 9, 21, 22 Boyer v. Bolender 437 Boyer v. Soules 129 Sec. Boyer v. Western Union Tel. Co 337 Boyett V. Potter 445,491 Boykin v. Campell 519 Boyland v. Leonard 515 Boyland v. Railroad Co 293 Boynton v. Hubbard 500 Boynton v. Page 184, 187 Boyse v. Adams 267 Boyson v. Thorn 343 Bozarth v. Dudley 473, 477, 640 Bozeman v. Browning 26, 66 Brace v. Wehnert 668 Bracegirdle v. Heald 134, 137 Brackett v. Blake 283, 515 Brackett v. Edgerton 691 Brackett v. Hoyt 197 Braceville Coal Co. v. People. 2, 540 Bradburne v. Botfield 386 Bradford v. Chicago 571 Bradford Corporation v. Pickles 345 Bradford v. Manly 612 Bradford v. McCormick 636 Bradlaugh v. Newdegate 164 Bradley v. Burwell 374 Bradley v. Fuller 345 Bradley v. Owsley 105 Bradley v. Pierson 341 Bradley v. Pratt 27, 34 Bradley v. Rea 185, 192 Bradley v. Richardson 87 Bradley v. Riches 503 Bradley v. Root 526 Bradner v. RoflTsell 646 Bradshaw v. Beard 485 Bradshaw v. Branan 605 Bradshaw v. Railroad Co 293 Bradshaw v. Van Winkle .... 70 Brady v. Brennan 490 Bragdon v. Perkins-Campbell Co 348 Brakefield v. Anderson 114 Braithwaite v. Aiken 486, 487 489, 490 Braman v. Dowse 353 776 TABLE OF CASES. Sec. Brand v. Brand 419 Brand v. Williams 445 Brandon v. Brown 64 Brandt v. Schurchman 699 Brantley v. Wolf 22, 64 Braxton v. State 373 Brawner v. Franklin 64 Brazee v. Bryant 195 Brechkill v. Randall 538 Breckinridge v. Crocker. .. .85, 92 Breckinridge v. Ormsby..9, 57, 66 Breckinridge v. Taylor 391 Brecknock Company v. Pritch- ard 573 Breed v. Judd 41, 43, 62, 63 Breeze v. Telegraph Co 297 Brennan v. Titusville 552 Bresbane v. Adams 165 Brewer v. Boston Theater .... 384 Brewer v. Dyer 353, 356, 442 Brewer v. Griesheimer 515 Brewer v. Sparrow 487 Brewsen v. Engler , . 287 Brewster v. Bates 634 Brewster v. Kitchell 576 Brewsler v. Sims 510 Brice v. Bannister 526 Brice v. King 352 Brice v. Wilson 485 Brick Presbyterian Church v. New York 576 Bride v. Clark 257 Bridge Co. v. Pomroy 351 Bridgeford v. Tuscumbia 284 Bridgen v. Parkes 485 Bridger v. Goldsmith 276 Bridges v. Lanhan....; 697 Bridges v. Stickney 685 Bridges v. Stephens 275,637 Briggs V. Boyd 497 Briggs V. McCabe 27 Briggs V. Vanderbilt 588 Brigham v. Fayerweather. .22, 23 Bright V. Coffman 427 Brighton v. Railroad Co 664 Brill V. Tuttle 519, 524 Sec. Brimmer v. Rebman 549 Brine v. Ins. Co 555, 565 Brisbane v. Dacres..450, 452, 501 Brisendine v. Martin 389 Bristoe, etc. Co. v. Maggs 85 Bristow V. Lane 352, 353 Bristow V. Sequeville 415 British, etc. Tel. Co. v. Bank.. 503 British Wagon Co. v. Lea 519 Britt V. Hays 602 Brittian v. Rossiter. . 103, 108, 134 Britton v. Royal Arcanum. . . . 269 Britton v. Turner 474 Britton v. Water Works Co.. 349 Britz V. Muscatine 555 Broach v. Smith 231 Broadhead v. Noyes 419 Broadsman v. Paige 391 Broadw:ell v. Getman 82, 137 Broadwell v. Howard 513 Brockhausen v. Bowes 109 Brockway v. Frost 92 Brockway v. Express Co 410 Brodeck v. Farnum 375 Bronson v. Coffin 689 Bronson v. Ins. Co 367 Bronson v. Kimpton 278 Bronson v. Kinzie 555, 556 560, 565, 566 Bro\ATison v. NewBury 557 Bronson v. Rodes 529 Bronson Agri. & B. Asso. v. Ramsdell 262 Brook V. Brook 178, 400 Brook V. Hook 352 Brooklyn v. Railroad Co 614 Brooks V. Berryhill 498 Brooks V. Martin 321 Brooks V. Morgan 94 Brooks V. Stuart 387 Brookshire v. Brookshire 622 Brow V. Brightman 470 Brown v. Adair 202 Brown v. Agnew 433 Brown v. Bank. .124, 233, 234, 275 281, 282, 403 777 TABLE OF CASES. Sec. Brown v. Bateman 526 Brown v. Brown 6 Brown v. Browning 180, 412 Brown v. Buena Vista 625 Brown v. Buttle 460 Brown v. Cable Co 297 Brown v. Caldwell 27 Brown v. Cambridge 379 Brown v. Chase 74 Brown v. Conger 102 Brown v. Delafield '. 634 Brown v. Dillahunts 576 Brown v. Duncan.177, l78, 196, 205 Brown v. Dunn 519 Brown v. Foster 614, 639 Brown v. Harris 595, 599 Brown v. Hodgson 431, 435 Brown v. Holbrook 461 Brown v. Houston 551 Brown v. Ins. Co 353, 577 Brown v. Jodrell 472 Brown v. Jones 399 Brown v. Kimball Co 158 Brown v. Kling 314 Brown v. Mahusin 599 Brown v. Slarsh 379 Brown v. Maryland 553 Brown v. McCune 67 Brown v. McKee 382 Brown v. McKinally 501 Blown V. Mitchell 5 Frown v. Mort. Co 208 Brown v. Mullin 604 Brown v. Nat. Bank 232 Brown v. Nealey 171 Brown v. O'Brien 352 I'rown V. Pollard 102, 104 Brown v. Railroad Co. 293, 421, 482 Brown v. Richardson 15 Brown v. Road Co 450 Brown v. Rodes 278 Brown v. Rounsavell 317 Brown v. Russell 198 Brown v. Smith 697 Brown v. Sutton 105 Brown v. Tel. Co 296 Sec. Brown v. Tuttle 461 Brown v. United States 580 Brown v. Weiland 409 Brown v. Welch 278 Brown v. Wheelock 26 Brown v. Whipple 85, 97 Browne v. Bank 378 Browne v. United States 588 Brownell v. Chapman 697 Brownell v. Harsh 128 Brownell v. Welch Ill Browning v. Carson 369, 382 Browning v. Hamilton 148 Browning v. Morris 500 Browning v. Parker 100 Browning v. Reane 13 Brubaker v. Taylor 624 Bruce v. Flagg 387 Bruce v. Snow 570 Bruce v. Warwick 66 Bruen v. Hone 427 Bruen v. Marquand 377, 381 Brummitt v. McGuire 450 Brundage v. Portchester 446 Bruner v. Nisbett 124 Bruinaguire v. Tillinghast. . . . 455 Bryan v. Booze 185 Bryan v. Lewis 255 Bryan v. Reynolds 284,285 Bryan v. Spurgin 580 Bryan v. Watson 190 Bryant v. Richardson 41 Bryson v. Home 449 Buchanan v. Hubbard 65 Buchanan v. Ins. Co 266 Buchanan v. Moran 132 Buchanan v. Sahlein 499 Buchegger v. Sehultz 278 Buck V. Biddeford 191 Buckalew v. State 271 Buckey v. Buckey 7 Bucklen v. Hasterlik 678 Buckley v. Beardsley 93 Buckley v. Humanson 198 Buckhardt v. Buckhardt 309 Buckinhamshire v. Drury. ... 49 7Y8 TABLE OF CASES. Sec. Buckman v. Bergholtz 173 Buckman v. Nash 142 Bucknall v. Story 455,456 Buckner v. Colcote 626 Buckner v. Stewart 392 Budd V. Hiler 446, 464 Budd V. New York.. 296, 538, 539 Buffalo V. O'Malley 450 Buffalo, etc. Land Co. v. Belle- vue ,etc. Imp. Co 588 Buffalo, etc. R. R. Co. v. Rail- road Co 576 Bugbee v. Kendrickson 122 Building and Loan Asso. v. Logan 417 Bulger V. Ross 5 Bulkley v. United States 695 Bull V. Faulkner 518 Bull V. Quincey 440 Bullard v. Hascall 445 Bullard v. Smith 249 Bullraan v. Fenwick 580 Bullock V. Dommit 573 Bullock V. Turnpike Co 133 Bullowa V. Orga 87 Bumgarden v. Leavite 674 Burapass v. Webb 642 Bundy v. Hyde 460 Bunn V. Guy 316, 319 Bunn V. Prather 573 Bunn V. Riker 245, 262 Bunneman v. Wagner 128 Burbridge v. Fockler 284 Burchard v. Dunbar 419 Burchfield v. Moore 448 Burdick v. People 173, 293 Burdett v. Williams 67 Burge V. Cedar, etc. Railroad Co 599 Burger v. Rice 519 Burgess v. Pollock 8 Burgharl v. Hall 468 Burgoyne v. Ins. Co 373 Burk V. Railroad Co 288 Burke v. Allen 9, 21 Burke v. Mayor 642 Sec. Burley v. Russell 67 Burlingame v. Burlingame. . . . 110 Burlington Mut. L. Asso. v. Heider 219 Burmudez Asphalt Co. v. Critchfield 284 Burn V. Carvalho 526 Burn V. Miller 666 Burney v. Ludling. . .284, 301, 302 Burnett v. Baxter 254 Burnett v. Crandall 524, 526 Burnett v. Railroad Co 421 Burnett v. Telegraph Co 188 Burnham v. Kidwell 6, 9, 12 14, 21, 25 Burnherr v. Rau 354 Burns v. Moore 183, 185 Burns v. Munger 614 Burns v. Railroad Co 395, 408 Burnside v. Merrick 380 Burphalter v. Farmer 126 Burr V. Beers 352, 353 Burr V. Boyer 393 Burrill v. Crossman 580 Burroughs v. Lott 391 Burroughs v. Railroad Co 290 Bursinger v. Bank 267 Burt V. Meyer 249 Burt V. Union Cent. L. Ins. Co 545 Burtis V. Thompson 604, 607 Burton v. Curyea 513 Burton v. Driggs 486, 491 Burton v. Henry 382 Burton v. Larkin 348, 351, 354 Burton v. Stevens 636, 637 Burton Coal Co. v. Cox 492 Burton Lumber Co. v. Wilder. 443 Buser v. Shepard 562 Bush V. Brown 498 Bush V. Linthicum 51, 60 Bush V. Lisle 5 Tush V. Moore 503 Bushby v. Wunday 258 Bushel V. Wheeler 152 Bushnell v. Bushnell-. . 388, 390, 434 Y79 TABLE OP CASES. Sec. Bushwell V. Bicknell 613 Butchers' Union Co. v. Crescent City Co 271, 535, 547 Butler V. Butler 609 Butler V. Chambers 542 Butler V. Foster 129 Butler V. Lee 185, 192 Butler V. Horwitz 278, 529 Butler V. Palmer 561 Butler V. Pennsylvania. . .'f26, 530 Butler V. Sliehan 134 Butnor v. Teleg. Co 693 Butterfield v. Byron 575, 659 Butterfield v. Merlin 622 Butters v. Glass 116 Button V. Russell 652 Butts V. Broughton 237 Buxton V. Bedall 139 Buxton V. Lester 675 Byerlee v. Mendel 474 Byrd v. Boyd 605 Byrd v. Hughes 451 Byxbie v. Wood 518 Cabot V. Park Co 679 Cadavel v. Collins 497,501 Cagger v. Lansing 84 Cadman v. Markle 110, 479 Cahill V. Bigelow 113, 122 Cahill V. Hall 457,483 Cahill V. Heuser 655 Cain V. Warf ord 7 Calahan v. Ward 125 Caldecatt v. Smythies 136 Calder v. Rutherford 371, 380 Caldwell v. Alton 198 Caldwell v, Frazier 669 Caldwell v. Signourney 634 Caldwell v. Wentworth ,. 225 Calhoun v. Calhoun 576 Calhoun v. Phillips 183 Calkins v. Chandler 121, 127 128, 132 Call V. Hagger 559 Call V. Palmer 211 Callahan v. Wood 460 Sec. Callanan v. Chapin 84 Calland v. Loyd 502 Callaway v. Mallett 293 Callaway Mining Co. v. Gark. 697 Catterill v. Stevens 156 Callis V. Bothamly 98 Callis V. Day 27, 65 Callo V. Brouncker 618 Calverley v. Worth 85 Cambioso v. Moffet 414 Camden, etc. R. R. Co. v. For- syth 290 Camerlin v. Palmer 47, 470 Cameron v. Clark 445 Cameron v. Durkheim 255 Cameron v. White 687 Cammack v. Lewis 266,267 Camp V. Moreman 93 Camp V. Telegraph Co 297 Camp V. Randall 243 Campbell v. Baxter 451 Campbell v. Coon 403 Campbell v. Clark 452 Campbell v. Crampton 397 Campbell v. Fleming 600 Campbell v. Kuhn 21, 25 Campbell v. Potter ... 667, 668, 671 Campbell v. Richardson. . .246, 262 Campbell v. Ridgeley 67 Campbell v. Segars 202 Campbell v. Stakes 69 Campbell v. Thomas 84 Ci mpbell v. Young 192 Campion v. Kille 241,243 Canal Trustees v. Lynch 643 Cauda v. Wick 654 C. & C. Electric Motor Co. v. Frisbie 612 Candee v. Skinner 635 Candee v. Smith 370 Candee v. Telegraph Co 297 Canfield v. Fairbanks 14 Cannan v. Bryce 164, 447 Cannell v. Smith 451 Cannon v. Brice 176 Cannon v. Handley 84 Y80 TABLE OF CASES. See. Cannon v. Olsburg 66 Cannon v. Ryan 186,192 Cannon v. Telegraph Co 297 Cantee v. Bennett 398 Cantine v. Phillips 468 Canty v. Latteiner 524, 526 Cappell V. Hall 280 Carberry v. Tannehill 667,669 Card V. Hope 279 Cardell v. McNeil 128 Cardigan v. Page 452 Carew v. Johnston 25 Carew v. Rutherford 334,341 452, 497 Carey v. Freeholders 487 Cargill V. Power 561 Carib Prince 421 Carleton v. Woods 204 Carlisle v. Hill 212 Carlton v. Cummings 15 Carman v. Smick 142 Carmichael v. Carmichael . . . . 667 Carnegie v. Holt 685 Carnegie v. Morrison 353, 356 357, 403 Carney v. Carney 105 Carney v. Mosher 136 Carney v. Newberry 596, 597 Carow V. Kelly 237 Carpenter v. Atherton 278, 529 Carpenter v. Bank . 696 Carpenter v. Carpenter. .43, 64, 67 68, 468 Carpenter v. Davis 113 Carpenter v. Holcomb 606 Carpenter v. Kent 427 Carpenter v. Pridgen 67 Carpenter v. Stevens 568 Carr v. Chapman 626 Carr v. Clough 57 Carr v. Drigs 624 Carr v. Halliday 22 Carr v. Hamilton 506 Carr v. Hilton 626 Carr v. Railway Co 428 Carrall v. Railroad Co 514 Sec. Carralton v. Bazzett 198 Carrell v. Potter 27, 51 Carren v. McNulty 614 Carrick v. Mincke 88 Carrier v. Sears 21 Carrington v. Roots 100, 112 Carroll v. Welch 474 Carson v. Cochran 449 Carter v. Ailing 312 Carter v. Beckwith 9 Carter v. Carter 386 Carter v. Nichols 521 Carter v. Shorter 85 Carter White Lead Co. v. Kiv- lin 134 Carthage v. Gray 589, 591 Carthrae v. Brown 382 Case V. Gerrish 171 Case V. Dodge 401 Case v. Johnson 173 Cashman v. Root 252,253 Cason V. Cheely 139, 146, 694 Cassady v. Clarke 590 Cassidy v. Cattle Co 656 Cassitt V. Hobbs 92 Caster v. Aides 519 Castro V. Giel 631 Catawissa R. R. Co. v. Titus . . 382 Catlin V. Tobias 474, 477, 478 Catling V. King 89 Cato V. Thompson 681 Catskill V. Messenger 379 Catt V. Tourle 317, 677 Caulkins v. Hellman 145,148 Cavanaugh v. Casselman 98 Cave V. Hastings 85 Center v. McQuestion 123 Central Build. & Loan Asso. V. Lampson 219 Central Bridge Corp. v. Abbott 423 Central Land Co. v. Laidley. . 531 Central Line v. Lowe 615 Central Salt Co. v. Guthrie... 305 Central Shade Rofler Co. v. Cushman 317. 322 Central S. R. Co. v. Cushman 317 781 TABLE OF CASES. Sec. Central Trans. Co. v. Car Co 303, 330 Central Trust Co. v. Bur- ton 240, 417 Central Trust Co. v. Railroad Co 330 Central Union Tel. Co. v. Brad- bury 533 Central Union Tel. Co. v. State 298, 538 Central Union Telephone Co. V. Swoveland 298 Chace v. Chapin 506 Chadwick v. Knox 287 Chafee v. Bank 406 Chaffee v. Jones 388 Chafee v. Sprague 674 Chaffe V. Wilson 237 (/hamberlin v. McCallister. . . . 603 Chamberlin v. Morgan .... 605, 611 Chambers v. Baldwin 343 Chambers v. Goldwin 222 Chamberlain v. Barnes 321 Chamberlain v. Hibbard 699 Chamberlin v. Morgan 602 Cljamberlin v. Scott 599 Ciiamblee v. Baker 474 Champion v. Ames.. 182, 272, 274 326, 411 Champion v. Doty 126 Champion v. Hinkle 562 Champion v. Plummer 88 (liamplin v. Parish 97 Champlin v. Rowley 474, 477 Chancey v. May 367 Chancey v. Powell 631 Chandler v. Simmons.. 22, 58, 64 Chandler v. Sanger 497 Chandler v. State 639, 655 Chaney v. Bryan 8 Chaney v. Sraallwood 15 Chanter v. Leese 377, 382 Chapel V. Hicks 666 Chapin v. Brown 309 Chapin v. Shafer 58, 66 Chapin v. Longworth 519 Sec. Chapins v. Matliol 237 Chapin's Will Case 8 Chaplin v. Rogers 151 Chapline v. Atkinson 96 Chapman v. Dalton 588 Chapman v. Hughes. . . .30, 47, 468 Chapman v. Ins. Co 20 Chapman v. Railroad Co 537 Chapman v. Robertson. ... 115, 241 Chapman v. Searle 593 Chapman v. Telegr. Co 693 Chappel V. Barkley 125 Chappel V. Brockway 274, 314 Chappie V. Cooper.. 33, 40, 43, 468 Chapsky v. Wood 277 Charles v. Hastedt 63, 70 Charles v. Hoskins 635 Charleston v. Benjamin 181 Charlestown v. Rogers 540 Charlestown School Town v. Hay 587 Charles River Bridge v. War- ren Bridge 534, 535 Charnley v. Honig 660 Chase v. Barrett 588 Chase v. Cliapin 358 Chase v. Lowell 83 Chase v. Telegr. Co 693 Chase v. Trafford ._ 124 Chase v. Wliitten 206 Chasemore v. Richards 345 Chatfield v. Wilson 345 Chavannah v. State 270 Cheale v. Kenward TUTS Cheesman v. Wiggins 129 Cheever v. Schall 83 Chemical Co. v. Pegram 393 Chemical Nal. Bank v. Bank. . 445 Chenango Bridge Co. v. Bridge Co 534 Cheney v. Cook 98 Cheney v. Dunlap 237 Cheney v. Roodhouse 72 Cheny v. Cowan 576 Cheorier v. Robert 632 Cherry v. Henning 82 782 TABLE OF CASES. Sec. Chesebrough v. Conover. . .284, 285 Chesapeake, etc. Co. v. Tele- graph Co 307 Chesapeake & Potomac Tele- phone Co. V. Tel. Co 538 Chesley v. King 345 Cheveront v. Textor 171 Chew V. Bank 22, 23 Chewning v. Johnson 408 Chicago V. Allcock 224 Chicago V. Brownell 264 Chicago V. Railroad Co 538 Chicago V. Rumpff 304 Chicago Attach. Co. v. Singer Mach. Co 102, 111 Chicago, etc. Coal Co. v. Liddell 131 Chicago, etc. R. R. Co. v. Abels 617 Chicago, etc. R. R. Co. v. Ackley 539 Chicago, etc. Asso. v. Hunt ... 63 Chicago, etc. R. R. Co. v. Bell. 300 Chicago, etc. R. R. Co v. Chi- cago 539 Chicago, etc. K. R. Co. v. Davis 288, 291 Chicago, etc. xi. R. Co. v. Dumser 293, 294 Chicago, etc. R. R. Co. v. Hale 682 Chicago, etc. R. R. Co. v. Howison 696 Chicago, etc. R. R. Co. v. Iowa 325, 539 Chicago, etc. R. R. Co. v. Miller 300 Chicago, etc. R. R. Co. v. Minnesota 538, 539 Chicago, etc. R. R. Co. v. Mulford . .293, 294 Chicago, etc. R. R. Co. v. People 306 Chicago, etc. R. R. Co. v. Sawyer 580 Chicago, etc. R. R. Co. v. Simon 290 Chicago, etc. R. R. Co. v. Solan 549 Sec. Chicago, etc, R. R. Co. v. Wabash, etc. R. R 324 Chicago, etc. R. R. Co. v. Wallace 288 Chicago, etc. R. R. Co. v. Wellman 539 Chicago Gas Light & Coke Co. V. Coke Co 301, 303, 304 Chicago Union Traction Co. v. Chicago 305 Childs V. Dobbin 69 Childs V. Monins 120 Childers v. Deane 208 Chillingworth v. Tinware Co... 402 Chipley v. Atkinson 341, 342, 344, 347 Chipman v. Morrill 388, 436 Chippewa, etc. R. R Co v. Railroad Co 284 Chism V. Schiffer 643, 646 Christ V. Armour 604 Christian v. Ins. Co 427 Christie v. Railroad Co 325 Christie v. Sawyer 526 Christmas v. Russell 526 Christy v. Sullivan 449 Church V. Brown 94 Church V. Coke Co 444 Church V. Proctor 275 Churchill v. Holt 438 Churchward v. Queen 579 Churchward v. Reg 061 Citizen's Bank v. Grafflin 450 Citizen's Kat. Bank v. Donnell 232 City Bank v. Railroad Co 511 City Loan Asso. v. Gallagher.. 219 City Loan Co. v. Cheney 219 Civil Rights Cases 509 Claffin V. Kimball 526 Claflin V. Boorum 212 Claflin V. Godfrey 448 Claflin V. Mayer 398 Clampet v. Bells DO Clancy v. Overman 580 Clancey v. Salt Manuf. Co 320 Clapp V. Pawtucket Inst 375 783 TABLE OF CASES. Sec. Clapp V. Webb 123, 128 Claremont Bank v. Wood. .382, 386 Clark V. Allen 267 Clark V. Baker 448 Clark V. Burnham 144 Clark V. Cable 377 Clark V. Clark 105, 400 Clark V. Crosby 312 Clark V. Finlon 239 Clark V. Gilbert 475, 589 Clark V. Goddard 27 Clark V. Howard 354 Clark V. Hurd 157 Clark V. Iowa City 241 Clark V. James 128 Clark V. Jones 125 Clark V. Leslie 48, 49, 469 Clark V. Lyon 352 Clark V. Marsiglia. . .579, 603, 608 Clark V. Mayor 610 Clark V. McFarland 361 Clark V. Needham 321 Clark V. Parish 371 Clark V. Pendleton 134 Clark V. Pinney 445 Clark V. Railroad Co 617 Clark V. Reyburn 555 Clark V. School Dist 599 Clark V. Sisson 212 Clark V. Watson 646 Clark V. White 171 Clarke v. Dutcher 449 Clarke v. Hawkins 506 Clarke v. 5lariott 151 Clarke v. Shee 502 Clarks v. Spence 275 Clason V. Bailey 83, 98 Classey v. Ins. Co 267 C'lawson v. Munson 229 Clay V. Powell 317 Clay V. Severance 434 Clay V. Yates 164, 694 Clayton v. Andrews 139 Clayton v. Blakey Ill Clayton v. Ellis 567 Clayton v. Kynaston 377 Sec. Clayton v. Somers 485 Cleary v. Sohier 572, 659, 665 Clearwater v. Meredith 384 Clegg V. Levy 415 Clemens v. Wilkinson 624 Clement v. Telegraph Co 297 Clements v. Railroad Co 300 Clement's Apeal 129 Clendening v. Church 266 Clendening v. Wyatt 520 Cleveland v. Construction Co . . 4 Cleveland v. Richardson 701 Cleveland, etc. Railroad Co. v. Closser 324 Clewes V. Jamison 249, 254 Clifford V. Brandon 342 Clifford V. Luhring 121, 123 125, 132 Clifford V. Watts 568, 571 Clift V. Schwabe 18 Clinan v. Cook 103 Clinton Bank v. Hart 370 Clippinger v. Hepbaugh . . . 282, 284 Clodfelter v. Cox 508 Close V. Phipps 452 Clouch V. Moyer 433, 441 Clough V. Davis 185 Clough V. Goggins 183 Clough V. Kyne 402 (Jlovves V. Brooke 468 Coil Creek M. Co. v. Moses 492 Coates V. Sangston C55 CoatoH V. Wilson 39 Cobb V. Billings 205 Cobb V. Charter 497 Cobb V. Tirrell 701 Cobbey v. Buchanan. 40, 42, 50, 67 Cobleigh v. Pierce 171 Coburn v. Ware 387 Cochran v. Ward 115, 116, 205 Cochran v. Railroad Co 661 Cockburn v. Ashland Co.. 690, 698 Cocke V. Montgomery 7 Cockle V. Flack 210 Cockrell v. Thompson 249 Cocks V. Simmons 37 V84 TABLE OF CASES. Sec. Cocks V. Varney 363 Code V. Carlton 515 Coddingham v. Goddard 88 Codington v. Bispham 5G2 Coddington v. Goddard 83 Codman v. Krell 398 Cody V. Railroad Co 292 Cody V. Quarterman Ill Coe V. Erral 326, 395 Coffee V. Williams 429 Coffin V. Landis 620, 622 Cogel V. Mickow 558 Coghlan v. R. R. Co 399, 419 Cohen v. Cohen 460 Cohen v. Envelop Co 320 Cohn V. Plumer 473 Coit V. Stewart 490 Cole V. Cole 13 Cole V. Edwards 319 Cole V. Cunningham 258, 406 Cole V. Hutchinson 122, 125 Cole V. Kernon 515 Cole V. Malcom 435 Cole V. Milmine 255 Cole V. Pennoyer 27, 28 Cole V. Singerly 134 Coles V. Trecothic 85 Colburn v. Patmore 164 Colburn v. Phillips 356 Colburn v. Woodworfh 605 Coleman v. Ballandi 558 Coleman v. Foster 509 Coleman v. Frazer 7 Coleman v. Hiler 354 Coleman v. Thurmond 628 Coleman v. Whitney 352 Colgin V. Bank 232 Collar V. Patterson 460 Collard v. Railroad Co 683, 684 Collier v. Coates 480 Collins V. Blantern 330, 500 Collins V. Loche 309, 322 Collins V. Price 603 Collins V. Railroad Co 532 Colliins V. Stanfield 124, 125 Collins V. Sherman 535 Sec. Collins . Townley 7 Collister v. Hayman 509 Collyer v. Collyer 460 Collyer v. Moulton 608 Colman v. Jenkins 442 Colsell V. Budd 624 Columbia College v. Thacher.. 672 Columbia County v. King. .^22, 224 Columbus, etc. R. R. Co. v. Bridges 616 Columbus, etc. R. R. Co. v. Watson 676 Colwell V. Peden 497 Comes V. Lawson 112 Combs V. Bateman 156 Combs V. Scott 625 Commercial Bank v. Davidson. 420 Commercial Bank v. Jackson.. 403 Commercial F. Ins. Co. v. Morris 129 Commercial Nat. Bank v. Gil- lette 148 Commissioners v. Water Power Co 541 Commonwealth v. Alger 547 Commonwealth v. Evans 542 Commonwealth v. Farren 542 Commonwealth v. Gardner.... 551 Commonwealth v. Graham .... 29 Commonwealth v. Hamden.... 87 Commonwealth v. Hamilton Mfg. Co 4, 544 Commonwealth v. Harmel 551 Commonwealth v. Harrington. 274 Commonwealth v. Has 181 Commonwealth v. Isenberg. ... 2 Commonwealth v. Josselyn. ... 189 Commonwealth v. Keary 173 Commonwealth v. Kendig 193 Commonwtalth v. Lane 400 Commonwealth v. Nesbit 181 Commonwealth v. Newhall . . . 198 Commonwealth v. Ober 551 Commonwealth v. Perry . . 2, 4, 540 Commonweath v. Railroad Co. 188 534, 541 T85 TABLE OF CASES. Sec. Commonwealth v. Sampson. 188, 189 Commonwealth v. Sheriff 270 Commonwealth v. Simonds.... 264 Commonwealth v. Sisson 270 Commonwealth v. Specht 181 Commonwealth v. Thacher.... 271 Commonwealth v. Vrooman. . . 545 Commonwealth v. Waite 542 Commonwealth v. Wilson 173 Commonwealth v. Wright 270 Com. Nat. Bank v. Burch 508 Comons v. Boyei" 180 Compton V. Martin 82 Comstock V. Hier 446 Comslock V. Norton 130 Concord v. Rumsey 13 Conkey v. Hart 560 Conley v. Blalock 202 Conn V. Coburn 34, 48, 469 Conn V. McCollough 351 Connecticut Ins. Co. v. Lathrop 19 Connecticut Life Ins. Co. v. Akens 19 Connecticut Mut. L. Ins. Co. V. Groom 19 Connelly v. Parsons 166 Connelly v. Telegr. Co 693 Connelly v. Union Sewer Pipe Co 2, 321, 341 Conner v. Baldwin 84 Conner v. Henderson 448 Conner v. New York 426 Conner v. Shew 485 (Jonners v. Holland 242 Conn. Mut. L. etc. Insurance Co. V. Cushman. . . .555, 556, 564 Connor v. Black 248, 249, 251 Conover v. Van Mater 239 Conrad v. Lane 67 Conroe v. Birdsall 27, 61 Conrey v. Brandegee 622 Constable v. Steamship Co. . . . 288 Conservative Build. & Loan Asso. V. Cady 219 Consumers Oil Co. v. Nune- maker 312 Sec. Consumers' Pure Ice Co. v. Jen- kins 697 Continental Bank v. McGeoch. 171 700, 701, 702, 703 Conturier v. Hastie 87, 128 571, 572 Converse v. Brainerd 616 Conville v. Sheridan 427 Conway v. Cutting 526 Cook V. Bell 518 Cook V. Berrott 352 Cook V. Bonitz 427, 429 Cook V. Boston 452 Cook V. Cook 400 Cook V. Cole 506 Cook V. Collingridge 15 Cook V. Husted 425 Cook V. Johnson 316 Cook V. McCabe 575, 659 Cook V. Millard 146 Cook V. Moffat 398 Cook V. Parker 9 Cook V. Pennsylvania 551 Cook V. Phillip 179 Cook V. Redman 135 Cook V. Roche 402 Cook V. Shipman 284 Cook V. Todd 420 Cook V. Van Horn 406 Cook V. Willard 694 Cooley V. Lobdell 104 Cooley V. Wardens 548 Coombs V. Railroad Co 148, 152 Coombs V. Wilkes 88 Coon V. Spicer 234 Cooper V. Allport 43 Cooper V. Cooper 461, 487 Cooper V. Elston 139 Cooper V. Fynmore 508 Cooper V. Griffin 200 Cooper V. Hornsby 101, 113 Cooper V. Ins. Co 18 Cooper V. Nock 208 Cooper V. Rhodes 26 Cooper V. Waldegrave 115 Cooper Manuf. Co. v. Ferguson 411 786 TABLE OF CASES. Sec. Coosa River Steamboat v. Bar- clay 616 Coote V. Jeeks 407 Cope V. Rowlands 173, 175, 177 178, 179 Cope V. Wheeler 234, 240, 241 Coopeland v. Summers 355 CopenratH v. Kienly 12, 22 Coquillard v. Bearss 284 Corbet v. Littlefiefd 402 Corbett v. Gaslight Co 98 Corbett v. Watson 139 Corbin v. Tracy 673 Corcoran v. Bowers 212 Corcoran v. Coal Co 254 Cordes v. Miller 576 Corkins v. Collins 127 Corliss V. Fleming 634 Corliss V. Walker Co 340 Cornell v. Electric Co 128 Corning v. Ludlum 243 Cornish v. Abington 428 Cornwall v. Gould 389 Corpe V. Overton 38, 63 Corporation v. Minden 181 Cort v. Railway Co.. 579, 594, 606 Corwin v. Wallace 473, 477 Costar V. Brush 328 Coster V. Pruyn 362 Costigan v. Lunt 382 Costigan v. Railroad Co... 602, 605 Cota V. Mishow 650 Cotheal v. Blydenburgh 241 Cotterell v. Button 629 Cothran v. Ellis. ^46, 249, 251, 254 Cottrell v. Southwick 234 Gotten V. McKenzie 204 Cotton v. Ulnor 8 Couch V. Kansas City 452 Couch V. Mills 376, 377 Coughlin V. Knowles.lOl, 102, 480 Council V. Burnett 499 County V. Hinkley 524, 526 County Court v. Griswold .... 540 Coupland v. Railroad Co 617 Courtwright v. Courtwright . . 470 787 Sec. Courtwright v. Deeds 351 Courtright v. Leonard 148 Cover V. Smith 249 Covey V. Cutler 406 Covington, etc. R. R. Co. v. Sanford 539 Cowan V. Fairbrother 312 Cowan V. Milbourn 274, 275 Cowes V. Lawson 480 Cowles V. Brittian 551 Cowdin V. Cottgetren 122 Cox V. Brewing Co 134 Cox V. Johnson 26 Cox V. Mailatt 563 Cox V. Valkert 506 Cox V. McGowan 53 Cox V. Montgomery 626 C ox V. Painter 90 Cox V. United States 240, 420 Coxe V. Martin 560 Coxhead v. Mullis 26 Coyle V. Campbell 200 Crabtree v. Messersmith 594 Craddock v. Mortgage Co 330 Craft v. McConoughy.250, 305, 320 Crafts v. Carr 43 Crafts v. Sweeney 375 Cragin v. Lamkin 406 Cragin v. Railroad Co 615 Craig V. Van Bebber 53, 58 Craig V. Williams 402 Grain v. Petrie 685 Cram v. Cram 7 Crampton v. Ballard 352 Crampton v. Logan 627 Grandall v. Payne 354 Crandall v. Wellig 667 Crandell v. White 260, 261 Crane v. Ailing 378, 379 Crane v. Gough 101 Crane v. Kildorf 600 Crans v. Hunter 352 Cranshay v. Collins 15 Cranston v. Linihet 437 Crapo V. Kelly 406 Crary v. Railroad Co 291 TABLE OF CASES. Sec. Clary v. Van Bebber 64 Craven v. Bates 240 Craven v. Freeman 388, 436 Cravens v. Cotton Mills Co 384 Crawford v. Brooke 515 Crawford v. Brown 348 Crawford v. Edison 121, 132 Crawford v. Edwards 353 Crawford v. Johnson 214 Crawford v. Kink 128 Crawford v. Railroad Co 290 Crawford v. Russell 500 Crawford v. Soovell 22, 23 Crawford v. Spencer 249, 251 254, 259 Crawson v. Telegr. Co 693 Crayton v. Clark 507 Creighton v. Sanders Ill Crescent Manuf. Co. v. Hanuf. Co 605, 62^, 686, 687 Cressinger v. Welch 56, 64 Cribbs v. Soule 499 Crider v. Association 222 Crim v. Post 234 Crippen v. Heermance 235 Cripps V. Hartnall 123, 129 Cripps V. Reade 448 Crisfield v. State 434 Criswell v. Whitney 405 Critten v. Bank 428 Crockett v. Scribner 146 Croft v. Ins. Co 80, 129 Cromwell v. County of Sac .... 115, 399, 417 Cronan v. Fox 402 Cronin v. Olson 211 Cronk v. Trumble 667 Crookshank v. Burrell 139, 146 Crosbie v. McDonald 106 Crosby v. Fitch 583, 615 Crosby Hardware Co. v. Tester ' 145, 154 Crosman v. Lynn 191 Cross V. Cheshire 431 Cross V. O'Donnell 145 Cross V. People 270 Sec. Cross V. Richardson. .121, 128, 271 Cross V. Trusdale 365 Crotty V. Ins. Co 266, 267 Crouch V. Gutman 699 Crowe V. Peters 7 Crowell V. Curner 353 Crowder v. Austin 166 Croy v. Toney 135 Crum V. Sawyer 520 Cubbege v. Napier 240 Cuddee v. Rutter 674 Cuff V. Penn 648 Culbreath v. Culbreath 453 Cullen V. Sears 666 Culver V. Bigelow 221 Culver V. Pullman 208 Cumberland Glass Manuf. Co. V. Glass Bottle, etc. Asso .... 336 Cumberland R. R. Co. v. Baab. 302 Cumming v. Fisher 441 Gumming v. Hackley 446 Cummings v. Arnold 81 Cummings v. Foss 321 Cummings v. Powell. . . .27, 57, 64 Cummings v. People 371 Cummings v. Stone Co 320 Cummington v. Belchertown. . . 400 Cummins v. Wise 213 Cundell v. Dawson 178, 196 Cunningham v. Bank 257 Cunningham v. Irwin 468 Cunningham v. Monroe 452 Cunningham v. Reardon 468 Cunningham v. Williams 98 Curran v. Galen. 334, 335, 336, 341 Current v. Fulton 384 Currie v. Anderson 151, 152 Currie v. Railroad Co 302, 661 Curry v. Plow Co 51, 52, 70 Curson v. Mcnteiro 370 Curt v. Lassard 677 Curtin v. Patton 27, 67, 70 Curtis V. Aspinwall 165 Curtis V. Brown 128 Curtis V. Brownell 7 Curtis V. Gokey 316 Y88 TABLE or CASES. Sec. Curtis V. Railroad Co 582 Curtis V. Sage 82, 134, 137 Curtis V. Whitney 556, 557 Cusack V. Robinson. . .148, 150, 152 Cusic V. Douglas 558 Cutler V. Wright 214, 387 Cutter V. Close 473, 640 Cutting V. Railroad Co 684 Cutsinger v. Ballard 105 Cutts V. Gordon 375 Cutts V. Perkins 519 Cuyler v. Cuyler 376 Dacosta v. Davis 115, 577 Da Costa v. Jones 245, 262 Daggers v. Van Dyck 625 Daggett V. Johnson 614 Dahoney v. Dahoney 193 Dalby v. Life Assur. Co 266 Dalby v. Pullen 681 Dale V. Hamilton 104 Dale V. Knepp 190 Daley v. Association 227 Daley v. Ericsson 371, 380 Daley v. Investment Co 217, 227 Dallman v. King 473 Dalton v. Jones 72 Dalton v. Murphy 398 Daly V. Stetson 519 Dana v. Bank 428 Dane v. Kirkwall 472 Danforth v. Lancy 102 Daniel v. Frazer 138 Daniel v. Mitchel . 571 Daniel v. Telegraph Co 297 Daniels v. Hatch 379 Daniels v. Newton ...... .594, 604 Daniels v. Meinhard 524, 526 Daniels v. Pratt 269 Dannenhauer v. Browne 483 Dant v. Head 134, 137 Danube, etc. Co. v. Xenos 604 Darby v. Boocher 48, 469 Darling v. Railroad Co 290 Darlinger v. Earle 171 Darly v. Smith 677 Sec. Darraugh v. Blackfod 53, 64 Darrell v. Tibbetts 404 Darrow v. Family Fund Soc. . . 16 Dartmouth College v. Wood- ward 426, 534 Darst V. Bates 128, 237 Dashaway Asso. v Rogers 487 Dater v. Earl 409 Dauchey v. Drake 639, 666 Davenport v. Cong. Society. . . 700 Davenport v. Gentry 519 Davies v. Davies 311, 314 Davies v. Humphreys 388, 434 Davis V. Turton 66 Davis V. Barger 185 Davis V. Belford ^82, 383 Davis V. Booth 323, 383 Davis V. Bronson 384, 408, 409 Davis V. Brown 312 Davis V. Caldwell 41, 50 Davis V. Chouteau 368, 377 Davis V. Clark 634 Davis V. Coburn 3^58, 519 Davis V. Coleman 399 Davis V. Creamery Co 383, 385 Davis V. Cupp 383 Davis V. Dudley 27, 56 Davis V. Eastman 151 Davis V. French 485 Davis V. Furniture Co 594, 698 Davis V. Gallagher 429 Davis V. Garrett 583 Davis V. Harper 632 Davis V. Jones 383 Davis V. Knoke 383 Davis V. Lane 15 Davis V. Light Co. . 661 Davis V. Marlborough 283, 517 Davis V. Murray 383 Davis V. Phillips 7 Davis V. Railroad Co 288,291 410, 421 Davis V. Randall 232 Davis V. Reyner 119 Davis V. Rowell 138 Davis V. Rupe 560, 561 789 TABLE OF CASES. Sec. Davis V. Setool Dist 652 Davis V. Shafer 383 Davis V. Sloman 228 Davis V. Smith 573 Davis V. State 538 Davis V. Statts 96 Davis V. Talcott 641 Davis V. Taiver 14 Davis v. Van Bureii 374 Davis V. Water Co 349 Davidson v. Bohlman 200 Davison v. Davison 465, 467 Davidson v. McGregor 701 Davren v. White 5 Dawes v. Howard 47, 470 Dawes v. Hubbard 473 Dawes v. Peck 152 Dawson v. Holmes 64 Day v. Caton 458 Day V. Elmore 94 Day v. Jeffords 588 Day V. Lacasse 84 Day V. McAllister 192 Day v. Seely 7 Day V. Eailroad Co 108 Dayton v. Fargo 518 Dayton v. Moore 227, 228 Dean v. Anderson 107 Dean v. Dicker 266 Dean v. Ins. Co 17, 18 Dean v. Newhall 376, 378 Dean v. Walker 362, 363, 365 Dearie v. Hall 508 De Begins v. Armistead 196 Do Biel v. Thomson 465 Decan v. Shipper 512 Deeell v. Lewenthal.41. 44. 45. 50 Deering v. Winchelsea 434 De Francisco v. Barnum 317 Defiance Water Co. v. Defiance 626 Deitz V. Sutcliffe 464 De Gogorza v. Ins. Co 20 De La Grange v. Telegr. Co. . . 297 Delaney v. Anderson 365 Delano v. Blake 65 Sec. Delaware, etc. R. R. Co. v. Stockyard Co 538 Delaware & Atlantic Telephone Co. V. Telegraph Co 296 De Leon v. Frevino 330 Delevan v. Wright 105 Delier v. Agri. Society 262 Dellinger v. Foltz 64 Delop V. Windsor 402 Delz V. Winfree 341 De Mary v. Bartenshaw 251 De Meli v. De Meli 632 Demeritt v. Bickford 129 De Mesnil v. Dakin 498 Demi v. Bassler 136 Deniorest v. Willard 518 Demoville v. Davidson County. 532 Denham v. Bryant 473 Dening v. Railroad Co 583 Denison v. Crawford 284 Denmead v. Coburn 474 Dennett v. Dennett 6, 9 Dennis v. Clark 47, 470 Dennis v. Ins. Co 20 Dennis v. Moses 1, 278 Denney v. Faulkner 419 Denny v. Railroad Co 583 Denny v. Smith 387, 634 Denny v. Williams 147, 151 Dent V. West Virginia 550 Dentler v. O'Brien 66 Depau V. Humphreys 115 Derby v. Johnson 579 Dermott v. Jones 442, 473, 477, 573, 587, 655 Desha v. Robinson 599 Dc Sobry v. De Laistre . . . 274, 420 Dethlifs V. Tomsen 316 Detrick v. Myatt 37 Deutsch v. Bond 93 Devaux v. Conolley 448 Devaynes v. Noble 428 Devine v. Edwards 450, 640 Devlin v. New York. .5L5, 518, 519 Devol v. Mcintosh 352 790 TABLE OF CASES. Sec. Dewees v. Miller 246 Dewey v. Allgire 6, 7, 24 Dewey v. Erie 613 Dewey v. School Dist 591 De Wolf V. Johnson 241, 417 Dexter v. Blanchard 96 Dexter v. Hall 9, 21, 28 Dexter v. Norton 475, 572, 574, 658, 659 Deyoe v. Woodworth 280 Dial V. Wood 35 Diamond Match Co. v. Roeber . . 304, 312, 314, 318 Diebold, etc. Lock Co. v. Barnes 454 Dier's Case 309 Dietrich v. Railroad Co 293 Dick V. Ireland 621 Dickerman v. Day 212 Dickinson v. Conway 352 Dickinson v. Dickinson 140 Dickinson v. Edwards ....417, 420 Dickson v. Dickson 400 Dickson v. Frishee 134 Dickson v. Thomas 245 Dilk V. Keighley 44 Dill V. Bowen 71 Dillon V. Allen 178, 179, 196 Dillon V. Anderson 602, 605, 610, 611 Dillon V. Burnham 69 Dillon V. Russell 393 Diman v. Railroad Co 600 Dingley v. Oler 594 Dinsmore v. Neuesheimer 258 Dinsmore v. Webber 66 Disbrough v. Bileman 634 Disbrow v. Durand ...... .458, 460 Distilling and Cattle Feeding Co. V. People 320, 323 District v. Dauchy 573 Ditmas v. Sackett 211 Ditchman v. Worall 26 Dis V. Cobb 508 Dix V. Marcy 108 Dixon V. Olmstead 500 Dixon V. Merritt 27, 57 Sec. Dixon V. Telegraph Co 297 Dixon County v. Beardshear.. 456 Dixon-Wood Co. v. Glass Co. . . 697 Doane v. Covell 66 Doane v. Lockwood 599 Dobbin v. Hewitt 240 Dobson V. Winner 450 Dock V. Boyd 131 Dock Co. V. Kinzie 113 Dodd V. Berthal 32 Dodge V. Woolsey 534 Doe V. Burnham 175, 178 Doherr v. The Etona 410 Doherty v. Doe 80 Doherty v. Hill 92 Doherty v. Shields 486, 489 Dolan V. Green 413 Dolan V. Eodgers 657, 659 Doles V. Hilton 26 Doll V. Noble 614 Dolman v. Cook 241, 243 Dolph V. Hand 52, 55, 56, 59 Don V. Lippman 258, 419 Donald v. Homestead Asso 114 Donnell v. Bennett 317 Donellan v. Read 82, 137 Dongan v. Blocker 105 Donovan v. Ward 56 Doolin V. Ward 165, 167 Doolittle V. Dininny 79 Dorecher v. Continental Mills. 62 Doremus v. Hennessey 335, 341, 342, 344 Dorsey v. Packwood 98 Dougherty v. Bash 125 Dougherty v. Chestnutt 92 Dougherty v. Seymour 274 Dougherty v. Whitehead 458 Doughty V. Doughty 15, 400 Douglas Ax Manuf. Co. v. Gard- ner 612 Douglas County v. Keller 450 Douglas V. Kentucky 273, 547 Douglass V. Chapin 375 Douglass V. Howland 94, 95 Douglass V. Spears 98 791 TABLE OF CASES. Sec. Dow V. Beidelman 538, 539 Dow V. Clark 356 Dow V. Haley 200 Dow V. Updike 229 Dow V. Warthen 156 Dowell V. Cardwell 526 Dowling V. McKenny 110, 443 Down V. Hailing 505 Downer v. Chesbrough 115 Downes v. Ross 146 Downey v. Hinehman 124 Downing v. Freeman 444 Downing v. Ringer 196 Downing v. Stone 61 Downs V. Finnegan 464, 486, 489, 490, 492, 493 Downs V. Minchew 200 Dows V. Glaspel 251, 259 Dows V. Perrin 512 Dows V. Sweet 128 Dowse V. Coxe 485 Doyle V. Dixon 134 Doyle V. Ins. Co 545 Doyle V. Lynn 190 Doyle V. Railroad Co 295 Doyle V. Trinity Church 458 Drady v. Railroad Co 537 Drake v. Flewellen 96 Drake v. Newton Ill Drake v. Ramsey 56, 59, 65 Drake v. Rice 419 Drake v. Seaman 94 Drake v. Wells 509 Drake v. Whaley 445 Drake v. White 577 Draper v. Randolph 442 Draughan v. Bunting 129 Dreeman v. Douglas 274 Dresser v. Norwood 503 Drew V. Claggett ; . 482, 599 Drew V. Peer 509 Drpyer v. Goldy 228 Drinkwater v. Jordan 379 Driscoll V. Nichols 485 Drovers Nat. Bank v. O'Hare . . 502 Sec. Drude v. Curtis 57 Drury v. Defontaine 180, 187 Drury v. Wolfe 209, 225 Drury v. Young 84 Dryfus v. Burnes 216 Dry Goods Co. v. Harlin 171 Dube V. Beauding 64 Dublin, etc. Ry. Co. v. Black.. 26 Ducett V. Wolf '. 84 Duflf V. Russell 677 Dufaur v. Assurance Co 18 Dugan V. Lewis 417 Dulin V. McCaw 401 Dulin V. Price 109 Dunbar v. Johnson 205 Dunbar v. Railroad Co 290 Duncan v. Baker 474 Dimcan v. Helm 241 Duncan v. Humphries 599 Duncan v. Jandon 358 Duncan v. Railroad Co 295 Dunham v. Bent 328 Dunham v. Branch 379 Dunham v. Cudlipp 230 Dunham v. Griswold 427 Dunkin v. Hodge 129 Dunlap V. Hand 640, 651 Dunlap V. Lewis 504 Dunlap V. Wiseman 241 Dunn V. Bell 249 Dunn V. People 270, 271 Dunn V. Rothermel Ill Dunn V. Sayles 622 Dunn V. Seymour 364 Dunn V. West 129 Dunsmore v. Lyle 102 Dunton v. Brown 27 Duquette v. Richar 443 Duplex Saf. Boiler Co. v. Gar- den 614, 639 Dupuy V. Wurtz 632 Dural V. Myers 669 Durand v. Curtis 102 Durgin v. Dyer 175, 178 Durgin v. Express Co 289 Y92 TABLE OF CASES. See. Durfee v. O'Brien 82, 137 Durham, etc. Improvement Co. V. Guthrie 97, 98, 109 Durham v. Hiatt 133 Durkee v. Mott 603 Durner v. Huegin 315 Durnford v. Messiter 340, 430 Durr V. Hervey 513 Dutton V. Aurora 208 Dutton V. Poole 361, 364 Duvall V. Bank 208 Duvall V. Myers 668 Duval V. Wellman 275, 500 Dwight V. Badgley 256 Dwight V. Hamilton 319 Dyer v. Jones 477 Dykers v. Townsend. ..... .90, 142 Dykes v. Bottoms 215 Eadie v. Slimmon 499 Eagle V. Kohn 257 Earl V. Bickford 448 Earle v. Coburn 457 Earle v. Reed 27, 34, 49 Easp v. Tyler 589 Eastabrook v, Ins. Co 19, 20 Easter v. White 129 Eastern Bank v. Capron 506 East Lewisburg L. & Manuf.Co. East Lewisburg L. & Manuf. Co. V. Marsh 515 Eastman v. State 200 Eastman v. Wright 377 Easton v. Railroad Co 325 East River Bank v. Hoyt 216 East Tennessee, etc. R. R. Co. v. Staub ;.134, 602 Eastwood V. Kenyon 123, 124 Eaton V. Eaton 6, 9, 21, 22, 25 Eaton V. Hill 67, 69 Eaton V. Kegan 197, 204, 540 Eaton V. Libbey 352 Eaton V. Mclntire 292 Eaton V. Water Works Co 349 Eaton V. Whitaker 102, 135 Eaton V. Woolly 640 Sec. Ebey v. Adams 520 Eckel V. Renne 267 Eckeurode v. Chemical Co.... 608 Eckman v. Railroad Co 300 Eckstein v. Downing 674 Eddy V. Capron 279 Eden v. Chaffee 130 Eden v. People T80, 188 Edgall V. McLaughlin 246 Edge V. Edge 8 Edgecomb v. Buckhout 474 Edgerly v. Shaw 51, 52 Edgerton v. Hodge 155 Edison P"honograph Co. v. Pike 339 Edmunds v. Bruce 237 Edmunds v. Mister 52 Edward, etc. Oil Co. v. Baker. . 664 Edwards v. Carter 52, 59 Edwards v. Clement 356 Edwards County v. Jennings.. 179 Edwards v. Hardware Manuf. Co 449 Edwards v. Kearzey 528, 555 557, 5SB, 560 Edwards v. Peterson 515, 518 Edwards v. Railroad Co.. 139, 146 Edwards v. West 577 Egbert v. Baker 406 Ege V. Koontz 449 Egeleshimer v. Van Antwerp . . 385 Eggleston v. Buck 371 Eggleston v. Wagnor 92 Ehrgatt v. Mayor 271 Eichelberger v. McCauley 146 Eidmon v. Martinez 395 Eisel V. Hayes 312, 314 Eising V. Andrews 635 Elbert v. Gas Co 85 Elbinger-Actien-Gesellschaft v. Armstrong 683, 698 Elder v. McClaskey 631 Elder v. Schumacher 9, 22 Elder v. Thompson 308 Elder v. Warfield 96 Elderton v. Emmons 603 703 TABLE OF CASES. See. Eldred v. Malloy 246 Eldridge v. Rowe 474 Electric ElgEt Co. v. Railroad Co 676 Eley V. Life Assur. Co 360 Elgie Cotton Cases 148 Elkhart County v. Crary 282 Ellenbogen v. Griffey 227 Eller V. Lacy 368 Ellerman v. Slock Yards Co 304, 312 Ellicott V. Turner 82 Elliott V. Barrett 91 Elliott V. Caldwell.. .477, 640, 655 Elliott V. Horn 30 Elliot V. Ince 25 Elliott V. Railway Co 555, 642 Elliott V. Sugg 210 Ellis V. Alford 65 Ellis V. Bray 93 Ellis V. Gary 108, 467, 479 Ellis V. Deadman 92 Ellis V. Ellis 469 Ellis V. Hamlen 473 Ellis V. Harrison 352, 362 Ellis V. Murray 125 Ellis V. Railroad Co 92 Ellis V. Telegraph Co 297 Ellis V. Thompson 641 Ellison V. Jackson 121 Ellison V. Jackson Water Co. . 93 Elmore v. Kingscott 141 Elrod V. Myers 45 Elston V. Jasper 9, 10 Elwell V. Martin 34 Embrey v. Jemison. .249, 251, 259 Emerson v. Aultman 94 Emerson v. Carpenter 66 Emerson v. Slater. . .121, 125, 132 Emery v. Bank 512 Emery v. Burbank 115 Emery v. Candle Co 320 Emery v. Clough 398 Emery v. Darling 607 Emery v. Emery 491 Sec. Emery v. Lawrence 515 Emery v. Ohio Co 313 Emery v. Smith 82, 110 Emert v. Missouri 551 Emmons v. Elderton 602, 605 Enders v. Enders 274, 277 Endres v. Bank 232 England v. Davidson 281 England v. Garner 27 England Trust Co. v. Abhott . . 674 Engle V. Chipman 279 Englebert v. Troxell ... 40, 42, 43 50, 57, 63, 69 English V. Smock 208 Engster v. West 573 Ennis v. Palace Car Co. . .622, 628 Epperly v. Bailey 474 Epperson v. Nugent 43, 49 Equitable, etc. Soc. v. Clements 404 Equitable, etc. Society v. Red- ding 404 Equitable Gas Light Co. v. Manuf. Co 107, 108 Equitable Life Assur. Soc. v. Frommbold 420 Erdman v. Mitchell 336 Erie and Pacific Despatch Co. V. Cecil 325 Erie, etc. R. R. Co. v. Patrick . . 383 Erie Railway v. Locomotive Co. 577 Erlanger v. Phosphate Co 626 Erman v. Lehman 398 Ernst V. Crosby 274 Errington v. Aynesly 668 Erskine v. Van Arsdale 456 Erwin v. Nav. Co 384 Eslava v. Crampton 228 Espalla v. Wilson 114 Espasito v. Bowden 576 Espin V. Pemberton 503 Estate of Kessler 108 Estate of Silver 9 Essley v. Sloan 238 Estep V. Fenton 655 Estevez v. Purdy 228 794 TABLE OF CASES. See. Etheridge v. Vernoy 524, 526 Euds V. Williams 025 Eureka v. Edwards 56, 71 European, etc. Mail Co. v. Packet Co 656 Eustis V. Bolles 531 Evans v. Anderson 258 Evans v. Dravo 331 Evans v. Givens 595, 599 Evans v. Jones 545 Eans V. Hughes 449 Evans v. Miller 105, 464, 490 Evans v. Montgomery 560 Evans v. Morgan 70 Evans v. Railroad Co 617, 619 Evans v. Winona Lumber Co.. Ill Evansville v. Morris 192, 193 Everhart v. Searle 451 EveringHam v. Meighan 249 Eversen v. Carpenter 54 Evert V. Kleimenhagen 185 Ewell V. Daggs 332, 532 Ewing V. Litchfield 671, 676 Ewing V. Railroad Co 693 Ewins V. Gordon 98 Exall V. Partridge. . .430, 434, 435 Exchange Bank v. Rice. 356 357, 359 Exchange Tel. Co. v. Gregory. . 341 Exeter Nat. Bank v. Orchard . . 234 Exley V. Berryhill 234 Ex parte Andrews 181 Ex parte Apsey 504 Ex parte Christy 555 Ex parte Crammer 12 Ex parte Fellows 199 Ex parte Hall 526 Ex parte Hayes 544 Ex parte Kuback 4 Ex parte Lee 1 Ex parte Maclure 482 Ex parte Milner 701 Ex parte Newman 181 Ex parte Parker 145 Ex parte Pye 358 Ex parte South 526 Sec. Ex parte Taylor 60 Ex parte Unity, etc. Asso 70 Ex parte Jentzsch 188 Express Co. v. Caldwell 288 289, 296 Express Co. v. Jackson 616 Express Co. v. Moon 288 Express Co. v. Trego 618 Fagin v. Goggin 35 Fain v. Turner 124, 127, 134 Fairfax v. Railroad Co 424 Fairly v. Wappoo Mills 198 Falliard v. Wallace 614 Fanning v. Anderson 387, 634 Fanning v. Dunham 216 Fareira v. Gabell 251 Farina v. Howe 152 Farley v. Parker 9, 21 Farley v. Piatt 281 Farmer v. Arundel 450 Farmers and Mech. Bank v. Kingsley 635 Farmers' Bank v. Transporta- tion Co 289, 290 Farmers' Deposit K. Bank v. Bank 506 Farmers' Nat. Gold Bank v. Stover 232 Farmington Academy v. Allen 458 Farnam v. Brooks 7 Farnham v. Davis 132 Farnham v. Railroad Co 288 Farnsworth v. Hemmer 451 Farquhar v. Morris 628 Farrell v. Farrell 470 Farrell v. Maxwell 96 Farson v. Louisville 278 Farwell v. Becker 388, 394, 438 Farwell v. Johnston 103 Farwell v. Lowther 98 FarwelT v. Tilson 133 Faulknor v. Hyman 258,406 Faw V. Roberdeau 633 Fawcett v. Cash 622 Y95 TABLE OF CASES. Sec. Fawcett v. Eberly 281 FawceFt v. Woodbury County. . 281 Faxon v. Mansfield 474 Fay V. Fay 171, 701 Fay V. State 173 Fay V. Wheeler 140 Fear v. Bartlett 419 Fearing v. Glenn 638 Fearnley v. De Mandenville . . 330 Feay v. Decamp 599 Feeel v. Gumault 25 Feeney v. Howard 107 FelcB V. Taylor 353 Feldew v. Besley 573 Fender v. Kelly 339, 348 Feldman v. Gamble 204 Felt V. Smith 664 Felton V. Dickinson 361 Fennell v. Ridder 180 Fenno v. Sayre 237 Fenton v. Clark 474, 589 Ferguson v. Bank 148, 513 Ferguson v. Bell 66, 68 Ferguson v. Bobo 67, 69, 70 Ferguson v. Carrington. . .461, 464 Ferguson v. Clifford 402 Ferguson v. Railroad Co 27 Ferguson v. Telegr. Co 692 Ferrell v. Maxwell 129 Ferris v. Water Co 349, 350 Ferry v. Burchard 635 Fertilizing Co. v. Hyde Park 534, 547 Fetrow v. Wiseman 27 Fessenden v. Mussey 88 Fessenden v. Taft 395 Feurt V. Rowell 402 Fewings v. Tisdale 603 Fichter v. Frank 254 Ficklin v. Shelly Taxing Dist. 552 Fidelity, etc. Co. v. Lawlor.. 129 Fiedler v. Darrin 208 Field V. Brackett 659 lield V. Chipley 283, 517 Field V. Crawford 356 Sec. Field V. Herrick 66 Field V. Magaw 526 Field V. Mayor 518 Field V. New York 515, 526 Field V. Runk 368 Fielder v. Starkin 612 Fildew V. Basley 587 Files V. Railroad Oo 295 Fillienk v. Armstrong 618 Fillman v. Ryon 455 Filson V. Himes 279 Finch V. Barclay 197 Finch V. Finch 470 Finch V. Mansfield 409 Finn v. Donahue 192, 195 Finney v. Apgar 146 Finney v. Ins. Co 404 Fireman's Ins. Co. v. Thompson 404 Fish V. Chapman 615 Fish V. Stamping Co 483 Fishburn v. Chicago 304 Fisher v. Bernard 31 Fisher v. Bishop 499 Fisher v. Hopkins 373 Fisher v. Lackey 557 Fisher v. Lord 205, 2^8, 409 Fisher v. Mowbray 27 Fisher v. Otis 115 Fisher v. Shattuck 498 Fisk V. Reser 128 Fiske V. People 4 First Nat. Bank v. Allen 428 First Nat. Bank v. Bank 427 First National Bank v. Chal- mers 128 First Nat. Bank v. Davis 226 First Nat. Bank v. Hendric . . 302 First Nat. Bank v. Kelly 511 First Nat. Bank v. Kingsley. . 186 First Nat. Bank v. Mann 214 First Nat. Bank v. Mayor 456 First Nat. Bank v. Mitchell . . 401 First Nat. Bank v. Packing Co 251, 254 First Nat. Bank v. Railroad Co. 511 Y96 TABLE OF CASES. Sec. First Nat. Bank v. Kowley 352 First Nat. Bank v. Schmidt.. 510 First Nat. Bank v. Shaw 397 401, 512 First Nat. Bank v. Sowles.l59, 160 First Nat. Bank v. Walker... 406 First Presb. Church v. Bank.. 597 Fitch V. Constantine Hydraulic Co 509 Fitch V. Ins. Co 16 Fitch V. Jones 245 Fitch V. Eemer 241 Fitehburg Railroad Co. v. Depot Co 541 Fitehburg R. R. Co. v. Gage . . 325 Fitts V. Hall 67 Fitzgerald v. Allen 599, 621 Fitzgerald v. Baker 362 Fitzgerald v. Dressier 123 Fitzgerald v. Ins. Co 267 FitzgeraH v. Morrissey. . .121, 123 125, 128 Fitzgerald v. Reed 9, 22 Fitzgerald v. Stewart 526 Fitzpatrick v. Woodruff 140 621, 600 Fivaz V. Nicholls 162 Flaccus V. Smith 336 Flagg V. Baldwin 395,408 Flagg V. Gilpin 249 Flagg V. Inhabitants 188 Flaherty v. Minor 699 Flaherty v. Moran 345 Flanders v. Davis 22 Flandrow v. Hammond 595 Flannery v. Rohomayer 652 Flarity v. Odium 283,517 Fleeter v. Weber 427 Fleischner v. Pacific Post Tel. Co 568 Fleming v. Beck 685 Fleming v. Carter 102 Flemm v. Whitmore 129 Fletcher v. Grower 388, 439 Fletcher v. Harcat 164 See, Fletcher v. Ingram 149 Fletcher v. Tayleur 688 Flight V. Ballard 668,669 Flinn v. Barber 480 Flinn v. Railroad Co 288 Flint V. Cadenasso 352 Flint V. Pierce 356 Flint V. Wood 600 Flood V. Allen 335 Flood V. Jackson 344 Florence R. R. etc. Co. v. Bank 232 Florida, etc. R. R. v. State... 302 Flower v. Railroad Co 26 Flynn v. Benefit Asso 363 Flynn v. Ins. Co 363 Fonda v. VanHorne 27 Folds V. Allardt 60 Foley V. Bushway 485 Foley V. Phelps 485 Follett V. Buyer 507 Fonseca v. Steamboat Co 288 295, 395 Fontaine V. Bush 114, 145 Foot V. Merrill 492 Forbes v. Appleton 452, 501 Forbes v. Railroad Co 510 Force v. Haines 458 Ford V. Beech 376 Ford V. Cotesworth 573 Ford V. Ins. Co 404 Ford V. Milk Shippers Asso.. 320 323 Ford V. Tiley 594 Ford V. Ward 458 Ford V. Williams 359 i'ordyce v. Nelson 524 Forest M. E. Church v. Don- nell 385 Forester v. Fuller 11 Formby v. Proyer 287 Forrester v. Flores 104 i orscht V. Green 502 Forsyth v. Mann 694 Forsyth v. Wells 492 Forsyth v. Whaling 628 Y97 TABLE OF CASES. Sec. Forst V. Leonard 368 Fortesque v. Hannah 466, 467 Forth V. Stanton 121 Fort Plain Bridge v. Smith ... 535 Farward v. Pittard 581 Foshay v. Ferguson 498 Foss V. Cummins 250, 304 Foster v. Bartlett 496 Foster v. Blackstone 508 Foster v. Burton 434 Foster v. Coekerell 508 Foster v. Commissioners 544 Foster v. Fuller 485 Foster v. Green 504 Foster v. Hooper 371 Foster v. Kirby 450 Foster v. Maginnis 105 Foster v. MeO'Blennis 134 Foster v. Protective Asso 336 Foster v. Ropes 149 Foster v. Taylor 196, 205 Foster v. Thurston 205 Foster v. Water Co 349 Foster v. Wooten 185 Fourth Nat. Bank v. Frank- lyn 556, 565 Fowle V. Park 304, 312 Fowler v. Armour 603 Fowler v. Burget 100 Fowler v. Donovan 388, 436 Fowler v. Ins. Co 266 Fowler v. Trust Co.. 208, 211, 225 228, 229 Fowler v. Water Works Co 349 T'owler Elevator Co. v. Cot- trell 85, 86 Fowler's Appeal 398 Fox v. Drewry 64 Fox V. Harding 684, 697 Fox V. Matthews 116 Fox V. Tabel 596 Frances v. Barry 92 Francis v. Telegr, Co 693 Frain v. Turner 134 Frank v. Banlc 428 Sec. Frank v. Bobbitt 406 Frank v. Eltringham 88 Franchat v. Leach 594, 606 Franker v. Little 450 Franklin v. Long 139 Franklin v. Miller 595 Franklin Coal Co. v. McMillan 492 Franklin L. Ins. Co. v, Hazzard 267 Franklin Tel. Co. v. Harrison . . 672 Frary v. Rubber Co 614 Fratt V. Clark .487, 489 Frazier v. Clark 687 Frazier v. Fredericks 406 Frazier v. Massey 27 I'reden v. Richards 230 Frederick v. Railroad Co. .292, 293 FredericE v. Williams 631 Fred Miller Brewing Co. v. De France 413 Fredericks v. Mayer 677 Freeman v. Bridger 39 Freeman v. Clute 697 Freeman v. Cooke 428 Freeman v. Foss 108 Freeman v. Freeman.. 15, 105, 106 Freeman v. Railroad Co... 339, 348 Freeman's Appeal 401 Freese v. Brownell 399,417 Freeth v. Burr 595 French v. Grindle 212 French v. McAndrew 27, 57 French v. Parker 319 French v. Smith 425 Fiench v. Townes 571 Friend, etc. Lum. Co. v. Miller 685 Frierson v. Williams 401 Frinlv v. Green 379 Frisbie v. United Slates. .. .1, 540 Frisby v. Parkhurst 667 Fritsch v. Heislem 185 Frolickstein v. Mobile 181 Frome v. Dawson 104 Frorer v. People 4, 515, 540 Frost V. "Belmont 284 Frost V. Gage 357 798 TABLE OF CASES. See. Frost V. Knight 594, 604 Frost V. Tarr 466, 627 Frost V. Vaught 31 Frost V. Williams 383 Frostburg Mining Co. v. Glass Co 152 Frothingham v. Morse 278 Friiitt V. Anderson. .■ 11 Fry V. Piatt 91 Fuchs V. Fucks 467 Fulford V. Keerl 238 Fuller V. Abrahams 166 Fuller V. Brown 4Y5, 589 Fuller V. Dame 302 Fuller V. Davis 286 Fuller V. Dawe 274 Fuller V. Duren 446, 486 Fuller V. Hope 314, 316 Fuller V. Little 605 Fuller V. Mowry 460 Fuller V. Relief Asso 300 Fuller V. Scott 128 Fullman v. Adams 123 Furbish v. Goodnow 130 Furlong v. Bartlett 60 Furman v. Van Sise 47, 470 Fuqua v. Sholem 28 Furstenheim v. Railroad Co . . 294 Gabel v. Houston 181 Gaffney v. Hayden 62, 482 Gage V. Allen 452 Gaines v. Hot Springs 628 Gaines v. Miller 624 Gaither v. Clarke. . .209, 231,237 Gaither v. Lindsey 200 Gaitskill v. Chenaelt : . . . 339 Gale V. Harp 121 Gale V. Leckie 164 Gallagher v. Gallagher 103 Gallagher v. Nichols 656 Gallaher v. Sharpless 699 Galler v. Fett 492 Gallin v. Railway Co 295 Gallini v. Eaborie 203 Sec. Gallious V. Pierce 278 Galton V. Emuss 165 Galveston, etc. R. R. Co. v. Pfeuffer 302 Galvin v. Kenneth 149, 151 Ualway v. Railroad Co 625 Galway v. Shields lOl, 102, 480 Gamewell Fire Alarm Tel. Co. V. Crane 312, 313 Gammon v. Butler 504 Gandell v. Pontigney 603 Gantly v. Ewing 555 Gapen v. Gapen 668 Garber v. Armentrout 440 Garbracht v. Commonwealth . . 398 Gardels v. Kloke 97 Garden City Sand Co v. Miller 403 Gardner v. Gardner 80 Gardner v. Lane 568 Gardner v. Morse 165 Gardner v. Smith 524, 526 Gardner v. Tatum 200 Garfield v. Huls 640 Garfield v. Paris 147 Garland v. Dover 47, 470 Garland v. Harrington 515 Garland v. Richeson 508 Garnett v. Handley 364 Garnett v. Roper 387 Garrett v. Burleson 600 Garrett v. Moss 169 Garrett v. Taylor 341, 312 Garretson v. Joseph 449 Garrigan v. Knight 456 Garton v. Railway Co 325 Gartrell v. Stafford 98 Gartside v. Isherwood 7 Garvey v. Crouch 128 Garvin v. Lenton 208,233 Gary v. James 465 Gas Company v. San Fran- cisco 459 Gaskins v. Davis 492 Gas Light Co. v. Colliday 307 Gas Light Co. v. Memphis .... 459 '00 TABLE OF CASES. Sec. Gaslin v. Pinney 145 Gassett v. Glazier 599 Gastenan v. Commonwealth . . 544 Gaston v. Drake 279 Gates V. Gaither 403 Gates V. Green 573 Gates V. McKee 94 Gathings v. Williams 13 Gatlin v. Wilcox 595 Gaul V. Willis 212 Gault V. Stormout 91 Gauthier v. Cole 412 Gautzert v. Hoge 363 Gavin v. Burton 33 Gaw V. Bennett 256 Gay V. Ballou 49 Gay V. Hassam 637 Gay V. Ins. Co 18 Gay lord v. Sorageu 409, 447 Gee V. Railroad Co 683, 684 Geer v. School Dist 382 Geipel v. Smith 615 Geismer v. Railroad Co 615 Geist's Appeal 521 Gelpcke v. Dubuque. .224, 241, 531 Generaux v. Sibley 29, 48 Gennett v. Wuestner 183, 192 Genoa v. Woodneff 241 George v. East Tenn. C. Co. . . 317 George v. Hoskins 129 George v. Security Co 211 Georgia Banking Co. v. Smith. 534 539 Georgia R. R. Co. v. Hayden.. 697 Gere v. Clark 371, 372 Gerhart v. Peck 99 German Sav. and L. Asso. v. De Lashmutt 12 Gerz V. Demarra 460 Getty V. Binsse 374 Gibben v. Maxwell 9, 14 Gibbons v. Rente 383, 384, 608 Gibbons v. Gouverneur. . . .2i)2, 203 Gibbons v. Grinell 383, 385 Gibbons v. Ogden 550 Sec. Gibbs V. Blanchard 122 Gibbs V. Bryant 434, 442 Gibbs V. Gas Co. .246, 303, 305, 313 314, 324 Gibbs V. Ins. Co 404 Gibbs V Smith 165, 169, 324 Gibbs, etc. Manuf. Co. v. Brucker 185 Giblan v. Laborers' Union.... 335 Gibson v. Carnage 614 Gibson v. CarrutTiers 519 Gibson v. Cook 521 Gibson v. Holland 116 Gibson v. Ins. Co TOl, 404 Gibson v. Jeyes 12 Gibson v. Pelkie 571 Gibson v. Soper..6, 21, 22, 23, 64 Gibson v. Stearnes 233 Gibson v. Stevens 513, 514 Gibson v. Trust Co 367 Gieske v. Anderson 367 Gifford V. Corrigan . . 352, 353, 362 Giles V. Edwards 448, 595, 599 Gill V. Bicknell 87 Gill V. Hewitt 87 Gill V. Vogler 474, 666 Gillenevatu v. Railroad Co.... 295 Gillenwaters v. Campbell 68 Gillespie v. Bailey 56, 64 Gillespie Tool Co. v. Wilson.. 474 666 Gilles V. Tel. Co 296 Gillett V. Maynard 108, 480 Gillette v. Hartford 456 Gillette V. Tucker 628 Gilley v. Gilley 30, 47,470 Gilliland v. Phillips 416 Gillis V. Space 686 Gillis V. Stinchfieid 531 Gillis V. Telegraph Co 297 Gillispie v. Nabors 37 Gillispie v. Railroad Co 582 Gilman v. Courtney 645 Gilinan v. Daught 312 Gilman v. Dwight 319 800 TABLE OF CASES. Sec. Oilman v. Hall 477, 640 Oilman v. Hill 143, 149 Gilmore v. Bissell 225 Gilmore v. Courfney 643 Gilmore v. Lewis 281 Gilmore v. Wilbur 446,464 487, 488 Gilmore v. Woodcock 461 Gilson V. Spear 67, 70 Gimbel v. Stalte 561 Ginn v. Security Co 228 Gipps Brewing Co. v. De France 205 Girard Storage Co. v. South- ward Co 538 Gist V. Smith 443 Gist V. Tel. Co 408, 413 Gitchell V. Maney 521 Glacius V. Black.473, 639, 640, 666 Glamorgan Coal Co. v. South Wales Miners' Federation . . . 335 Glanville v. Jennings 275 Glass Co. V. Binney 344 Glascock V. Hazell 446 Glasscock v. Hamilton 388 Glasscock v. Lyons 445 Gleason v. Burke 208, 231, 235 Gleason v. Fitzgerald 130 Gleason v. Smith 640, 651, 666 Gleason v. United States 588 Glencoe Sand Co. v. Hudson... 341 343 Glendon Iron Co. v. Uhler 345 Glenn v. Jackson 585 Glenn v. Savage 457 Glenn v. Shannon 450 Gloss V. Hurlbert.91, 102,. 104, 105 Gloucester, etc. Co. v. Russia Cement Co 329 Glover v. Cheatham 184, 185 Glover v. Ott 41 Glyn V. Baker 503 Godcharles v. Wigeman . . 2, 4, 540 Goddard v. Binney 146, 694 Goddard v. Danaha 104 Goddard v. Sawyer 403, 456 Sec. Godman v. Meixel 254 Goldman v. Oppenheim 165 Gold Mining Co. v. Bank 17a GoldsmitH v. Bruning. . . .275, 500 Gonzoles v. Chartier 133 Good V. Cheesman 700 Good V. Deland 328 Goode V. Elliott 244, 245, 262 Goodlander Mill Co. v. Stand- ard Oil Co 348 Goodman v. Griffiths 141, 464 Goodman v. Harvey 512 Goodman v. Henderson 312 Goodman v. Pocock 603, 688 Goodman v. Simonda 512 Goodman v. Winter 71 Goodnow v. Empire Lumber Co 55, 59 Goodnow V. Smith 376 Goodnow V. Stryker 632 Goodrich v. Association 219 Goodrich v. Reynolds 208 Goodrich v. Tenny 330 Goodsell v. Myers 65 Goodspeed v. Fuller 448 Goodwin v. Bishop 216 Goodwin v. Cunningham 507 Goodwin v. Frances 85 Goodwin v. Gilbert 79, 353 Goodwin Gas Stove's Appeal . . 674 Goodyear v. Adams 9 Gompers v. Rochester 322 Gompertz v. Denton 448, 496 Gondon v. Railroad Co 642 Gordon v. Avery 91 Gordon v. Bank 393 Gordon v. Brewster 603 Gordon v. Little 136 Gordon v. Potter 47, 470 Gordon v. Rimmington 581 Gordon v. Simonton 596 Gore V. Gibson 7, 9, 472 Gorham v. Dodge 102, 104 Gorman v. Railroad Co 536 Gornsey v. Rogers 354 801 TABLE OF CASES. Sec. Goss V. Ellison 379 Goss V. Nugent 81 Gottschalk v. Smith 445 Gotwaet v. Neal 500 Gough V. Edelen 149 Gough V. Findon 427 Gould V. Banking Co 105 Gould V. Gould 377 Gould V. Murch 572 Gove V. Riddleford 667 Governor v. Art Union 271 Gowen v. Klous 90 Grace v. Adams 288 Grace v. Denison 93 Grace v. Hale 44, 468 Grace v. Lynch 137 Gracone v. Wroughton 279 Graff ty v. Rushville 551 Graft V. Loucks 107 Grafton v. Cummings. . .86, 88, 91 Graham v. Holloway 482, 597 Graham v. Selover 634 Graham v. Wickham 465 Grain v. AIdrich.521, 522, 524, 525 Grand United Order v. Merklin 231 Granger v. Granger 629 Granite State Provident Asso- ciation v. Monk 219 Grannis v. Quintain 653 Grans v. Hunter 503 Grant v. Beard 355 Grant v. Ludlow 518 Grant v. McGratli 185, 192 Grant v. Naylor 159, 160 Grant v. Wolf T22, 125 Grape Creek Coal Co. v. Spell- man 668, 676 Gratoit v. Railway Co 198 Graves v. Johnson 164, 398 409, 415 Graves v. White 482 Gray v. Bennett 423 Gray v. Building Trades Coun- cil 341 Gray v. Davis 151 See. Gray v. Gas Light Co 438 Gray v. Garrison 518 Gray v. Green 594 Gray v. Hill 480 Gray v. Hook 279 Gray v. Iron Works 398 Gray v. Mathias 274 Gray v. Murray 475,589 Gay V. Reynolds 163 Gray v. Tel. Co 421 Gray v. Pearson 367 Gray v. Van Blarcom 228 Great Western R. R. Co. v. Redmayer 684 Great Western Railway Co. v. Sutton 325 Great Western Tel. Co. v. Purdy 638 Grebert v. Borgnis 683 Grebert-Borgnis v. Nugent.... 698 Green v. Biddle 560, 566 Green v. Bulton 344, 346 Green v. Collins 409,447 Green v. Cresswell 123, 129 Green v. Gilbert 475, 589 Green v. Green 64, 71 Green v. GreenBank 68, 69 Green v. Hadfield 127 Green v. Iron Works 406 Green v. Moffet 540 Green v. Railway Co 676 Green v. Salmon 485 Green v. Scranage 499 Green v. Stobo 567 Green v. Van Buskirk 402, 407 Green v. Willing 26 Greene v. Bartholomew 515 Greene v. Burton 125 Greene v. Godfrey 195 Greene v. Greene 5 Greene v. Latham 132 Greene v. Tyler 237 Greenfield v, Monaghan 236 Greenfield School Dist. v. Bank 504 Greenhill v. Ins. Co 32 Greentree v. Rosenstoek 508 802 TABLE OF CASES. Sec. Greenwell v. Greenwell 460 Greenwood v. Butler 555, 560 Greenwood v. Curtis 408 Greenwood v. Freight Co 541 Greenwood v. Law 144 Greenwood v. Strainer 135 Greesemer v. Ins. Co 420 Gregory v. Brunswick. .. .341, 342 Gregory v. Ingwersen 668 Gregory v. Lee 49, 57 Gregory v. Mighell 102 Gregory v. Spicker 312 Gregory v. Wendell . . 245, 249, 255 Gregory v. Williams 360 Gressell v. Robinson 431 Greton v. Smith 480 Grew V. Produce Exchange . . . 249 Gribben v. Maxwell 22, 25 Griesemer v. Ins. Co 396, 404 Griffin v. Clay County 281 Griffin v. Colver 683, 688, 697 Griffin v. Thomas 382 Griffith V. Schwendenman 27 Griffith V. Townley 453 Griffith V. Wells. .178, 196, 197, 205 Griffiths V. Dudley 288,299 Grim v. Iron Co 357 Grimes v. Hamilton County. . 83 Grimm v. Warner 319 Grimston v. Cunningham 677 Grindle v. Express Co 290 Grinnell v. Kiralfy 614 Grinnell v. Telegraph Co 297 Grissell v. Railroad Co 537 Griswold v. Butler 12 Griswold v. Railroad Co.. 295, 519 Griswold v. Waddington 15 Griswood v. Bane 255, 257 Groff V. Ramsey 99 Grogan v. Express Co 288 Gross V. Coffey 222 Gross V. Davis 391 Gross V. Jordan 116 Gross V. Mort. Co 532 Grover v. Dubois 87 See. Grover v. Wakeman 170 Groynne v. Tel. Co 298 Grubb V. Sharkey 107 Grubb V. Wysor 508 Grubbs v. Harris 561 Grymer v. Sanders 596, 600 Gubbins v. Lautenschlager . . . . 653 Guetzkow V. Andrews 698 Guggenheimer v. Grieszler... 228 Guild V. Bank 232 Guild V. Conrad 96, 129 Guild V. Hull 6 Guignon v. Trust Co 403 Gulf, etc. R. . Co. V. McGowan 295 Gulf, etc. R. R. Co. v. Morris . . 304 Gulick V. Ward 167 Gullich V. Alford 595 Gump V. HalberstaJt 125 Gunnison v. Gregg 237 Gunn V. Barry 548, 555, 562 Gunter v. Astor 344 Gunter v. Halsey 104 Gunter v. Leckey. . ." 173 Gurney v. Behrend 512 Gurney v. Womersley 448 Gurwald v. Hahn 662 Guthrie v. Anderson 97 Guthrie v. Morris 49 Gwathney v. Cason 87 Haacke v. Literary Club 192 Haas V. Railroad Co 615 Hackett v. Hackett 485 Hackett v. King 498 Hadd V. Express Co 290 Hade v. McVay 506 Hadley v. Baxendale. .297, 683, 685 688, 696, 697 Hadley v. Clarke 576 Haebler v. Myers 445 Hagadore v. Stronach 121 Hagar v. Reclamation Dist. . . . 278 HagelTn v. Wacks 80 Hagerty v. Nashua Lock Co . . 62 Hague V. Wheeler 345 803 TABLE OF CASES. Sec. Hahn v. Concordia Soc 677 Hahn v. Fredericks 148 Haigh V. Blythe 82 Haine v. Meyer 660 Haines v. Thompson 134 Hainey v. Lewis 287 Haisten v. Savannah, etc. R. R. Co 668 Halbrook v. Armstrong 137 Halderman v. Duncan 148 Haldeman v. Ins. Co 229 Haldeman v. Simonton 319 Hale V. Brown 6 Hale V. Gerrish 51 Hale V. Hale.. 86, 91, 104, 105, 467 Hale V. STavigation Co 421, 580 Hale V. Spaulding 375 Hale V. Steam Nav. Co 420 Hales V. Freeman 431 Hall V. Alfred 132 Hall V. Bishop 199 Hall V. Buffalo 518 Hall V. Butterfield 62 Hall V. Cordell 115, 420 Hall V. Denckla 625 Hall V. Finch 460 Hall V. Gray 375 Hall V. Huntoon 361 Hall V. Jones 51 Hall V. Lane 348 Hall V. Leigh 382 Hall V. Mandlin 228 Hall V. Renfro 615 Hall V. State 426 Hall V. Parker 193 Hall V. Potter 275 Hall V. Wallace 99 Hall V. Weir 47, 470 Hall V. Wright 476 Halleck v. Mixer 464 Hallenback v Cockran 154 Hallett V. Novion 175, 178 Halley v. Anness 668 Halley v. Troester 21 Hallgarten v. Oldham 116 Sec. Halliman v. Rogers 388 Halloway v. Talbot 602, 605 Haltham v. Ryland 588 Hamill v. Hall 131 Hamilton v. Austin 189 Hamilton v. County Court.... 540 Hamilton v. Harvey 667 Hamilton v. Magill 683 Hamilton v. McPherson. .602, 605 Hamilton v. Rogers 515 Hamilton Gas Light Co. v. Hamilton City 534 Hamlet v. Richardson 501 Hamlyn v. Talisker Distillery 396, 420 Hammer v. Schoenf elder 685 Hammersley v. De Biel 465 Hammond v. Bessey, 685 Hammons v. Slate 188 Hampden v. Walsh 244 Hampton v. France 632 Hampton v. Westcott 5 Hanchett v. Jordan 185 Hancock v. Hazzard 584 Hancock v. Merrick 470 Hancock v. Yaden 1,2 Hand v. Pub. Co 186 Handforth v. Jackson 312 Handley v. Harris 402 Hands v. Slaney 40, 50, 468 Handy v. Brown 519 Handy v. Publishing Co 416 Haney v. Caldwell 619 Hanford v. Paine 406 Hanks v. Nagles 274 Hanly v. Blackford 92 Hanly v. Kansas City, etc. R. R 182 Hann v. Dekater 234 Hanna v. Andrews 319 Hanna v. Ingram 254 Hannah v. Fife 324 Hannibal v. Telephone Co.... 198 Hanover Nat. Bank v. Blake. . 171 172, 701 804 TABLE OF CASES. Sec. Hanover Nat. Bank v. Howell. . 401 Hansell v. Erickson 474 Hanser v. Sane 460 Hanson v. Armitage 152 Hanson v. Marsh 139 Harbele v. O'Day 124 Hapgood V. Houghton 485 Hapgood V. Shaw 474 Harbison v. Knoxville Iron Co. 2 Harhoard v. Cooper 518 Hardeman v. Donovan 558 Harding v. Am. Glucose Co. . . . 323 Harding v. Cowing 278, 529 Hardman v. Booth 457 Hardy v. Bank 428 Hardy Implement Co. v. Iron Works 519 Hargrave v. Adcock 90 Hargraves v. Cooke 93 Hargreaves v. Parsons. ... 124, 129 Harland v. Lilienthal 199 Harmer v. Cornelius 618 Harmer v. Killing 52 Harmon v. Reeve 138, 139, 141 Harmony v. Bingham 665 Harner v. Dipple 26, 27 Harp V. Osgood 129 Harper v. Ely 224 Harper v. Fairley 634 Harralson v. Barrett 452 Harrell v. De Normandie 571 Harriman v. Harriman 379 Harrington v. Crawford 286 Harrington v. Dock Co 204, 274 Harrington v. Iron Works .... 475, 589, 591 Harrington v. Railroad Co. . . . 134 Harrington v. Rich 120 Harris v. Bradley 513, 514 Harris v. Currier 460 Harris v. Frank 114, 125 Harris v. Harper 80 Harris v. Harris 400 Harris v. Huntbach 96 Harris v. Lee 48, 469 Sec, Harris v. McCormick 362 Harris v. McGoverns 629 Harris v. Roberts 302 Harris v. Roof 284 Harris v. Ross 58, 66 Harris v. Runnels. 173, 175, 178, 199 Harris v. Sharpless 639 Harris v. Telegraph Co 297 Harris v. Trickett 664 Harris v. Wall 65 Harris v. White 262, 265 Harris v. Wicks 216 Harrisburg Lumber Co. v. Washburn 664 Harrison v. Bank 508 Harrison v. Burnes 62 Harrison v. Close 379 Harrison v. Colton 192 Harrison v. Fane 41 Harrison v. Gibson 626 Harrison v. Harrison 103 Harrison v. Hicks 430 Harrison v. Maynard 339 Harrison v. Railroad Co 573 Harrison v. Sawtel 12^, 129 Harrison v. State 200 Harrison v. Sterry 406, 407 Harrison v. Willis 530 Harrison Mach. Works v. Co- quillard 502 Harrod v. Myers 57 Harsfield v. Converse 612 Harsinger v. Newman 128 Hart V. Aldridge 344 Hart V. Bush 152 Hart V. Gregg 520 Hart V. Hart 614 Hart V. Kip 632 Hart V. Machine Co 398 Hart V. Haney 443 Hart V. Prater 41 Hart V. Railroad Co 536 Hart V. Saftley 152 Hart V. Telegraph Co 297 Hartford Fire Ins. Co v. Rail- 805 TABLE OF CASES. See. road Co 332 Hartley v. Cummings 317 Hartley v. Tapley 515 Hartley v. Varner 122, 125 Hartley v. Wharton 65 Hartman v. Ins. Co 16 Hartman v. Meighan 666 Hartness v. Thompson. .. .66, 387 Hartranft v. Uhlinger 209 Harvey v. Briggs 64, 68 Harvey v. Coffin 660 Harvey v. Gibbons 568 Harvey v. Hunt 171, 701 Harvey v. Locomotive Works. . 402 Harvey v. Merrill 246, 249, 251 Harvester Co. v. Meinhardt.. 344 Harwood v. Roberts 368 Haskins v. Royston 341, 342 Haskinson v. Eliot 371 Haslaek v. Mayers 599 Hassard v. Rowe 39 Hastings v. Dollarhide . . . .51, 66 Hastings v. Wiswall 242 Hatch V. Douglas 248, 252 Hatch V. Hatch 52 Hatch V. Ins. Co 16 Hatch V. Oil Co 148 Hatcher v. Hall 626 Hathaway v. Hagan 206 Hathaway v. Moran 179, 416 Hathaway v. The Brantford City 410 Hatsall V. Griffith 377 Hattin v. Chase . . . 650, 651, 652 653, 655, 664 Hatzfield v. Gulden 284, 287 Haugh V. Blythe 134 Haven v. Railroad Co 509 Havens v. Lathene 584 Hawes v. Railroad Co 63, 64 Hawker v. Moore 390, 392 Hawkes v. Phillips 128 Hawkes v. Saunders 485 Hawkins v. Asssociation 219 Hawkins v. Ball 590 See. Hawkins v. Barney 559 Hawley v. Beverley 431 Hawley v. Bibb 395, 408 Hawley v. Bristol 515, 519 Hawley v. Harran 427 Hawley v. Kountze 214 Hawley v. Moody 102, 480 Haworth v. Huling 225 Haworth v. Montgomery 200 Hawralty v. Warren 669 Hax V. Acme, etc. Plaster Co.. . 515 Haxton v. Bishop 506 Hay V. Miller 6 Hayden v. Weldon 128 Haydock v. Coope 170 Hayes v. Jackson 93, 94 Hayes v. McConnell 460 Hayes v. Parker 67, 70 Hayes v. Railroad Co. 203, 301, 306 Haynes v. Churcli 575 Haynes v. Rudd 500 Hays V. Turner 585 Hayward v. Bank 626 Hayward v. Leonard 473, 477, 640, 666 Hazar v. Reclamation Dist. . . . 529 Hazard v. Ins. Co 450, 571 Hazard v. Irwin 635 Hazel v. Railroad Co 410, 421 Hazelton v. Week 492 Hazen v. Bearden 126 Head v. Goodwin 138 Head V. Railroad Co 293 Head v. Tattersall 613 Healey v. Scofield 438 Healy v. United States 452 Heard v. James 492 Heard v. State 188 Hearn v. Cullin 340, 430 Hearst v. Hite 458 Heath v. Flannery 653 Heath v. Heath 134 Heaver v. Lanahan 608 Heavilon v. Kramer 687 Hecht V. Caughron 352 806 TABLE OF CASES. Sec. Heckman v. Swarts 498 Hedderly v. Downs 371 Hedge v. Lowe 319 Hedges v. Fries 682 Heebner v. Ins. Co 404 Heffron v. Arnsly 99 Heffron v. Brown 460 Hefter v. Cahn 171, 701 Hehrum v. Kuhn 427 Heineke v. Falk 640 Heise v. Bumpaas 193 Helm V. Logan 110 Hellams v. Abbercrombie 180, 184, 187 Heller v. Board of Trade 383 Hellis V. Chapman 474 Helpenstine v. Meredith 562 Henderson v. Beard 99 Henderson v. Cummings 352 Henderson v. Hammond 368 Henderson v. Hicks 597 Henderson v. McDuffee 391 Henderson v. McGregor 14 Henderson v. McPike 278 Henderson v. New York 547 Henderson v. State 530 Henderson v. Stevenson 293 Henderson Build. & Loan Asso. V. Johnson 219 Hendrick v. Lindsay 352, 363 Hendricks v. Goodrich ....446, 598 Hendricks v. Railroad Co 299 Hendrickson v. Godsey 234 Henlin v. Hall 149 Hennersdorf v. State 189 Hennessy v. Bacon : . . . . 703 Henning v. Miller 481 Hennington v. Georgia . . . 182, 549 Hennington v. Stale 181 Henry v. Dietrich 384 Henry v. Fine 9, 21, 22 Henry v. McAllister 236 Henry v. Root 27, 52, 65, 66 Henry v. Sanson 233 Henry v. Township 377 807 Sec. Henry v. Wells 102 Hensel v. Association 219 Hentz V. Jewell 256 Herdie v. Young 492 Herekoff, etc. Lum. Co. v. Olra- stead 528 Herman v. Hodges 107 Herman v. Jeuchner 129 Hermann v. Curiel Ill Herreshoff v. Boutlneau ..312, 314 Herrick v. Belknap 646 Herrick v. Xewell 109 Herring v. Amwood 696 Herriter v. Porter 521 Hersh v. Railroad Co 325 Hervey v. Krost 567 Hess V. Culver 157 Hetfield v. Down 122 Hewes v. Bailey 377 Hewes v. Jordan 148 Hewitt v. Berlin 704 Hewitt V. Dement 216 Hewlett V. Nutt 530 Heywood v. Tillson 343 Hibbard v. Telegraph Co 297 Hibernia Nat. Bank v. Lacombe 419 Hibbert v. Aylatt 105 Hibblewhite v. McMorine 255 Hickam v. Hickam 627 Hickman v. Eggman 449 Hickman v. Haynes 648 Hickman v. Pinkney 640 Hickman v. Shimp 613 Hicks V. Chapman 12, 73 Hicks v. Cram 368 Hicks V. Ins. Co 404 Higgins V. Brown 499 Higgins V. Dewey 583 Higgins V. Hallock 125 Higgins V. Murray 146 Higgins V. Pitt 172 Higgins V. Senior 90 Higgins V. Scott 629 Higham v. Harris 598 Highley v. Bank 232 TABLE OF CASES. Hight V. Hipley 139 High tower v. Slay ton 517 Hill V. Anderson 61 Hill V. Bank 397 Hill V. Caniield 492 Hill V. Davis 489 Hill V. Day 7 Hill V. Dunham 185 Hill V. Gomme 277 Hill V. Johnson 254 Hill V. Manuf. Co 681 Hill V. Meeker 222 Hill V. Mortg. Co 240 Hill V. Nelms 56 Hill V. Paul 283, 517 Hill V. Spear 258, 295, 408 409, 447 Hill V. Swmney 201 Hill V. Taylor 237 Hill V. Umberger 626 Hillary v. Walter 624 Hillebert v. Porter 562 Hiller v. Ellis 217 Hills V. Elliott 79 Hills V. Snell 340, 457, 478 Hillson V. Browne 199 Hillyard v. Crabtree 474 Hillyer v. Bennett 71 Hilton V. Eckerly 321,341 Hilton V. Houghton 185, 193 Hime v. Idasey 595 Hinchman v. Lincoln 144 Hinckley v. Fowler 363, 479 Hind V. Holship 125 Hindmarck v. Hoffman 502 Hindrey v. Williams 575 Hinds V. Marmolejo 232 Hinney v. Baldwin 402 Hinsdale v. Humphrey 353 Hinson v. Lott 551 Hippes V. Griffin 90 Hissam v. PatiTish.G67, 008, G«9, 670 Hissong V. Railroad Co 299 Hitchcock V. Coker 311, 310 Hitchcock V. Galveston 459 Sec. Hitchcock V. Giddings 571 Hoadley v. McLaine 648 Hoadley v. Transportation Co. 288, 509 Hoboken v. Gear ?26, 530 Hockett V. State 307, 538 Hochster v. De La Tour 594, 604, 607 Hoddesdon Gas Co. v. Haselwood 98 Hodgdon v. Davis 208 Hodge V. Sloan 312, 318 Hodges V. Fries 687 Hodges V. Kowing 98 Hodges V. Manuf. Co 134 Hodgson V. Temple 177, 409 Hofflin V. Moss 276 Hoffman v. Bughlett 487 Hoffman v. Felt 102 Hoffman v. Gallaher 614 Hogan V. Easterday 114 Hogg V. Buffner 214 Holbrook v. Armstrong 82 Holbrook v. Burt 596 Holbrook v. Clapp 443 Holcomb V. Weaver 451 Hoi croft V. Barber 622 Holden v. Alton 301, 317 Holden v. Brooks 205 Holden v. Hardy 2, 4, 544 Holden v. Upton 175 Holden Steam Mill Co. v. Wes- tervelt 44^ Holladay v. Holladay 237 Holladay v. Kennard 582 Holladay v. Patterson 302 Holland v. Dickerson 561 Holland v. Taylor 269 Holland v. Wilson 479 Hollenback v. Bestine 337 HoUey v. Anness 671 Hollingsworth v. Detroit. .224, 241 Holman v. Johnson.. . . 161, 177 275, 331, 414, 447 Holman v. State 270 Holme V. Guffy 568 808 TABLE OF CASES. See. Holmes v. Bank 212 Holmes v. Blagg 63 Holmes v. Halde 20Q Holmes v. Hunt 260 Holmes v. Knights 129 Holmes v. Oil Co 351 Holmes v. Rice 26, 66 Holmes v. Williams 212 Holmes v. Williamson 434 Holshue V. Morgan 199 Holt V. Clarencieux 66 Holt V. Green 196, 198 Holt V. Holt 470 Holt V. Knowlton 395 Holt V. Thomas 449, 455 Holtzapffell v. Baker 573 Holyoke Co. v. layman 541 Homan v. Steele 385 Homan v. Stewart 667 Home Ben. Asso. v. Sargent. 19, 20 Homer v. Thwing 69, 70 Honaker v. Board 286 Hood V. League 483 Hoo3 V. Railroad Go 290, 294; Hooker v. Vandewater . 305, 321, 330 Hooksett V. Railroad Co 537 Hooper v. Edwards 188 Hooper v. Payne 66 Hooper v. Van Husen 518 Hoover v. Buck 107 Hope V. Association 330 Hope V. Hope 286, 677 Hopkins v. Butte 456 Hopkins v. Logan 98 Hopkins v. Hinl^ley 571 Hopkins v. O'Kane • 248 Hopkins v. Stefan 192 Hopkins v. Stove Co 341 Hopkins v. United States. 323, 324 Hopkinson v. Forster 526 Horacek v. Keebler 184 Horkan v. Nesbit 228 Hormby v. Clark 334 Horn V. Bank 567 Horn V. Ins. Co 16 See. Horn V. Luddington 104 Horn V. Railroad Co 427 Horner v. Frazier 133, 137 Horner v. Graves 313 Horner v. Webster 460 Hornthal v. Burwell 402 Horstmeyer v. Conners 30, 41 Horton v. Bauer 683 Horton v. McCarty 87, 97 Horton v. Thurber 228 Horton v. Tramway Co 191 Hosack V. Rogers 376 Hosford V. Kanouse 357 Hosford V. Nichols 243 Hosier v. Beard 14 Hosmer v. Railroad Co 295 Hosmer v. Wilson 609, 610 Hostetter v. Hallinger 357 Hotel Co. V. Wade 239 Houghtaling v. Ball 138 Houlton v. Dunn 284 Houston V. Frazier 491 Houlton V. Manteuffel 51, 55 Houlton V. Nichol 284 House V. Alexander 41, 43, 44 House V. Water Works 349 Houseman v. Water Co 366 Houser v. Lamont 113 Houser v. McGinnas 431,432 Houston V. Darling 375 Houston V. MerrifieFd 267 Houston, etc. R. R. Co. v. Harm 582 Houston, etc. R. R. Co. v. Hill 697 Houston, etc. R. R. Co. v. Snelling 640 Houston R. R. Co. v. Mallory. . 689 Hovey v. Chase 6, 9 Hovey v. Hobson. .9, 21, 22, 23, 24 Hovey v. Pitcher 639, 640, 655 How v. Loring 124 Howard v. Benton 345 Howard v. Borden 147 Howard v. Bugbee.555<5B2, 565, 566 Howard v. Castle 166 809 TABLE OF CASES. Sec. Howard v. Daly 602, 604, 606, 607, 686 Howard v. Gobel 483 Howard v. Hunt 597 Howard v. Manuf. Co 697 Howard v. Roberts 386 Howard v. Simpkins 41 Howard v. Stillwell Co 297 Howden v. HaigE 171, 172, 701 Howden v. Simpson 286 Howe V. Clancey 488 Howe V. Conduitt 594 Howe V. Hayward 153 Howe V. Howe 21 Howe V. Smith 153 Howe Mach. Co. v. Bryson . . . 697 Howe Machine Co. v. Gage. 551, 552 Howe Sew. Mach. Co. v. Ros- enteel 590 Howell V. Church 385 Howell V. Coupland 659 Howell V. Field 125 Howell V. Fountain 284 Howell V. Knickerbocker Ins. Co 570 Howell V. Showell 97 Howell V. Taylor 7 Howes V. Wireworks Co 660 Hewlett V. Hasweli 65 Howsmon v. Water oo.348, 349, 352 Hoxie V. Lincoln 62 Hoyt V. Casey 45 Hoyt V. Holly 319 Hoyt V. Pawtucket Inst 208 226, 228 Hoyt V. Thompson 228 Hubard v. Long 158 Hubbard v. Andrews 402 Hubbard v. Belden 475, 589 Hubbard v. Cummings 65 Hubbard v. Martin 452 Hubbard v. McNaughton 170 Hubbard v. Miller 316 Hubbard v. Railroad Co 293 Hubbell V. Flint 409 Sec. Hubbell V. Ins. Co 240 Huckins v. Hunt 171 Hudson V. Geary 181 Hudson Coal Co. v. Coal Co. . . 661 Huegin v. Wisconsin 315 Huff V. Nickerson 353 Huffman v. Houghlett 495 Huffman v. Starks 135 Hughes V. Dougherty 199 Hughes V. Edwards 570 Hughes V. Fisher 130 Hughes V. Frum 134 Hughes V. Griswold 228 Hughes V. Klingender 403 Hughes V. Penn. R. R. Co 421 Hughes V. Stanley 514 Hugerecht v. State 188 Hughston V. Nail 631 Huguenin v. Boseley 503 Hulbard v. Moore 274 Huling V. Drexell 229 Huling V. HuTing 12 Hull V. Louth 24 Hull V. Railroad Co .' . . . 288 Hull V. Ruggles 270, 271, 409 Hulse V. Machine Co 274 Hulst V. Association 666 Humber v. Brisbane 92 Humble v. Hunter 457,519 Humble's Case 107 Humphrey v. Clark 212 Humphrey v. Douglass 69 Hundley v. Louisville, etc. R. R. Co 337 Hungerford v. Moore 494 Hunkins v. Hunkins 105 Hunnewell v. Duxbury 158 Hunt V. Bridghan 634 Hunt V. Hecht 152 Hunt V. Knickerbocker 178 Hunt V. Lane 437 Hunt V. Rousmanier 453 Hunt V. Silk 448,599 Hunl V. Simonds 345 Hunt V. Standart 399 810 TABLE OF CASES. Sec. Hunt V. Wier 23 Hunt V. Wyman 613 Hunter v. Gardner 517 Hunter v. Giddings 359 Hunter v. Linn 229 Hunter v. Mills 105 Hunter v. Randall 158 Hunter v. Pfeiflfer fS5, 324 Hunter v. Robertson 634 Hunter v. Wetsell. 154, 156 Huntington v. Knox 359 Huntington v. Railroad Co. . . . 603 Hunton v. Nichols 629 Hurley v. Brown 92 Hurley v. Eddenfield 200 Hurley v. Lamoreaux 464 Hurson v. Gaum 312 Hurry v. Mangles 593 Hurt V. Ford 114 Husband v. Davis 382 Husband v. Husband 470 Huse Ice Co. v. Heinze 690 Hussey v. Horne-Payne 85 Hussey v. Jewett 66 Hustis V. Pickands 1D6, 198 Hutchen v. Gibson 286 Hutchins v. Heobard 276 Hutchins v. Webster 664 Hutchinson v. Hutchinson.... 134 Hutchinson v. Weldin 275 Huth V. Carondelet, etc. Co. . . . 56 Huttman v. Boulnois 622 Hutton V. Eyre 431 Hutton V. Padgett 96 Huttley V. Simmons 335, 342 Hutzler v. Lord , . . . 431 Hyatt V. Bank 395, 398, 408 Hyatt V. Clark 228 Hyde v. Goodnow 399 Hyman v. Cain 49 Ide V. Stanton 91, 141 Ihley V. Padgett 57 Iherd v. Beavens 667, 669 Illinois Cent. R. R. Co. v. Cobb 685 See. Illinois Cent. R. R. Co. v. Read 295 Illinois Cent. R. R. Co. v. Har- ris 292 111. Cent. R. R. Co. v. Illinois. . 539 Illinois Land Co. v. Bonner. 27, 66 Inchbald v. Coffee Co 688 Inchbald v. Western 009 Independence v. Ott 382 India Rubber Co. v. Koch 320 Indianapolis Chair Co. v. Wil- cox 27 Indianapolis, etc. R. R. Co. v. Ervin 306 Indianapolis R. R. Co. v. Allen 288 Ingersoll v. Randall 197 Ingersoll v. Roe 499 Ingles V. Usherwood 407 Ingraham v. Baldwin .... 9, 12, 25 Inhoff V. Witmer 12 In re Argus Co 670 In re Baker 8 In re Breitung 404, 405 In re Brooklyn 534,535 In re Considine 544 In re Davison 36 In re Debs 336 In re Dugend 57 In re Eight-Hours BFll 4 In re Eidenmuller 57 In re Empress Eng. Co 360 In re Eyer 93 In re Fritz's Estate 520 In re Garcelon 274, 520 In re Grilespie 508 In re Gordner 627 In re Hearn 36 In re Hodson's Settlement. .32, 52 In re Hong Wah 1 In re House Bill 2, 540 In re Hoyle 83 In re Humniel's Estate 118 In re Jacobs 4, 271 In re Jager 198 In re Kessler's Estate 460 In re Keymer 198 811 TABLE OF CASES. Sec. In re Kimball 400 In re King 69 In re Macleay 179 In re Maguire 544 In re Mechanics & Farmers Bank 560 In re MoRneux 340 In re Morgan 4 In re Morrissey 36 In re Negus 364 In re Penzansky 57 In re Preston 2 In re Rahrer 554 In re Rogers 704 In re Rothehan, etc. Co... 339, 360 In re Ryder 470 In re Saltykoflf 57 In re Schmidt's Estate 460 In re Snelling 7 In re Stein 15 In re Ten-Hour Law 4 In re West 516 in re Worthington 283 In re Wyatt 508 Insurance Co. v. Bullene. ... 521 Ins. Co. V. Colt 80 Insurance Co. v. Hull 330 Insurance Co. v. Rodel 19 Insurance Co. v. Water Co ... . 348 349, 350 International x>uilcf. & Loan Asso. V. Abbott 219 International R. R. Co. y. Daw- son 302 International, etc. Railroad Co. V. Hinzie 288 International Text Book Co. v. Weissinger 515 Inter-Ocean Publishing Co. v. Associated Press 322 Interstate Commerce Commis- sion V. Baird 326 Iowa City v. Johnson County. 452 453 Iron Works v. Warner 402 See. Iverson v. Shorter 561 Irvine v. Hanlin 449 Irvine v. Irvine. .26, 27, 56, 57, 331 Irvine v. Stone 139 Irwin V. Curie 176 Irwin V. Williar. .245, 249, 259, 305 Isaacs V. Davis 602, 605 Isaacs V. Hermann 464 Isle Royal Mine Co. v. Herlon. 492 Isler v. Baker 15 Ivenson v. Caldwell 128 Ivey V. Lelland 415, 420 Izard V. Izard 466 Jabriskie v. Railroad Co ■ 384 Jacobia v. Terry 74 Jacobs V. Credit- Lyonnais 420 Jacobs V. Pollard 394, 438 Jacobson v. Le Grange 465 Jacobus V. Railroad Co 288, 295 Jackisch v. Hardtke 430 Jackson v. Benson 79 Jackson v. Burchin 57, 66 Jackson v. Covert 139 Jackson v. Fassitt 212 Jackson v. Green 403 Jackson v. Gumear 9 Jackson v. Hough 445 Jackson Iron Co. v. Concentra- tion Co 354 Jackson v. Jackson 400 Jackson v. Lever 672 Jackson v. May 228, 235 Jackson v. Morris 215 Jackson v. Mortg. Co 417 Jackson v. Murray 388, 434 Jackson v. Myers 107 Jackson v. Seelye 79 Jackson v. Stanfield 113, 341 Jackson v. Stoekbridge 351 Jackson v. Travis. .. .208, 212, 230 Jackson v. Tupper 154 Jackson v. Walsh 541 Jacksonville, etc. Railway v. Hooper 568, 569, 575 812 TABLE OF CASES. See. Jacksonville, etc. R. R. Co. v. Manuf Co 691 Jacques v. Sax 27, 69 Jacquinet v. Boutron 577 Jaflfray v. King 618 James v. Morgan 568 James v. Muir 141 James v. Newton 521, 522, 523 524, 526 James v. Shorter 123 James v. State 264 Jameson v. Dimock 105 Jamison v. Wallace 254 Janin v. Brown 590 Jannin v. State 173 Jaques v. Golightly 176 Jaques v. Marquand 504 Jarboe v. Telegraph Co 297 Jared v. Vanvleet 457 Jarrett v. Cope 220 Jeflferson v. Asch 354 Jefferson Branch Bank v. Shelly 534 Jefferson v. Slagle 132 Jefford V. Ringgold 66 Jeffrey v. Bigelow 685 Jeffreys v. Gurr 435 Jelks V. Barrett 87 Jell V. Douglass 371 Jellett V. Rhode 135 Jemison v. McDaniel. . . .573, 580 Jemness v. School Dist 201 Jenesen v. Jenesen 7 Jenkins v. Fowler 345 Jenkins v. Frink 165, 169 Jenkins v. Hogg • • - ■ 168 Jenkins v. Jenkins 13, 61 Jenkins v. Lewis 234 Jenkins v. Locke 678 Jenkins v. Long 623 Jenkins v. School Dist 432 Jenkins v. Tucker 435, 485 Jenks V. School Dist 386 Jenness v. Wendell 143 Jennings v. Broughton 600 Sec. Jennings v. Camp 666 Jennings v. Lyons 589 Jennings v. Newman 485 Jennings v. Rundall 69, 70 Jermyn v. Moffitt 515, 518 Jerome v. Bigelow 163 Jerret v. Bartlett 301 Jesserich v. Walruff 484 Jeter v. Fellows 402 Jewett Pub. Co. v. Butler 164 Jewett V. Railroad Co 302 Jex V. Mayor 456 Jock V. McKee 110 John Hancock L. Ins. Co. v. Moore 19 Johns V. Bailey 193 Johns V. State 181 Johnson v. Brook 84, 674 Johnson v. Brown 184 Johnson v. Buck 85 Johnson v. Church 83 Johnson v. Cuttle 151 Johnson v. De Peyster 640 Johnson v. Dodgson 83 Johnson v. Foster 363 Johnson v. Gawtry 401 Johnson v. Harvey 434 Johnson v. Hodgson 196 Johnson v. Hubbell 465,466, 467, 667 Johnson v. Hudson 177 Johnson v. Hulings. . 177, 196, 198 Johnson v. Hunt 275 Johnson v. Ins. Co.... 63, 70, 348 404, 488 Johnson v. Jennings 448 Johnson v. Johnson 448 Johnson v. Kaune 249 Johnson v. Krassin 480 Johnson v. Lines 41, 67 Johnson v. McGregor 261 Johnson v. Pace 515, 517 Johnson v. Packet Co 430, 431 Johnson v. People 188 Johnson v. Pie 70 813 TABLE OF CASES. Sec. Johnson v. Railroad Co.. 288, 299 300, 325 Johnson v. Rockwell 66 Johnson v. Russell 246 Johnson v. Stark County 224 Johnson v. Steffen 673 Johnson v. Stone 9 Johnson v. Terry 277 Johnson v. Torpy 394, 437 Johnson v. University 644 Johnson v. Wadsworth .... 94, 95 Johnson v. Watson 82, 137 Johnson v. Welch 359 Johnson v. Willis 195 Johnston v. Browne 514 Johnston v. Jones 84 Johnston v. McConnell 178, 202 Johnston v. Mining Co... 625, 626 Johnston v. Trask 140 Johnstone v. Willing 594 Jolly V. Walker 121 Jones V. Ashburnham 119 Jones V. Bacon 96, 129 Jones V. Baird 488 Jones V. Bank 151,152 Jones V. Blocker 341,342 Jones V. Call 697 Jones V. Caswell 167 Jones V. Dow 89, 98 Jones V. Evans 21 Jonas V. Fields 114 Jones V. Fulcord 165 Jones V. Hoar... 461, 486, 487, 488 Jones V. Jones 605, 628 Jones V. Judd 475, 576, 589 659, 660 Jones V. Martin 466, 667 Jones V. Noy 15 Jones V. Orchard 129 Jones V. Parker 668 Jones V. Pouch 134 Jones V. Railroad Co 288 Jones V. Randall 245 Jones V. Reynolds 144 Jones V. Smith 196, 458 Sec. Jones V. Stanley 341 Jones V. Taylor 402 Jones V. Thomas 352 Jones V. Trust Co 396 Jones V. Tye 91, 92 Jones V. United States. . .569, 586 Jones V. Wilson 432, 457 Jones V. Yates 162 Jordan v. Coffield 43, 50 Jordan v. Dayton 200 Jordan v. Humphrey 228 Jordan v. Miller 134 Joseph V. Machine Co 483 Joseph V. Smith 128 Joslin V. Car Spring Co.. 352, 353 Joslyn V. Parlin 519 Joy V. St. Louis 668, 676 Judah V. Mieure 392 Judd V. Harrington 320,323 Judefind v. State 180, 181 Judge V. Stone 25 Judson V. Bessemer 278 Judson V. Corcoran 508 Judy V. Gilbert 105 Julliard v. Greenman 278, 529 Justh V. Bank 504 Justice V. Elwert 660 Justice V. Lange 98 Kahn v. Walton 249,257 Kamena v. Huelbig 508 Kanaga v. Taylor 402 Kanapolis Land Co. v. Morgan 647 Kane v. Bloodgood 630 Kane v. Clough 515 Kansas City v. O'Connell. .349, 366 Kansas City, etc. R. R. Co. v. Conlee 133 Kansas City, etc. R. R. Co. v. McCoy 284 Kansas Pac. R. R. Co. v. Peavey 299 Karcher v. Green 27, 35 Kassie v. Congregation 518 Kates v. Woodson 9 814 TABLE OF CASES. ■fcJee. Katzmyer v. Ennis 125 Kauffman v. Cooper 352 Kaufman v. Hamm. . . 184, 185, 187 Kaum V. Kaltwasaer 365 Keagy v. Trout 208 Keane v. Boycott 66 Kearley v. Thomson 275 Kearney v. Taylor 169 Kearney Milling and Elevator Co. V. Railroad Co 510 Kearson v. Pearson 573 Keat V. Allen 275 Keeble v. Hickeringill 341 Keedy v. Long 603, 618 Keeler v. Clifford 653 Keeler v. Herr 699 Keenan v. Stimpson 402 Keene v. Sage 357 Keesling v. Frazier 129 Kegan v. Malone 460 Keichen v. Lee 27 Keifer v. Summers 430 Keil V. Healey 9 Keiser v. State 425 Keith V. Herschberg Co 317 Keith V. Optical Co 312 Keller v. Boatman 389 Keller v. Hewitt 201 Keller v. Railroad Co 290 Kelley v. Lewis 208 Kelley v. Schupp 132 Kelleyville Coal Co. v. Harrier 1 2, 341 Kellogg V. Clark 82 Kellogg V. Larkin 313 Kellogg V. Miller 417 Kelly V. Bradford -.473, 477 Kelly V. Davis 30, 47, 470 Kelly V, Solari 450, 451 Kelsey v. Crother 678 Kemble v. Kean 677 Kemmitt v. Adamson 228 Kemp V. Fender 388, 434 Kemp V. Vigne 266 Kempe v. Bader 632 See. Kenard v. Cass 609 Kendall v. Gaxnead 137 Kendall v. Kendall 460 Kendall v. Lawrence 27, 66 Kendall v. May 11 Kendrick v. Baker 63 Kendrick v. Niesz 26, 52, 65 Kendricky v. Jervis 508 Kennard v. Whitson 465 Kennedy v. Brown 205 Kennedy v. Cochrane 173 Kennedy v. Eblen 99 Kennedy v. Green 626 Kennedy v. Poor 645 Kennemore v. Kennemore 105 Kenner v. Bitely 681 Kenney v. Queen 642 Kenney v. Railroad Co.. 288, 295 Kenneway v. Trelevan 96 Kent v. Kent 133, 134 Kenworth v. Stevens 640 Kenworthy v. Schofield 138 Kenyon v. Stewart 559 Kerchival v. Doty 703 Kerkhof v. Atlas Paper Co... 154 Kern v. Kern 13 Kerr v. Benefit Asso 16 Kerr v. Lucas 454 Kerr v. Lunsford 7 Kershaw v. Kershaw 520 Kerwin v. Ins. Co 25 Kestler v. Hereth 629 Ketchum v. Catlin 571 Kettle v. Harvey 666 Keyes v. Maynard 127 Key V. Davis 23, 25 Keys V. Harwood 482 Keyser v. Rice 258 Kidd v. Pearson 182, 326, 411 Kidder v. Hunt 480 Kidder v. Vandersloot 227 Kidney v. Persons 446, 488 Kiehne v. Wessell 10 Kiene v. Shaetiing 134 Kehlholz v. Wolff 239 815 TABLE OF CASES. Sec. Kihlbery v. United States. 642, 645 Kilbee v. Myrick 25 Kilbourn v. Sunderland 626 Kilcrease v. Johnson 399 Kiley v. Telegraph Co 297 Kilgore v. Jordan 64, 67, 69 Kilgore v. Rich 43, 4b Killbride v. Moss 121 Kilner v. O'Brien 234 Kimball v. Comstock 158 Kimball v. Cunningham 448 Kimball v. Morton 674 Kimball v. Noyes 362 Kimball v. Railroad Co 617 Kimball v. Vroman 613 Kimberly v. Jennings 677 Kimble v. Cummins 434 Kincaid v. Hooker 388, 436 Kincaid v. Kincaid 51, 103 Kine v. Turner 321 King V. Birdbrooke 619 King V. Brown. . . 108, 110, 479, 480 King V. Bushnell 80, 113 King V. Cummings 7 King V. Doolittle 571 King V. Fleming 185 King V. Hoar 368, 370 King V. Inhabitants 619 King V. King 474 King V. Missouri 555 King V. Steiren 602, 605 King V. Summit 96 King V. Toney 619 King V. Welcome 480 King V. Whitnash 180 King V. Woodbridge 684 Kinghorne v. Telegraph Co. . 297 Kingman v. Perkins 68, 508 Kingsbury v. Burrill 524 Kingsbury v. Earle 365 Kingsbury v. Kirwan.245, 249, 255 Kingsbury v. Powers 72 Kingsley v. Balcome 123 Kingston Bank v. Ettinger . . 450 Kinney v. Com 400 Sec. Kinney v. McDermott 195 Kinney v. Railroad Co 288 295, 300 Kinsman v. Parkhurst 328 Kinyon v. Kinyon 520 Kinyon v. Young 104 Kirby v. Johnson 149 Kirck V, Merry 281 Kirkland v. Lowe 406 Kirkham v. Morter 122 Kirkland v. Randen 246 Kirkpatrick v. Bonsall 249 254, 255 Kirkpatrick v. Smith 237 Kiser v. Halladay 483 Kitchen v. Lee 60 Kitzinger v. Sanborn 569, 573 Klapp V. Kleckner 386 Kleckley v. Leyden 175, 178 Klinck V. Price 243, 408 Knapp V. Hyde 499 Kneitle v. Newcomb 276 Knevals v. Blauvelt 518 Knickerbocker Ins. Co. v. Peters 18, 20 Knight V. Bean 589 Knight V. Hunt 171, 701 Knight V. Knight 627 Knight V. Mann 148 Knight V. McKinney 624 Knight V. Packer 170 Knight V. Railroad Co... 290, 294 Knights V. Naeru 269 Knights Templar Indem. Co. V. Berry 404 Knights Templars Asso. v. Greene 404 Knorr v. Bates 368 Knott V. Railroad Co 332 Knowlman v. Bluett 134 Knowlton v. Cooley 521 Knowlton v. Dorety 205 Knowlton v. Moore 395 Knox V. Flack 28 Knox V. Haug 12 816 TABLE OF CASES. See. Knoxville Iron Co. v. Harbison . 2 Koch V. Williams 110, 480 Koehler v. Buhl 614 Kohn V. The Renaisance 415 Koontz V. Bank 450 Koontz V. Franklin 530 Koplitz V. Gustavus Ill Korn V. Browne 528 Kountz V. Price 192 Kozel V. Dearlove 99 Kramer v. Irwin 696 Krebs v. Rosenstein 336 Kreger v. Leppel 474, 484 Kreith v. Myer 91 Kribben v. Haycraf t 287 Krohn v. Bantz 98 Krohn v. Williamson 674 Krutz V. Stewart 122 Kuhns V. Gates 156, 192 Kuhn's Estate 520 Kullman v. Greenbauni 171 172, 701 Kullman v. Simmes 252 Kupf ert V. Association 220 Kurner v. O'Neil 398 Ky. L. & C. Ins. Co. v. Hamil- ton 266 Lachman v. Block 395 Lacy V. Kinaston 376 Lacy V. Osbaldiston 618 Lacy V. Pixler 56, 59, 69, 70 Ladd V. Rogers 192 La Dow V. Bank 232 LaFayette M. Corpo. v. Magoon 385 Laflin v. Howe 448 Laidlou v. Hatch 122 Laird v. Campbell 701 Laird v. Hodges 419 Lake v. Tyson 429 Lakeman v. Pollard 475, 591 Lamar v. Micou 240, . 420 La Mar v. Weidman 198 Lamb v. Bralaski 474 Lamb v. Crafts 139, 146 See. Lamb v. Harris 600 Lamb v. Nice 360 Lamb v. Tucker 128, 353 Lambert v. Heath 448 Lamborn v. Commissioners .... 449 Lansburg v. Dist. Col 270 Lamoile County Nat. Bank v. Bingham 237 Lamore v. Frisbie 194, 195 Lampert v. Gas Light Co 351 Lampson v. Hobart 121 Lanahan v. Heaver 696 Lancaster Bank v. Wood 12 Lancaster Co. Bank v. Moore. 22 472 Lance v. Pearce 122, 125 Land and Loan Co. v. Bonner. 26 57 Land Co. v. Pitt 351 Landis v. Saxton 228 Landworlen v. Wheeler 383 Lane v. Grossman 671 Lane v. Shackford 137 Lang V. Railroad Co 616 Langdon v. Clayson 56 Langdon v. People 12 Langdon v. Richardson 125 Lange v. Werk 313 Langevin v. St. Paul 452 Langfort v. Tiler 153, 156 Langforth v. Gentry 629 Langhlin v. Harvey 278 Langworthy v. Little 402 Lannan v. Smith 515, 522 Lansden v. McCarthy 519 Lantry v. Parks 474 Lanz V. McLaughlin 102 Lapham v. Osborne 479 Lapping v. Duft'y 526 Lapsley v. Brashear 561 Largerfelt v. McKie 80 Larned v. Andrews 177 Larsen v. Jensen 126 Laroussini v. Werlein 671 8J7 TABLE OF CASES. See. La Rue v. Gilkyson 11, 472 La Rue v. Groezinger 518 Larson v. Chase 485 Larzion v. Piochi 521 Lash V. Parlin 91 Lasher v. Gardner 99 Latham v. De Loeselle 419 Lathrop v. Knapp 385, 700 Latt V. Booth 44 Laubenheimer v. Mann 313 Laughran v. Smith Ill Lavell V. Frost 124 Law V. Grant 352 Law V. Hodgson 178, 196, 205 Law V. Mills 406 Lawing v. Rentles 573, 587 Lawrence v. Bank 450 Lawrence v. Clark 171, 701 Lawrence v. Cook 134 Lawrence v. Fox. 339, 348, 353, 354 Lawrence v. Lawrence 107 Lawrence v. McArter 28 Lawrence v. Railroad Co 290 Lawrence v. Robinson 15 Lawrence v. Taylor 482 Lawrence v. United States .... 339 Lawrenson v. Butler 669 Lawson v. Lawson 445 Lawton v. Bletcn 249 Lawton v. Steele 1 Lea V. Cassan 330 Lea V. Hopkins 18Q Leach v. Marsh 471 Leacox v. Griffith 57, 61 Leahy v. Dugdale 519 Learn v. Upstill 121 Lease v. Railroad Co 300 Leatherberry v. Odell 618 Leather Cloth Co. v. Lorsont. . 309 314, 318 Leather Co. v. Hieronimous . . . 648 Leather Manuf. Co. v. Morgan. 428 Leavans v. Bank 229 Leavitt v. Dover 665 Leavitt v. Files 22 Sec. Leavitt v. Stern 112 Ledbetter v. Walker 99 Leddy v. Barney 375 Lee v. Abdy 405 Lee V. Core 675 Lee V. Cherry 83 Lee V. Griffin 694 Lee V. Hawks 81 Lee V. Hills 91, 134 Lee V. Kirby 672 Lee V. Lee 465 Lee V. Mahoney 85 Lee V. McKoy 632 Lee V. Merritt 446 Lee V. Sellens 171, 701 Lee County v. Abrahams 530 Leeds v. Little 655, 666, 699 Leep V. Railroad Co 1, 2, 541 Lee's Appeal 467 Lees V. Whitcomb 98 Leffingwell v. Warren 533 Lefils v. Sugg 41 Legat V. Clark 12 Lehigh Valley R. R. Co. v. Woodring 515, 517, 518 Lehman v. Field 413 Lehman v. Schmidt 464 Leicester v. Rose 701 Leightmens v. Kadetska 193 Leisy v. Hardin 411, 548, 552 Leith V, Irwin 222 Leloup V. Mobile 552 Lemnion v. Beeman 26, 64 Lemmon v. Box 121, 125 Lemonius v. Mayer 413, 416 Lento v. Clarke 92 Leonard v. Leonara 12 Leonard v. Patton 229 Leonard v. Pool 173 Leonard v. Stott 41 Leonard v. Vredenberg . . . 125, 127 Leonard v. Williams 222 Leonardson v. Hulin 667 Leopold V. Salkey 578 Le Peinteo v. Railroad Co ... . 684 818 TABLE OF CASES. Sec. Lerch v. Gallup 96, 129 Lerned v. Johns 89 Lerned v. Wannemacher 83 Leroux v. Brown.. 100, 101, 115, 116 Le Roy v. Beard 419 Le Sage v. Coussmaker 465 Leslie v. Lorillard 303, 304, 314, 318 Lesserrich v. Pettit 124, 125 Lessley v. Phipps 560 Lester v. Buel 249, 251, 254 Lester v. Heidt 91 Lester v. Howard 17;> Lester v. Jewett v;« Lett V. Morris 526 Levisee v. Railroad Co 4G2 Levistone v. Landreaux 355 Levy V. Herbert 606 Levy V. Yates 203 Levyeau v. Clements 340 Lewis V. Arbuckle 8 Lewis V. Brehme 87 Lewis V. Bright ITS Lewis V. Coal Co 3 ! 8 Lewis V. Hadley 420 Lewis V. Holmes 694 Lewis V. Land Co 348, 351 Lewis V. Lewis 432 Lewis V. Littlefleld 69 Lewis V. Maddoeks 466 Lewis V. Railroad Co 642, 645 Lewis V. Reichey 91 Lewis V. Sawyer 357 Lewis V. Welch.. 176, 178, 197, 205 Lewis V. Wood 88 Lewis Invest. Co. v. Boyd 222 Lhoneux v. Corporation 404 Libbey v. Downey 178 Libby v. Robinson 446 Libhart v. Wood 619 License Tax Cases 547 Lickbarrow v. Mason 510 Liddell v. Wiswall 391 Lidderdale v. Montrose 283 Life Asso. v. Waller 19 Sec. Lightbody v. Smith 515 Ligonier v. Ackerman 458 Lilly V. Hays 360 Lilly V. Tobbein 367 Lilly V. Wagoner 12, 517 Lime Co. v. Green 352 Lime Rock Bank v. Plimpton. . 504 Lincoln v. Buckmaster . . . 9, 22, 472 Lincoln v. Kinzey 128 Lincoln v. Preserving Co 88 Linder v. Carpenter 202, Lindley v. Simpson 130 Lindsay v. Hill 420 Lindsey v. Boone County 458 Lindsey y. Lindsey 7 Lindsley v. Railroad Co. . .288, 617 Line v. Nelson 379 Liness v. Hesing 279, 280 Lingeman v. Shirk 92 Linneman v. Moross 354 Lipp V. Hunt 105 Little V. Bmvers 456 Little V. Dawson 465 Little V. Dougherty 85 Little V. Gibbs 430 Little V. Poole 19j, 205 Little V. Portland 521, 522 523, 626 Little V. Tliurston 595 Littlefleld v. Littleticld 634 Little Miama R. K. Co. v. Ste- vens 299 Littler v. Snively 627 Livermore v. Crane 364 Liverpool v. Wright 283, 517 Liverpool, etc. Asso. v. Fai.- hurst 70 Liverpool Marine Credit Co. v. Hunter 258 Liverpool Steam Co. v. Ins. Co. 240 288, 420, 421 Livingston v. Page 280 Livingstone v. Tremper 375 Lloyd V. Brewster 600 Lloyd V. Giubert 240, 420 819 TABLE OF CASES. Sec. Lloyd V. Malone 165 Lloyd V. Scott 233 Lobdell V. Lobdell 106 Lobdell V. Mason 99 Locke V. Smith 49 Lockett V. Usiy 560 Lockman v. Wood 67 Lockwood V. Barnes 82 Lockwood V. Mitchell 241 Lockwood V. Thorne 427, 429 Lockwood V. Wilson 120 Lodge V. Dicas 368 Loeb V. Peters 510 Logan V. Gardner 27 Logan V. Musie 255 Logan V. Trayser 434 Logan V. Wallis 464 Logan V. Weinholt 466 Log Cabin Permanent Build. Asso. V. Gross 238 Lohman v. State 270 Lombard v. Gregory 208 Lomen v. Grossman 474 Lomerson v. Johnston 499 London Guaranty and Accident Co. V. Horn 335, 337 Long V. Fox 25 Long V. Girdwood 406 Long V. Hartwell 99 Long V. Miller 85 Long V. Railroad Co 330, 582 Long V. State 271 Long V. Towl 304 Longfellow v. Moore 648 Longley v. Griggs 390, 434 Longshore Printing Co. v. How- ell 334, 335 Loomis V. Ins. Co 266 Loomis V. Spencer 14 Lord V. Dall 266 Lord V. Davis 130 Lord V. Railroad Co 684 Lord V. Thomas 578, 008 Lord V. Wheeler 572, 575 Loren v. Hillhouse 639, 055 Sec. Lorillard v. Clyde 354, 658 Lorillard v. Palmer 569 Loser v. Board 283 Lound V. Grimwade 164 Louisiana v. New Orleans .... 555 Louisiana v. Pilsbury 533 Louisville, etc. R. R. Co. v. Barkhouse 512 Louisville, etc. R. R. Co. v. Boudenschatz 667, 668, 669 676, 677 Louisville, etc. K. R. Co. v. Commonwealth 188 Louisville, etc. R. R. Co. v. Dies 288 Louisville, etc. R. R. Co. v. Taylor 295 Louisville, etc. R. R. Co. v. Flanagan 325 Louisville, etc. R. R. Co. v. Offutt 134 Louisville, etc. R. R. Co. v. Orr 299 Louisville, etc. R. R. Co. v. Philyaw 102 Louisville, etc. R. R. Co. v. Sumner 302, 689 Louisville Gas Co. v. Citizens Gas Co 303 Love V. Harvey 245, 246 Love V. Welch 98, 704 Love V. Wells 183 Lovelock V. Franklyn 607 Lovejoy v. Howe 352 Lovejoy v. Whipple 185, 193 Lovridge v. Cooper 508 Low V. Prichard 213 Low V. Rees Printing Co 4 Lowe V. Griffith 44 Lowe V. Harris 92 Lowell V. Railroad Co 394 Lowndes v. Anderson 505 Lowery v. Cate 68 Lowry v. Dillman 249, 251 Lozear v. Shields 7 Lubbock V. Tribe 442 820 TABLE OF CASES. See. Lucas V. Gadwin 473, 477 Lucas V. Harper 246 Lucas V. Parsons 8 Luce V. Deitz 669 Lucke V. Clothing Cutters 336 341, 342 Luckens v. Hazlett 234 Ludlow V. Van liensselaer .... 415 Lufkin Rule Co. v. Fringeli.. 312 Lull V. Korf 645 Lully V. Morgan 257 Lum V. McEwen 274 Luman v. Hitehens 1 Lumley v. Gye 334, 341, 342 Lumley v. Ravenscroft 668, 669 Lumley v. Wagner 677 Lundy v. Railroad Co 294 Lyle V. Shinnebarger 450 Lyman v. Railroad Co 537 Lyman v. Townshend 274 Lynch v. Bogy 457 Lynch v. Doran 7 Lynch v. Lumber Co 699 Lynchberg Nat. Bank v. Scott. 212 Lynd v. McGregor 64 Lynde v. Lynde 274 Lyng V. Michigan 552 Lynn v. Railroad Co 646 Lyon V. Annable 440 Lyon V. Culbertson ..245, 249, 255 Lyon V. King 134 Lyon V. Mitchell 286 Lyon V. Strong 183 Lyons v. Hodgen 257 Lyons v. Wilkins 334, 335, 336 Lythgoe v. Vernon 487 Lytle V. Bowden 443 Macauley v. Turney 336 MacGreal v. Taylor 28, 69 Mackay v. Telegraph Co 297 Mackey v. Smith 125 Mackler v. Railroad Co 642 Maclary v. Turner 145 Macombier v. Dane 283 Sec. Maddison v. Alderson ....101, 104 108, 138 Maddox v. Rowe 667 Maddox v. Simmons 7 Maeder v. Norton 626 Magce V. Billingsly 150 Magee v. Welsh ^ . 46 Magoffin V. Muldrow 488 Magoun v. Bank 198 Magnon v. Clay 124 Maguire v. Dinsmore 295 Mahoney v. Evans 41 Mahood v. Teazle 274 Mahoon v. Greenfield 487, 488 Maio V. Tea Co 677 Makall v. Ratchford 336 Makin v. Watkinson 659 Malbon v. Birney 655 Malcolm v. Fullerton 427 Male V. Roberts 401 Mallalieu v. Hodgson 701 Mallen v. May 316, 701 Mallen v. Wenham 515, 516 Mallory v. Gillett. 123, 127, 128, 129 Malone v. Ice Co 124, 484 Malone v. Railroad Co 293 Maloney v. Dewey 12 Maloney v. Echart 230 Maloney v. Nelson 129 Mancy v. Hart 483 Mandel v. Butler 612 Mandeville v. Harman 319 Mandlebaum v. Gregorich .... 177 Mandon v. Ins. Co 404 Mandville v. Welch 521 Manhattan Life Insur. Co. v. Broughton 17, 19 Manistee Iron Work Co. v. Lumber Co 661 Manly v. Howlett 106 Mann v. Betterley 7 Mann v. Blanchard 158 Manning v. Johnson 27, 69 Manning v. Pipper 667 Mansfield v. Gordon 66 821 TABLE OF CASES. See. Mansfield v. Lynch 453 Manstick v. Ranege 341 Manton v. Ray 675 Mantz V. Maguire 90 Manufacturing Co. v. Ames- burg 456 Manufacturer's Bank v. Barnes 428 Manufacturing Co. v. Barber.. 383 Manufacturers' Outlet Co. v. Longley 336 Marble Co. v. Ripley 667, 668 672, 677, 678 Marchand v. Association 463 Marcy v. Marcy 82, 137 Marden v. Champlin 83 Marey v. Crawford 129 Marie v. Garrison 169 Mariner v. Collins 460 Marino v. Lahmaier 203 Market Co. v. New Orleans... 573 Marlin Fire Arms Co. v. Shields 340 Marlow v. Pittsfield 469 Marr v. Ray Ill Marserve v. Anderson 270 Marsh v. Hyde... 83, 139, 150, 151 Marsh v. McPherson 609, 611 Marsh v. Railroad Co 302 Marsh v. Russell 322 Marshall v. Lynn 81 Marshall v. Marshall 7, 178 Marshall v. Meech 526 Marshall v. Quinn 283 Marshall v. Railroad Co.. 280, 284 286, 424 Marshall v. Rice 218 Masterson v. Brooklyn 688 Marston v. Bigelow 361 Marston v. Marston 425 Martin v. Goldstein 180 Martin v. Hunt 592 Martin v. Johnson . . .396, 240, 241 Martin v. McFall 341 Martin v. Murphy 312, 314 Martin v. Patterson 105 Martin v. Peet 339, 348 See. Martin v. Potter 508 Martin v. Quinn 430 Martin v. Railroad Co 300 Martin v. Schoenberger 666 Martin v. Stubbins 267 Martin v. Thayer 5 Martin v. Wilson 395, 638 Martin v. Wright 466 Martus v. Houck 475, 640 Martyn v. Arnold 124 Marvin Safe Co. v. Norton. . . . 402 Maryland v. Railroad Co 529 Maslin v. Hiett 375, 387 Mason v. Eldred 370 Mason v. Hale 557 Mason v. Hall 352 Mason v. Lake 399 Mason v. Lord 237 Mason v. Pierce 238 Mason v. Prendergast 502 Mason v. Thompson 585 Mason v. Waits 491, 495 Mason v. Wright... 29, 44, 60, 468 Masonic Asso. v. Jones 404 Masonic Mut. Ben. Soc. v. Burk- hart 269 Massachusetts Gen. Hospital v. Asso. Co 541 Massachusetts Gen. Hospital v. Fairbanks 11 Massey v. Wallace 274 Massie v. Hiatt 37 Mastin v. Halley 068 Mater ne v. Horwitz 163 Matherson v. Davis 32 Mathews v. People 341 Mathews v. Railroad Co 537 Matt V. Clark 508 Matthews v. Associated Press. . 312 Matthews v. Coe 210, 1^28 Matthews v. Poytress 512 Mathews v. Seaver 128 Matthews v. Wason 243 Matthieson v. McMahon. . . 14, 472 Maurer v. JMidway 368 822 TABLE OF CASES. See. Maurine v. Fogelbeyer 126 Mauser v. Davis 600 Maxfield v. Schwartz 352 Maxfield v. West 104 Maxim Nordenfelt Guns and Ammunition Co. v. Nordenfelt 311 Maxton v. Green 249, 255 Maxwell v. Gerard 585 Maxwell v. Griswold 452 Max^-ell V. Railroad Co 288 Maxwell v. Swigart 200 May V. Bank 406 May V. Campbell 212 May V. Flint 228 May V. Wanamacher 406 May V. Williams 96, 129 Maybury v. Berkery 429 Mayer v. Stone Cutters 336 Maynard v. Railroad Co 295 Mayo V. Assurance Soc 398 Mayor v. Bowman SOI Mayor v, Colgate C29 Mayor v. Hughes 430 Mayor v. Lefferman 449, 455 Mayor v. Linck 181 Mayor v. New York 450 McAfferty v. Hall 474 McAllester v. Haden 262 McAllister v. Hoti'man 502 McAllister v. Smith 418 McAllister v. Sprague 379 McAndrew v. Telegraph Co. . . . 297 McArthur v. Luce 450 McAuley v. Carter 613 McAuliff V. Parker 629, 631 McBlain v. Cross 85 McBratney v. Chandler ...... 284 McBrazer v. Cohn 67 McCabe v. Blymyre 402 McCabe v. Gray 507 McCabe v. Raney 635 McCagg V. Woodman 5L'6 McCall V. California li'2 McCall V. Capehart 163 McCall V. Hampton 520 Sec. MeCall V. Parker 33 oNIcCandless v. Steel Co 274, 281 McCarthy v. Nash 145 McCarty v. Carter 39, 46 ]\IcCarty v. Murray 66 McCarty v. Woodstock Iron Co. 57 65 McCaull V. Graham 677 McCawley v. Railroad Co. .288, 295 McCay v. Railroad Co 306 McClain v. Davis 21, 24 McClary v. Railroad Co 48a McClay v. Hedges 474 McClellan v. Bank 377 McClellan v. Sanford ..80, 82, 134 McClintie v. Wise 508 McClintock v. Laing 107 McClure v. Briggs 039 McClure v. Otrich 114 McClure v. Rabeu 520 McClure v. Railroad Co 302 McCollough Iron Co. v. Car- penter 619 McConahey v. Griffy 134 MeConnel v. Delaware 488 McConnell v. Brillhart 88 McConnell v. Kitchens . . . 175, 178 196, 198, 202 McCord v. Williams 319 McCormick v. Danville 612 McCormick v. Littler 10, II 12, 22 McCosh v. Crow 340 McCoy V. Hoflman 38 McCracken v. Hayward . . . 528, 555 565, 566 McCracken v. San Francisco. . 3.52 450 McCraith v. Bank 123 McCraney v. Alden 234 McCrary v. Ruddick 458 McCrea v. Purmont 98 MeCrellis v. B.irtlett 11, 472 McCullough V. Virginia . . .560, 565 McCurry v. Gibson 200 823 TABLE OF CASES. See, McDaniel v. Parks 602, 605 McDonald v. Aufdengarter . . . 234 McDonald v. Beer 234 McDonald v. Lynch 450 McDonald v. Magruder . . . 390, 434 McDonald v. McCallon t)77 IVIcDonald v. Morton 12 McDonald v. Railroad Co. .043, 645 McDonald v. Youngbluth 107 McDowell V. Laev 352, 362 McDuffee v. Railroad Co.. 306, 325 McEacherman v. Railroad Co. . 290 McElmoyle v. Cohen 638 McElpatrick v. Hicks 233 McElroy v. Buck 85, 91 McElroy v. Lewis 15 McElroy v. Ludlum 103, 134 McElroy v. Seery 88, 97 McElroy's Case 5 McFarland v. Bank 233 McFadden v. Railroad Co 288 McGahey v. Virginia 528 McGarry v. Nicklin 240, 418 McGatrick v. Wasson 188 McGavoek v. Whitford 72 McGilvery v. Moorhead 377 McGinnis v. Commonwealth ... 10 McGinnis v. Fernandes 1 12 McGinnis v. Loring 388 McGovern v. Hern 88 McGovern v. Ins. Co 225, 226 McGowen v. West 114 McGratli v. Merwin 189 McGregor v. Balch 368 McGregor v. Gardner 622 McGregor v. McGregor 134 McGregor v. Railroad Co 497 McGuire v. Campbell 206 McHose V. Fulmer 682 McHquhan v. Taylor 577 Mclntyre v. Parks 398, 409 413, 447 Mclntyre v. Yates 229 McKaney v. Cooper 26, 67 McKay v. Carrington 596 Sec. McKay v. Railroad Co 293 McKee v. Jones 412 McKee v. Judd 518 McKeegan v. O'Neil 467 McKenna v. Merry 41, 43, 50 McKenney v. Harvie 480 McKennon v. McEwan 685 McKenzie v. Bank 128 McKenzie v. 1" arrell 95 McKenzie v. Linen Co 428 McKibben v. EUingsen 406 McKinnell v. Robinson 447 McKinnes v. Estes 185 McKinney v. Whiting -. 158 McKissick v. McKissick 416 McLain v. Davis 14 McLane v. Creditors 398 McLaren v. Clark 231 McLaren v. McMartin 634 McLaughlin v. Austin 127 McLaughlin v. Piatt 148 McLendon v. Frost 122 McLeran v. Benton 631 McMaster v. Vernon 370 McMichael v. Carlyle 628 McMillan v. Mallay 477 McMillan v. Railroad Co 290 McMillan v. Sprague 560 McMinn v. Phipps 165 McMullin V. Hoffman 321 McMullen v. Rafferty 634 McMullen v. Winfield, etc. Asso. 635 McNeil V. Hill 513 McNichol V. U. S. etc. Asso. . . . 404 McQueen v. Bank 445 McQueen v. Fox 485 McTague v. Association 596 MeWhinne v. Martin 105 Meacham v. Dow 279 Meacham v. Ins. Co 18, 20 Mead v. Phoenix Ins. Co 63 Meaker v. Fiero 216 Mechanic's Bank v. Levy 502 Mechanics Build. Asso. v. Whit- acre 632 824 TABLE OF CASES. Sec. Medbury v. Watrous 38, 482 Mederas v. Hill 569, 573 Medvvay v. Needham 178, 400 Meech v. Lee 49?» Meflin v. Milton 133 Meguire v. Corwine 279, 280 Mehlhop V. Rae 60 Meincke v. Talk 146 Melchert v. Telegraph Co 245 Melchoir v. McCarty 192, 205 Melins v. Duncan 449 Mellen v. Whipple ...353, 356, 359 Meller v. Goldsmith 700 Mellet V. Bateman 635 Mellon V. Dawson 92 Melone v. Keener 128 Melville v. DeWolf 660 Memphis v. United States .... 555 Memphis, etc. Railroad Co. v. Neighbors 596 Memphis Nat. Bank v. Sneed. . 14 Menkins v. Lightner 8 Mentone v. Athawes 575 Mentz V. Newmiller 83, 87 Mentzer v. Telegr. Co 693 Mercer v. Kelso 7 Mercer County v. Hubbard .... 224 Merchants' Bank v. Rawls.445, 511 Merchants' Bank v. Spalding. . 398 415 Merchants' Desp. Co. v. Smith. .580 Merchants', etc. Bank v. Do- shiell 660 Merchants', etc. Ins. Co. v. Mc- Lain .599 Merchants' Fire Ins. Co v. Grant 65 Merchants' Nat. Bank v. Bank. 450 Meredith v. Crawford 62 Meredith v. ]\Ieigh 152 Meridian Water Co. v. Schul- horr 274 Meriwether v. Smith 1!;2 Meroney v. Association . . .220, 419 Merriam V. Cunningham. 41, 44, 47 Set-. Merriam v. Hassam 630 Merriam v. Lumber Co 364 Merriam v. Stearns 183, 192 Merrill v. Bell 570 Merrill v. Downs 193 Merrill v. Greon *J52 Merrill v. Mclntire 177 Merriman v. Chapman 612 Merriman v. McManus 132 Merritt v. Earle 187, 615 Merritt v. Gumaer 6 Merritt v. Ins. Co 20 Merritt v. Robinson 597 Merritt v. Wittich 698 Merryweather v. Nixan. . . . 394, 434 439 Mersey, etc. Co. v. Naylor .... 594 Mervine v. Sailer 278 Merwin v. Austin 508 Merwin v. Chicago 517 Merz Capsule Co. v. Capsule Co 320, 323, 329 Messenger v. Railroad Co 306 Messmore v. Cunnington 91 Messmore v. Lead Co 682, 685 696, 698 Metcalf V. Kincaid 515, 518 Metcalf V. Waterman 638 Methven v. Heat & Power Co. . 508 Metson v. Roath 52 Mette V. Feltgen 57 Meux V. Bell 508 Mexican International Banking Co. V. Lichtenstein 272, 330 Meyer v. Estes 312, 368 Meyer v. Gra'fBn 125 Meyer v. Lowell L*52 Meyer v. Muscatine 208 Meyer v. Richards 398 Meyer v. State 244 Michael v. Albright 391 Michaelis v. Wolf C'43 Michaels v. Railroad Co 583 INlichigan Central R. R. Co. v. Curtis 683 825 TABLE OF CASES. Sec. Michigan Mut. Ben. Asso. v. Eolfe 269 Michigan Mut. L. Ins. Co. v. Naugle 19, 20 Middleboro v. Rochester 13 Middleburg College v. Chandler 43 Middletown Bank v. Jerome. . . 212 Mighell V. Dougherty 146 Miles V. Alford Estate Co. .82, 137 Miles V. Lingerman 61 Miles V. Mcllwraith 428 Miles V. Stevens 571 Miles V. Thorn 284 Milks V. Eich 128 Millard v. Baldwin 356, 363 Mill Dam Foundry v. Hovey . . . 6C0 Miller v. Ammon 173, 175 Miller v. Ball 105 Miller v. Bledsoe 521 Miller v. Campbell 405 Miller v. Cook 94 Miller v. Craig 7 Miller v. Eldredge 110, 479 Miller v. Fenton 394, 437 Miller v. Gittings 258 Miller v. Goddard 474, 602 Miller v. Ins. Co 206, 274 Miller v. Lorentz 103 Miller v. Phillips 477, 640 Miller v. Post 175, 178, 197 Miller v. Eace 504, 512 Miller v. Eailroad Co 224, 541 Miller v. Sims 60 Miller v. Smith 41 Miller v. State 541 Miller v. Tiifany ....390, 417, 420 Miller v. Wilson 101. 115, 403 Miller v. Woodward 572 Miller's Appeal 460 Millett V. People 4 Milligan v. Pollard 14 Milliken v. Pratt 395, 397 401, 408, 420 Mills V. Brown 129 Mills V. Graham 69 Sec. Mills V. McDaniels 449 Mills V. Mills 284 Mills V. Williams ...187, 240, 241 Mills V. U. S. Printing Co. 336, 341 Milne v. Field 646 Milne v. Huber 416 Milne v. Moreton 406 Milnes v. Duncan 501 Milne's Appeal 629 Milroy v. Iron Co 521 Miltimore v. Railroad Co 582 Milwaukee, etc. E. E. Co. v. Smith 398 Minard v. Mead 89 Miner v. Bradley 448, 599 Mineral Point Railroad v. Bar- ron 419 Minich v. Huff 129 Mining Co. v. Fraser 697 Minneapolis, etc. Manuf. Co. v. Manuf. Co '. 641 Minneapolis Harvest Works v. Kaessner 216 Minnesota v. Barber 549 Minnesota Lumber Co. v. Coal Co 254 Minock v. Shortridge 27 Mintern v. Laru 534 Mirebach v. Bank 14 Miskey's Appeal 25 Misner v. Knapp 262 Mississippi, etc. E. R. Co. v. Green 576 Mississippi Logging Co. v. Eob- son 573 Missouri, etc. E. E. Co. v. Fagan 617 Missouri, etc. E. E. Co. v. Ha- ber 549 Missouri Pac. E. E. Co. v. Iney 288 Missouri Valley L. Ins. Co. v. Sturges 267 Mitchell V. Banlc 401 Mitchell V. Lapage 340, 457 Mitchell V. Lyman 208, 220 826 TABLE OF CASES. Sec. Mitchell V. Reynolds 311 Mitchell V. Kingman 9 Mitchell V. fScott 205 Mitchell V. Smith 196 Mitchell V. Vance 281 Mittenhal v. Mascagni 396, 420 Mix V. Ins. Co 230 Mixer v. Howaith 146, 694 Mobile V. Watson 555 Mobile, etc. E. R. Co. v. Felrath 494 Mobile, etc. R. R. Co. v. Gilmer 689 Mobile, etc. R. R. Co. v. Hop- kins 295 Mobile, etc. R. R. Co. v. People 302 Modisett v. Johnson 667 Mogul Steamship Co. v. Mc- Gregor 335, 341 Mohr V. Miesen 249 Mohr V. Tulip 12 Moley V. Brine 60 Mollyneaux v. Wittenberg .... 316 Molton V. Camroux 22, 25 Monaghan v. Ins. Co 66 Monaghan v. School Dist 470 Monroe v. The Iowa 410 Monson v. Bragdon 678 Monson v. Williams 444 Montague v. Flocton 677 Montague v. Garrett 137, 479 Montague v. Lowry 324 Montgomery v. Edwards. . .100, 114 Montgomery v. W right 402 Monumental Asso. v. Herman . . 67 Moody V. Leverich 603 Moody V. Longfellow 492 Moody V. Walker 446 Moody V. Wright 518 Mooney v. Iron Co 475 Moore v. Appleton 437 Moore v. Bruner 391 Moore v. Carter 699 Moore v. Chenault 97 Moore v. Church 406 Moore v. Eddowes 450 Moore v. Garwood 44S See. Moore v. Hershey 14, 24 Moore v. Holcombe 508 Moore v. House 363 Moore v. Mahaska County. ... 281 Moore v. Martin 561 Mooie V. Murdock 184, 187 Moore v. Nat. Bank 357, 5'j8 Moore v. Rogers 597 Moore v. Shields 445 Moore v. Taylor 87, 99 Moore, etc. Hardware Co. v. Hardware Co 316 Moores v. Bricklayers' Union. . 335 341 Moorhouse v. Colvin 4C6 Moot V. Association 647 Moran v. Dunpliy 337 More V. Bennett 313, ;i21 More V. Clymer 180, 184, 185 Moreau v. Dumagene 620 Moreau v. Edwards 319 Morehead v. Wotlyus Ill Moreland v. Davidson 458 Morford v. White 464 Morgan v. Bailey 183 Morgan v. Battle 105 Morgan v. Hetler 651, 655 Morgan v. Palmer 452 Morgan's Steamship Co. v. Board 547 Morienthal v. JNlosier 634 Morier v. ilorgau 443 Morin v. Martz 98 Morley v. Attenberough 448 Morley v. Railroad Co. 533, 556,563 Morrill v. Aden 65 Morrill v. Mackmau Ill Morrill v. Moyes 515, 518 Morrill v. State 551 Morris v. Assurance Co 16 Morris -v. Burdett 423 Morris v. Cleasby 87 Morris v. Colman 317 Morris v. Fox 669 Morris v. Hale 330 827 TABLE OF CASES. Sec. Morris v. Manuf. Co 312 Morris v. Mayor 456 Morris v. Osterhout 125 Morris v. Wilbaux 399 Morris Canal v. Van Vorst . . . 379 Morris Run Coal Co. v. Coal Co 321, 324, 331 Morrison v. Baker 122 Morrison v. Davis 583, 616 Morrison v. Dingley 148 Morrison v. Herrick . 105 Morrison v. Markham 231 Morrison v. Poyntz 391 Morrissey v. Broomal 621 Morrissey v. Kinsey 125, 132 Moritz V. Larsen 474 Morrow v. Campbell 580 Morrow v. Higgins 99 Morrow v. Robinson 624 Morrow v. Starke ....._ 377 Morse v. Bellows 377 Morse v. Brackett 448 Morse v. Ely 62, 64 Morse v. Gould 558, 560 Morse v. Machine Co 316 Morse v. West 198 Morse v. Wheeler 52 Morse Machine Co. v. Morse.. 318 328, 329 Mortmer v. Capper 672 Morton v. Dean 92 Morton v. Naylor 526 Morton v. Tibbett 148, 151 Morton v. Stewart 28, 49 Morton v. Telegr. Co 693 Mory V. Michael 358 Mosely v. Baker 584 Mosely v. Fullerton 392 Mosely v. Vanhooser 185 Moses V. Arnold 488 Moses V. Association 237 Moses V. Lawrence Co. Bank . . 96 Moses V. Macpherlan 5Ul Moses V. Stone 482 Mosher v. Railroad Co 294 See. Moslin V. Railroad Co 288 Moss V. Culver 102 Motley V. Ins. Co 353 Mott V. Rowland. 240, 241, 396, 399 Mott V. Water Co 349, 350 Moulding v. Trussing 91 Moule V. Garrett 440 Moulton V. Harris 105 Moulton V. McEwen 473, 651 652, 655, 6Ub Moulton V. Railroad Co 617 Mount V. Waite 500 Mountstephen v. Lakeman .... 635 Mournin v. Trainer 105 Mowry v. Bishop 208 Moyer v. Cantieny 287 Moyer v. Shoemaker 446 Mozell V. Burnett 570 Mozings V. Ross 634 Mudge V. Oliver 340, 457, 478 Mudgett V. Clay 105 Mugler V. Kansas 646 Muir V, Schenck 508 Muldoon V. Railroad Co 295 Mulhall V. Quinn 515,518 Mullalieu v. Hodgson 171 Mullen V. Reed 404 Muller V. Riviere 128 Mullett V. Mason 685 Mulligan v. Railroad Co 290 Mullin V. Bloomer 597 IvjLumford v. Canty 258, 402 Mumf ord v. Tolan 229 Mun V. Commission Co 212 Munday v. Kaufman 29 Mundorff v. Kilbourn 466 Mundy v. Joliffe 105 Munn V. Illinois 307,532 538, 539 Munro v. Butt 473, 477 Munsell v. Temple 519 Munsey v. Butterfield 319 Murdfeldt v. Railroad Co 672 Murdock v. Einney 508 Murdock v. Jones 646 S2S TABLE OF CASES. Sec. Murdock v. Railroad Co 293 Murdock v. Walker 334,336 Murkley v. Whitney 103 Murphy v. Bank 380 Murphy v. Reed 267 Murphy v. San Luis Obispo.. 278 Murphy v. State 530 Murphy v. Weil 368 Murray v. Bond 198 Murray v. FlaveTl 360 Murray v. Lardner 512 Murray v. Lylburn 608 Murray v. Marshall 585 Murray v. Wakefield 286 Murrell v. Whiting 687 Muser v. Express Co 289 Musselman v. Stover 91 Mustard v. Wohlford 26, 27 61, 64, 69, 71 Mutual Ben. L. Ins. Co. v. Davies 20 Mutual Ins. Co. v. Cohen 401 404, 420 Mutual L. Ins. Co. v. Allen 267 Mutual L. Ins. Co. v. Hunt . 14, 22 Mutual Life Ins. Co. v. New i;ork 456 Mutual Life Ins. Co. v. Terry 19 Mutual L. Ins. Co. v. Walden. . 19 Mutual Sav. Inst. v. Enslin . . . 449 Muzzy V. Shattuck 584 Meyer v. Estes 649 Myer v. Cole 485 Myers v. Bank 428 Myers v. Gross 667 Myers v. Knabe 22 Myers v. Munson 85 Myers v. Sanders 61 Myers v. Smith 4b5 Mygatt V. Tarbell 701 Mynard v. Railroad Co 288 Myrick v. Dame 377, 381 Nace V. Boyer 14 Mash V. Jewett 67 See. Nash V. Page 538 Nash V. Skinner 368 Nash V. Town 599 Nashville Trust Co. v. Bank.. 506 Natches Build. & Loan Asso. V. Shields 219 Nat. Cordage Co. v. Sims 87 National Bank v. Bruhn 232 National Bank v. Danforth... 229 National Bank v. Fink... 283, 517 National Bank v. Matthews.. 175 National Bank v. Moore 14 National Bank v. Morris 402 National Bank v. Tappan .... 428 National Bank v. Whitney. . . . 175 National Ben. Co. v. Hospital Co 312, 314 National B. & L. Asso. v. Bra- han 417 National Exchange Bank v. McLoon . .52i, 522, 524,526 Nat. Fire Ins. Co. v. Rowe 80 National Harrow Co. v. Quick 320 National Lead Co. v. Paint Store 323 National Mut. Build. & L. Asso. V. Ashworth 417, 419 National News Tel. Co. v. Western Union Tel. Co 339 National Protection Asso. v. Cummins 335 National Security Bank v. Cushman 503 National Trust Co. v. Gleason 446 495 National Union v. Marlow .... 404 Neal V. Berry 51 Neal V. Hines 312 Neal V. Saunderson 615 Neate v. Harding 487 Nebraska Tel. Co. v. State 298 Meeker v. Harvey 348 Meeker v. Koehn 53 Needles v. Burk 452 Needles v. Needles 518 829 TABLE OF CASES. Sec. NeflF V. Landis 69 Neff V. Wooding 427 Neil V. Bank 417 Nelson V. Boynton 123, 125 127, 132 Nelson v. Imp. Co 480 Nelson v. Moose 687 Nelson v. Plimpton, etc. Co. . . . 606 Nelson v. State 188 Nerot V. Wallace 568 Nesbit V. Works 125 Nester v. Brewing Co. 320, 321, 331 Neuman v. Schroeder 124 Neustadt v. Hall 281 New Albany, etc. Co. v. Lewis. 423 New Albany, etc. R. R. Co. v. McCormick 302 Newark Sav. Inst. v. Forman.. 560 Newberry v. Wall 83 New Brunswick Steamboat Co. V. Tiers 616 Newburgh, etc. Turnpike Co. V. Welter 534 Newbury v. Armstrong 96 Newby v. Hill 508 Newcomb v. Clark 89, 94 Newcomb v. Ins. Co 474 Newcomb v. Raynor 375 Newcome v. Davenport 456 Newell V. Banl< 208, 232 Newell V. Higgins. . . 171, 700, 701 Newell V. Meyendorf 312 New England, etc. Co. v. Spit- ler 12 New England, etc. Co. v. Wor- sted Co 97, 148 New England Express Co. v. Railroad Co 306 New England Mortg. Co. v. Baxley 228 Islew England Mortg. Co. v. Gay 228, 239 New England Mortg. Co. v. McLaughlin 399, 420 Newhall v. Railroad Co 510 Sec. Newhall v. Wyatt 504 New Hampshire E. Ins. Co. v. Noyes 46 New Home L. Asso. v. Hagler. 19 New Jersey Steam Nav. Co. v. Bank 410 Newman v. Kershaw 240, 241 Newman v. Morris 139 Newman v. Nellis 80, 100, 103 Newman v. Reagan 618 Newman v. Sheriff 398 Newman v. Supervisors 456 Newman v. Telegr. Co 693 Newport v. Saunders 423 New Orleans, etc. R. R. Co. v. Turcan 457, 483 New Orleans Gas Co. v. Louis- ville Light Co 303, 547, 550 New Orleans Water Works Co. V. Sugar Refining Co 531 New South Water Co. v. Vvythes 676 Newton v. Bronson 100 Newton v. Ins. Co 17 Newton Manuf. Co. v. White . . 464 Newton v. Pence 391 JNewton v. Rowse 588 New York Cent. R. R. v. Lock- wood 288, 295, 587 Mew York and Erie R. R. Co. V. Winter 292 New York, etc. Ins. Co. v. Aitkins 419 New York, etc. R. R, Co. v. Bennett 293 Mew York, etc. R. R. Co. v. New York 549 New York, etc. R. R. Co. v. Winans 303 Mew York ex rel. Pennsylvania R. R. Co. V. Knight 182 New York, etc. Tel. Co. v. Dry- burg 297 Mew York Life Ins. Co. v. Rosenheim 266 830 TABLE OF CASES. Sec. Niagara Fire Ins. Co. v. Greene 134 Nibbe v. Brauhn 6G4 Nibert v. Baghurst. . . 104, 183, 192 Niblo V. Biusse 659 Nicewander v. Nicewander .... 5 Nicholas v. Kershear 7 Nicholas v. Railroad Co 288 Nichols V. Allen 128 Nichols V. Johnson 88 Nichols V. Fearson 212 Nichols V. Mantyn 618 Nichols V. Marsland 580 Nichols V. Nowling 394, 437 Nichols V. Railroad Co 295 Nichols V. Vinson 483 Nicholson v. Bower 152 Nicholson v. Railroad Co 325 Nicholson v. Spencer 41, 50 Nicholson v. Wilborn 41 Nickerson v. Howard 519 Nickerson v. Hydraulic Co. . . . 349 Nickerson v. Spindell 483 Nickles v. Asso 240 Niell V. Morley 25, 472 Niemeyer v. Wright 178 Nightingale v. Withington. . . 27 47, 470 Niland v. Murphy 80 Nimick v. Ins. Co 18 Niver v. Best 274 Noble V. Adams 593 Noble V. James 640 Noel V. Karper 8 Noland v. Whitney 643 Nolte V. Libbert ..66,355 Norcross v. Norcross 585 Norden v. Jones. .464, 487, 489, 490 Nordenfelt v. Maxim Norden- felt Guns and Ammunition Co 314 Nordholt v. Nordholt 30 Nordyke v. Kehlor 568 Norfolk, etc. R. R. Co. v. Mar- shall 582 Sec. Norman v. Phillips 152 Norris v. Railroad Co 615 Norris v. School Dist 640,666 Norris v. Sowles 402 North V. Forest 144 North V. Mendel 85, 91 North V. Nichols 442 North V. Wakefield 3/8 Northern Pac. R. R. Co. v. Adams 295 Northern Pac. R. R. Co. v. Pausen 292 Northern Securities Co. v. United States 324 Northern Trust Co. v. Markell 674 Northhampton v. Elwell 363 Northrop v. Graves 453 Northrup v. Phillips 330 Northwestern Ins. Co. v. Blankenship 22 Northwestern Mut. L. Ins. Co. V. Hazelett 20 Norton v. Blinn 321, 330 Norton v. Faucher 665 Norton v. Highleyman 452 Norton v. Marden 450 Norton v. Paxton 5 Norwegian Plow Co. v. Haw- thorn 156 Norwood V. Faulkner 210 Noyes v. Chapman Drake Co.. 700 Noyes v. Humphreys 121 Noyes v. Loring 464 Noyes v. Spaulding 255 Nugent V. Smith 615 Nugent V. Teachout 479 Nugent V. Wolfe 96, 129 Nunez v. Morgan 114 Nye V. Grand Lodge 267,268 Oakdale Manuf. Co. v. Garst. . 312 314, 322 Oakes v. Water Co 304 Oakley v. Aspinwall 370 Oakley v. Morton 570 831 TABLE OF CARES. See. Gates V. Buckwith 631 Gates V. Hudson 497 Gbear v. Bank 638 G'Brien v. Goslin 55 G'Brien v. Greenbaum 172 G'Brien v. G'Brien 627 G'Brien v. Prietenbach 274 G'Brien v. Society 690 G'Brien v. Vail 585 G'Brien v. Young 563 G'Bryan v. Fitzgerald 205 G'Conley v. Natches 445 G'Connell v. Lewiston 191 G'Conner v. State 200 G'Connor v. Tyrrell 671 G'Dea v. Winona 655 G'Dell V. Rogers 59 Gden v. Elliott 430 Gdom V. Mortg. Co 417 Gdom V. Riddick 24 G'Donnell v. Leaman 97 O'Donnell v. Sweeney 178, 202 G'Fallon v. Boismenn 445 Gffutt V. Flagg 402 Ggden v. Fossick 677 Ggden v. Gibbons 534 Ggden v. Maxwell 452 Ggden v. Peters 170 Ggden v. Sanders 555 G'Grady v. G'Grady 108 Ggsbury v. Ggsbury 106 Ghio V. Frank 224 Ohio Ins. Co. v. Ross 508 G'Kelly v. Williams 555 Gld Colony R. R. Co. v. Evans 98 Glive V. Glive 446 Gliver v. Gilmore 312 Gliver v. Hunting 92 Gliver v. Ins. Co 98 Oliver V. McClellan 69 Gliver v. Shoemaker 221 Glmstead v. Beale 474, 666 Olmstead v. Burke 697 Glmstead v. iveyes 267 See. Olmsted v. Hotailing 503 Omaha Consolidated Vinegar Co. v. Burns 655 Omaha, etc. Co. v. Tabor 492 Omaha Loan and Trust Co. v. Hanson 206 Omohundro v. Gmohundro. . . . 641 O'Neal V. Board 357 O'Neal V. King 644 O'Neil V. Behanna 336 O'Neil V. Cram 91 O'Neil V. Iron Co 300 O'Neil V. Mining Co 146 O'Neill V. Sinclair 198 Ontario Salt Co. v. Salt Co 322 Oppenheim v. Water bury 91 Oppenheimer v. Express Co.. 289 Orange County Bank v. Brown 289 Orcutt V. Nelson. 340, 409, 457, 478 Organ v. Stewart 81 O'Regan v. Cunard, etc. Co.. 410 Oregon Steam Nav. Co. v. Winsor 303, 308, 309 310, 312, 313, 316 Orendorff v. Express Co 288 Ormerod v. Dearman 284, 286 O'Rourke v. G'Rourke 412 Orr V. Commission Co 698 Grr v. Ins. Co 345 Orr V. Meek 200 Ortloff V. Klitzke 145 Ortt V. Railroad Co 290 Gsborn v. Guy's Hospital 465 Osborn v. Phelps 88, 91 Osborne v. Baker 87, 94 Osborne v. Bank 240 Osborne v. Ins. Co 404 Osborne v. Kimball 137 Osborne v. Lawrence 641 Osborne v. Williams 330 Oscanyan v. Arms Co 282, 284 285, 408 Osgood V. Bender 254,398 Osgood v. Groning 569, 573 RP,2 TABLE OF CASES. Sec. O'Shea v. Lead Co 171, 172 Oshkosh Water Works Co. v. Oshkosh 560, 565 Osier v. Hobbs 425 O'Sullivan v. Overton 87 Othemway v. Zekind 198 Otis V. Gregory 403 Otis V. Railroad Co 300 Otis Steel Co. v. Local Union. . 336 Otto V. Doty 8 Otto V, Durege 212 Outhouse V. Allen 463 Overton v. Banister 67 Owen V. Long 27, 52 Owen V. Partridge 340 Owens V. Railroad Co 300 Oxendale v. W'etherell 478 Oxford V. Columbia 628 Oxley V. Tryon 27 Pacific Express Co. v. Black.. 693 Pacific Express Co. v. Wallace. 288 289 Pacific Factor Co. v. Adler 320 Pacific Guano Co. v. Mullen . . 202 Pacific R. R. Co. v. Seeley 302 Packard v. Taylor 582 Packer v. Benton 125 Packer v. Steward 81 Paddock v. Stout 664 Padniore v. Gunning 466 Paducah Lum. Co. v. Water Co. 349 Pangburn v. Westlake 173 Pa. Railroad Co. v. Bray 293 Paine v. Lester 406 Paine v. Hutchinson •. . . 672 Paine v. McGinchey 464 Paine v. Mellor 672 Palm v. Railroad Co 473 Palmer v. Bates 283,517 Palmer v. Breen 641 Palmer v. Railroad Co 617 Palmer v. State 542 Palmer v. Stebbins 303 Palmer v. Stephens 89 See. Palmer's Case 119 Paola Gas Co. v. Glass Co 697 Paradine v. Jane 573 Parcell v. McComber 474 Paris V. Strong 134 Parish v. United States 695 Parish v. Webster 330 Parish v. Wilson 119 Park V. Druggists' Asso 324 Parker v. Bricklayers' Union.. 335 Parker v. Cousins 208 Parker v. Parker 84 Parker v. Piatt 640, 651 Parker v. Railway Co 452, 497 Parker v. Steed 477 Parker v. Syracuse 524 Parker v. Taintor 480 Parkhurst v. Van Cortland .... 86 Parmalee v. Wilks 188 Parmelee v. Adolph 597 Parmelee v. Lawrence 378 Paquin v. State Board 200 Parr v. Brady 403 Parsell v. Stryker 466, 667 Parsons v. Babcock 234 Parsons v. Hill 66 Parsons v. Loucks 146 Parsons v. Monteath 615 Partee v. Silliman 398, 419 Parton v. Crofts 98 Pass V. Grenada County 452 Pass V. Security Co 228 Passaic Print Works v. Dry Goods Co 315 Passenger v. Thorburn 685 Passmore v. Telegraph Co.... 297 Patchin v. Cromack 26, 27 Pate V. Wright 192 Paterson v. Paterson 465 ■ Pateshall v. Tranter 612 Patnote v. Sanders 4/4 Patrick v. Railroad Co... 597, 621 Pattee v. Greely 183, 195, 196 Patten v. Hicks 108 Patterson v. Birdsall 235 833 TABLE OF CASES. See. Patterson v. Boehm 171, 701 Patterson v. Caldwin 520 Patterson v. Kentucky 547 Patterson v. Lawrence 67 Patterson v. Lippincott 66 Patterson v. Manuf. Co 621 Patterson v. Martz 625 Patterson's Appeal 635 Pattison v. Judd 640 Paul V. Grimm 445 Paul V. Smith 44 Pawelski v. Hargreave 146 Pawlet V. Sandgate 444 Pawley v. Turnbull 646 Paxton V. Newton 668,677 Payne v. Mayor 515 Payne v. Newcomb 228 Payne v. Railroad Co 343 Payne v. Western, etc. Co.... 315 Peabody v. Kendall 7 Peabody v. Norfolk 318,677 Peabody v. Railroad Co 293 Peabody v. Speyers 255 Peacock v. Bmder 53, 54 Peacock v. Cummings 622 Peacock v. Rhodes 512 Pearce v. Brooks. 161, 104, 274, 409 Pearce v. Foot 249, 251, 253 Pearce v. Rice 249 Pearl v. McDowell. . 11, 12, 22, 471 Pearsall v. Kingsland 237 Pearson v. Carlton 37 Pearson v. Cox 9 Pearson v. Distilling Co 411 Pearson v. Skelton 437 Pease v. Herst 377 Peck V. Briggs 447 Peck V. Burr 203 Peck V. Ellis 437 Peck V, Mayo 241 Peck V. Randall 629 Peck V. Stanfield 105 Peck V. Vandemark 91 Peebles v. Gay 388 Peele v. Northcote 87 Sec, Peet V. Hatcher 413 Peevey v. Haughton 85 Peik V. Railroad Co. .288, 295, 539 Pelletier v. Courture 60 Peltz V. Eichele 312 Pemberton Build. L. Asso. v. Adams 67, 70 Pembroke v. Thorpe 668 Pence v. Langdon 597 Pendenhaur v. Ins. Co 20 Penfold V. Ins. Co 20 Peninsular, etc. Co. v. Shand.. 240 Penn v. Bornman 173, 176, 178 Penn v. Bowman 196 Penn v. Smith 698 Pennell v. Detfell 502 Penngar v. State 178, 400 Penniman's Case 557 Pennsylvania Co. v. Fairchild. 421 Pennsylvania Railroad Co. v. Connell 294 Pennsylvania Railroad Co. v. Henderson 288 Pennsylvania R. R. Co. v. Len- hart 292 Pennsylvania R. R. Co. v. Miller 541 Penn Mut. L. Ins. Co. v. Trust Co 404, 420 Pennypacker v. Jones 697 Penrose v. Canal Co 560 Pensacola, etc. R. . Co. v. Brax- ton 450 Peonage Cases 174 People v. Adams 272 People V. Arendt 200 People V. Armstrong 542 People V. Barondess 347 People V. Bartlett 568 People V. Booth 254 People V. Budd 538 People V. Buffalo Fish Co 549 People V. Buttling 188 People V. Campbell 528 People V. Cipperly 542 834 TABLE OF CASES. Sec. People V. Coler 2, 4, 549 feople V. Comptroller 426 People V. Dayton 283 People V. Dyeker 270 People V. Eastern 567 People V. Fallon 263 People V. Folks i People V. Foundry Co 321 People V. Gas Light and Coke Co 307, 535 People V. Gas Trust Co 320, 323 People V. Gillson 4, 271 People V. Girard 542, 543 People V. Gordon 629 People V. Grout 4 People V. Guthrie 538 People V. Havnor 188 People V. Hawkins 549 People V. Holden 351 People V. Hughes 347 People V. Ingersoll 129 People V. Ins. Co 576 People V. Live Stock Exchange 301 People V. Manning 475, 589 People V. Milk Exchange . . 320, 323 People V. Moore3...30, 33, 35, 470 People V. Mullin 30 People V. Omaha 517 People V. Orange County Con- struction Co 1, 4 People V. Otis 540 People V. Piatt 632 People . Railroad Co 302 People V. Russell 551 People V. Sheldon 320,323 People V. Speir •. . 445 People V. Sugar Refining Co. . 323 324 People V. Supervisors 667 People V. Trust Co 304 People V. Warden 173 People V. West 542 People V. White 629 People V. Wilzig 336 People's Bank v. Jackson. 215, 237 Seo. People's Gas Light and Coke Co. V. Chicago 535 People's Pure Ice Co. v. Trum- bull 135 Peoria Co. v. Gordon 629 Pepper v. Philadelphia 666 Perce v. Hallett 530 Pereaux v. Simon 80 Perin v. Parker 431 Perlman v. Satorius 398 Perkins v. Barstovr 634 Perkins v. Butler County. .515, 519 Perkins v. Catlin 128 Parkins v. Clay 137 Perkins v. Cummings 164 Perkins v. Hadsell 98 Perkins v. Hart 428 Perkins v. Hasbrouck 460 Perkins v. Littlefield 124 Perkins v. Pendleton. .335, 337, 341 Perkins v. Railroad Co 295 Perkins v. Watkins 196 Perrault v. Gauthier 334 Perrin v. Canal Co 534 Perrin v. Wilson 41, 45 Perry v. Ins. Co 404 Perry v. Pearson 6, 8 Person v. Chase 27, 66 Pervear v. Commonwealth .... 547 Peter v. Westborough 134 Peters v. Davenport 279,283 Peters v. Davis 380 Peters v. Fleming 39. 50, 468 Peters v. Grim 248, 252 Peters v. Johnson 364 Peters v. Opie 606 Peters v. Railroad Co 497 Peters v. Ryland 303 Peterson v. Christensen 274 Peterson v. Gurren 249 Peterson v. Laik 58 Peterson v. Neazer 474 Petrie v. Berry 377 Petrie v. Williams 58 Petrow V. Wiseman 51 836 TABLE OF CASES. Sec. Peugh V. Porter 524 Pevey v. Jones 445 Pew V. Bank 462 Peyser v. Mayer 499 Peyson v. Conniff 125 Pfeuninger v. Kokesch 634 Phadenhaur v. Ins. Co 19 Phelps V. Holderness 259 Phelps V. Montgomery 216 236, 239 Phelps V. Nowlin 345 Phelps V. Rowe 131 Phelps V. Stillings 91 Phelps V. Worcester 43, 46, 72 75, 468 Philadelphia, etc R. R. Co. v. Anderson 583 Philadelphia v. Kelly 216 Philadelphia Ball Club v. Lajoie 677 Philadelphia, etc. K. R. Co. v. Howard 696 Philadelphia, etc. R. R. Co. v. Lehman 188 Phila. W. and B. Railroad Co. V. Rice 293 Philadelphia, etc. R. R. Co. v. Tow Boat Co 188 Philadelphia's Appeal. 521, 523, 526 Philbrook v. Belknap 480 Philip V. Gallant 640 Phillimore v. Barry 89 Phillip V. Howell 622 Phillips V. Adams 91 Phillips V. Banking Co 292 Phillips V. Belden 427 Phillips V. Bislolli 151 Phillips V. Clagett 381 Phillips V. Edsall 521,524 Phillips V. Green G5, 71 Phillips V. Innis 188 Phillips V. Ins. Co 19 Phillips V. Lloyd 42, 46 Phillips V. Morrison 641 Phillips V. Ocmulgee Mills.... 156 Sec. Phillips V. Ogle 237 Phillips V. Roberts 228 Phillips V. Stevens 573 Phillips V. Swank 92 Phillips V. Thompson 104 Philpot V. Bingham 28 Philpot V. Briant 119 Philpotts V. Evans 604 Phinney v. Baldwin . . 224, 258, 408 Phinney v. Phinney 562 Phippen V. Stickney. . 165, 168, 169 Phoenix Bank v. Risley 428 Phoenix Ins. Co. v. Transp. Co. 410 Physio-Med. College v. Wilkin- son 14 Piatt V. Oliver 167 Pickard v. Car Co 303 Pickenny v. Railroad Co.. 204, 701 Pickering v. Cease 249, 255 Pickering v. Gunning 43 Pickering v. Railway Co 508 Pickersgill v. Lahens 374 Pier V. George 518 Pierce v. Cenultry 485 Pierce v. Chamberlain 15 Pierce v. Estate 102 Pierce v. Fuller 303, 312 Pierce v. Ins. Co 20 Pierce v. Paine 82, 110, 137 Pierce v. Railroad Co 536, 537 Pierce v. Woodward 316 Pieronnet v. Lull 254 Pierrepont v. Barnard 648 Pike V. Brown 353 Pike V. King 183, 195 Pike V. Warren 634 Pilkington v. Scott 317 Pinches v. Church. . .473, 475, 477 6^0, 666 Pinkstone v. Taliaferro 389 Pioneer Saving, etc. Co. v. Can- non 417 Piper v. Foster 137 Piper v. Hoards 631 Pipp v. Reynokls 356 836 TABLE OF CASES. Sec. Pit V. Cholmondeley 429 Pitcher v. Lowe 85 Pitkin V. Noyes 146, 694 Pitt V. Gentle 385 Pittsburg Carbon Co. v. Mc- Millin 320 Pittsburg, etc. K. K. Co. v. Caldwell 295 Pittsburg, etc. R. R. Co. v. Hallowell 615 Pittsburg, etc. R. R. Co. v. Hogen 615 Pittsburg, etc. Railroad Co. v. Moore 288 Pittsburg, etc. R. R. Co. v. Rus9 292 Pixler V. Nichols 474 Pixley V. Boynton 255 Place V. Langworthy 170 Plaisted v. Palmer 192 Planche v. Colburn 482,688 Plant V. Wood 336 Planters Bank v. Sharp 560 Plaster v. Plaster 470 Plate V. Durst 460 Piatt V. Brand 594 Piatt V. Colvin 367 Pleasants v. Ross 642 Pledger v. Garrison 82 Plimpton V. Goodeil 329 Plumley v. Massachusetts.... 550 Plummer v. Buckman 480, 599 Podmore v. Guaning 667 Polen V. Palmer 208,226 Pollard V. Photograph Co 340 Pollock V. Accident Asso. ...... 20 Poison V. Stewart 101, 397, 403 Poncher v. Railroad Co 295 Pond V. Williams 379 Pool V. Allen 432 Pool V. Boston 281 Poole V. Weggiiis 330 Pooler V. Christman 7 Poor V. Woodward 599 See. Pope V. Hanke 251, 254, 257 258, 413 Pope V. Linn 192 Pope V. Manuf. Co 641 Pope V. Marsh:ill 23i Pope V. Nickerson 420 Pope V. Terre Haute, etc. Co.. 404 Popp V. Swanke 84, 114 Poidage V. Cole 153, 579 Portarlington v. Soulby 258 Porter v. Banking Co 237 Porter v. Bille 119 Porter v. Day 262, 263, 265 Porter v. Gorman 319 Porter v. Water Co 667 Porter v. Woods 640 Port Clinton, etc. R. R. Co. v. Railroad Co 668, 676 Port Jervis v. Bank 438 Post V. Bank 403 Postal Telegraph Co. v. Adams 552 Postal Telegraph Co. v. Charlestown 552 Postal Tel. Co. v. Lathrop 297 Potter V. Carpenter 457 Potter V. Jacobs 105 Potter V. Jones 5 Potter V. McCay 368 Poulton V. Lat^imore 612 Poussard v. Spiers 589 Powder River Live Stock Co. V. Lamb 133, 145 Powell V. Commonwealth . . 542, 543 Powell V. Graham 485 Powell V. Howard 651 Powell V. Hunt 237 Powell V. Kees 464 Powell V. Koehler 633 Powell V. Pennsylvania. . .542, 550 Powell V. Powell 13 Powell V. Railroad Co 617 Powell V. Smith 493 Powell V. St. Croix County 456 Powell V. Supervisors 449 837 TABLE OF CASES. Soe. Powell V. Waters 212 Power V. Athens 534 Power V. Rankin 128 Powers V. Skinner 284, 286 Powers V. Stout 319 Powers V. Tilley 492 Pownal V. Ferrand 434, 435 Pracht V. Daniels 443 Prather v. Harlan 193 Pratt V. Adams 24Q Pratt V. Butcher 99 Pratt V. Huggins 629 Pratt V. Humphrey 118, 124 Pratt V. Miller 146 Pratt V. Philbrook 600 Pratt V. Railroad Co 288, 537 Pray v. Burbank 178 Pray v. Mitchell 144 Preachers' Aid Soc. v. England 35& Prebble v. Baldwin 124 Prentice v. Steele 405 Prentiss v. Ledyard 619 Presbyterian Church v. Paint Co 655 Prescott V. Locke 146 Prescott V. Norris 67 Preston v. Boston ... 452, 455, 456 496, 499 Preston v. Smith 254 Price V. Barker 378 Price V. Berrington 22, 25 Price V. Campbell 233 Price V. Easton ' 360 Price V. Estill 452 Price V. Furnam 62, 64, 71 Price V. Hartshorn 580 Price V. Haynes 170 Price V. Hewett 70 Price V. Jennings 66 Price V. Lien 102 Price V. Mayor 668 Price V. McKay 92 Price V. People 321 Price V. Pepper 572 See. Price V. Railroad Co 382, 383 Price V. Sanders 30, 40, 41, 42 44, 47, 48, 468, 469 Priestley v. Railroad Co 683 Prime v. Koehler 128 Primley v. Shirk 214 Primrose v. Telegraph Co. 296, 297 Prince v. Kuhler 663 Princeton, etc. Turnpike Co. v. Gulick 442 Printing, etc. Registering Co. V. Sampson . . . . 1, 274, 3;!4, 329 Pritchard v. Martin 602, 605 Pritchard v. Norton 116, 240 400, 419, 420 Pritchet v. Badger 620 Proctor V. Sears 54 Proprietors v. Taylor 423 Proprietors v. Wheeley 534 Prospect Park, etc. R. R. Co. V. Railroad Co 672, 676 Prouty V. Edgar 30, 69 Prouty V. Wiley 59 Providence Bank v. Billings. . 534 Providence County Bank v. Benson 508 Provident Institution v. Massa- chusetts 533 Pruitt V. Pruitt 355 Public Schools v. Heath 526 Publishing Co. v. Smyth 339 Puchet V. Alexander 176, 200 Puckett V. Bates 121 Puckett V. Reed 513, 514 Pugh V. Barnes 352 Pugh V. Jenkins 244 Pugh V. Stringfield 377 Pulf er V. Little 602 Pullman Car Co. v. Pennsyl- vania 552 Purcell V. Daly 509 Puterbaugh v. Farrell 239 Putnam v. Field 357 Putnam v. Hill 66 838 TABLE OF CASES. See. Putnam v. Putnam 178 Putnam v, Ritchie 39, 46 Putnam Machine Co. v. Cann. . 124 Putney v. Farnham 353 Pyle V. Cravens 28 Pyne v. Wood 41, 44 Quarles v. State 186 Queen City Furniture Co. v. Crawford 463 Quick V. Corliss 636,637 Quick V. Stiiyvesant 588 Quimby v. Railroad Co 295 Quincy v. Tilton 593 Quinn v. Champagne 92 Quinn v. Latham 334,335 Raabe v. Squire 662, 663 Radcliff V. Poundstone 122 Raesner v. Hermann 299 Raflferty v. Lougee 97 Ragan v. Aiken. . 325 Raggan v. Green 14 Ragio V. State 540 Railroad Co. v. Bartram 293 Railroad Co. v. Bishop. . .288, 295 Railroad Co. v. Central Lum. Co 643, 645 Railroad Co. v. Curran..288, 295 Railroad Co. v. Derny 295 Railroad Co. v. Fitzgerald 293 Railroad Co. v. Fix 293 Railroad Co. v. Henderson.... 295 Railroad Co. v. Henry 644 Railroad Co. v. Hopkins. .288, 365 Railroad Co. v. Howard 610 Railroad Co. v. Husen 547, 549 Railroad Co. v. Hutchins 492 Railroad Co. v. Maine 541 Railroad Co. v. March. 642, 643, 645 Railroad Co. v. Martino 293 Railroad Co. v. McClelland... 537 Railroad Co. v. McClure 531 Railroad Co. v. McConnell 173 Railroad Co. v. Mieehe 295 Sec. Railroad Co. v. Mundy 295 Railroad Co. v. Navigation. . . . 293 Railroad Co. v. Perkins. .643, 644 Railroad Co. v. Price 642 643, 645 Railroad Co. v. Railroad Co.. 538 Railroad Co. v. Reed 582 Railroad Co. v. Reeves 616 Railroad Co. v. Sayers 288 Railroad Co. v. Smith 641 Railroad Co. v. Spangler 29^ Railroad Co. v. Stevens. . .288, 295 Railroad Co. v. Stockton 351 Railroad Co. v. Tygard 351 Railroad Co. v. Vanatta 293 Railroad Co. v. Wynn 288 Raisin v. Clark 451 Rake v. Pope S2 Rallman v. Express Co 288 Ralston v. Wood 389, 390 Ramey v. Capps 192 Ramsay v. Clark 212 Ramsdell v. Edgarton 171 Ramsey v. People 2, 540 Rand v. Mather 204 Rand v. Webber 448 Randall v. Brigham 533 Randall v. Latham 668 Randall v. Rich 441 Randall v. Sweet 48 Randall v. Turner 82 Randle v. State 270 Random v. Tobey 637 Ranken v. Alfaro 526 Rankin v. Collins 392 Rann v. Hughes 119 Rannells v. Gerner 12 Ranney v. Higby 150 Ransome v. Railway Co 325 Rappleye v. Seeder Co 519 Rather v. Bank 177 Rau V. Boyle 287 Raub V. Van Horn 322 Rauft V. Reimers 319 Raus V. Yates 371 839 TABLE OF CASES. See. Rawson v. Clirk 665 Eawson v. Copland 353 Rawson v. Railro d Co 293 Rawstorne v. Gaudell 381 Rawstone v. Parr 374 Ray V. Cattell 193 Ray V. Haines 62 Ray V. Mackin 165 Ray V. Thompson 613 Ray V. Tubbs 34 Raymond v. Bearnard 598 Raymond v. Leavitt 250,321 Raymond v. Lowe 486 Raymond v. Vaughn 1,3 Raynor v. Drew 133 Rea V. Bishop 23 Rea V. Somerset 584 Read v. Bank 560 Read v. Brewer 401 Read v. Legard 11, 468 Read v. Nash 124 Read v. Railroad Co r/8o Read v. Spaulding 583 Reade v. Lamb 100, 1 !'.> Reader v. Kingham 123 Reading v. Wilson 72, 73, 74 Ready v. Huebner 237 Reagan v. Trust Co 539 Reando v. Misp.'ay 11, 12 Reardon v. Searcy 561 Reave v. Boycott 26 Rebman v. Land Water Co... 479 Reeht v. Kelly 51."> Red Bank ISIut. Build. & Loan Asso. V, Patterson 219 Redden v. Baker 10 Redelaheimer v. Miller 365 Redford v. Clarke 630 Redheffer v. Leathe 519 Rtdington v. Robeits 149 Redpath v. Telegraph Co 297 Reed v. Gallagher 640 Reed v. Golden 595 Reed v. Lane 27 Reed v. McConnell 481 See. Reed v. Nash 122 Reed v. Tel. Co 421, 692, 693 Reeder v. Sayre 138 Rees V. Berringtoii 393 Reeve v. Association 219 Reeves v. Butcher 192 Refining Co. v. McMahon 9 Reg V. Aspinall 162 Reg V. Hudson 162 Regan v. Baldwin 501 Regan v. Steamship Co 305 Reger v. O'Neal 215 Keggan v. Green 22 Rehill V. McTague 427,429 Reichenbach v. Sage 057, 661 Reid V. Friendly Society of Operative Stonemasons .... 335 Reid V. Kenworthy 83 Reid v. Scituate 473 Reid V. Wilson 368 Reiff V. Bakken 243 Reinhard v. Columbus 129 Relle V. Teleg. Co 693 Reneick v. Sandford 151 Renihan v. Wright 485 Rentch v. Long 146 Repetti v. Maisak 90, 92 Republic Iron, etc. Co. v. State 2 Resetter v. Waterman 96, 124 Reuss V. Picksley 98 Reus Glass Factory v. Reed. . 457 Revell V. Hussey 672 Rex V. Berenger 162, 163 Rex V. Brotherton 180 Rexford v. Smith 617 Reybold v. Parker 634> Reynall v. Sprye 330 Reynolds v. Bank 175 Reynolds v. Everett 347 Reynolds v. Kirk 83 Reynolds v. McCurry 63, 64 Keynolds v. Padgett 488, 489 Reynolds v. Sweetser 47, 476 Hhea v. White 330 Kheel v. Hicks 454 840 TABLE OF CASES. Sec. Ehoads v. Association 220 Rhodes v. Iowa 182 Rhodes v. Neal 286 Rhodes Furniture Co. v. Weedon 135 Ricards v. Ricards 195 Rice V. Boyer..41, 57, 58, 69, 70 Rice V. Gist 246 Rice V. Inskeep 373 Rice V. Manly 344, 346 Rice V. Shute 368, 370 Richards v. Allen 108 Richards v. Bank 241 Richards v. Green 669 Richards v. Heather. .368, 371, 380 Richards v. Seating Co 313 Richards v. Smith 508 Richards v. Vanaerpool 498 Richardson v. Brix 198 Richardson v. Buhl 320, 323 Richardson v. Cheneyworth . . . 683 Richardson v. Cook 560 Richardson v. Denver 456 Richardson v. Dorman 200 Richardson v. Draper 372, 374 Richardson v. Duncan. .. .497, 498 Richardson v. Green 98 Richardson v. Horn 600 Richardson v. Horton 374 Richardson v. Pate 59 Richardson v. Pierce 134 Richardson v. Robbins 122 Richardson v. Rountree 293 Richardson v. Shaw 572 Richardson v. Strong. .49, 471, 484 Richardson v. Williams 432 Richmond v. Moore 180 Richmond v. Toothaker 368 Richmond, etc. R. R. Co. v. Jones 299 Richmond, etc. R. R. Co. v. Tobacco Co 549 Richter v. Pappenhausen 374 Ricketts v. Jollift' 22, 23 Rickey v. Clark 449 Sec. Ricks V. Yates 602 Ridgeway v. Darwin 12 Ridgeway v. Ingram 85 Ridgway v. Ridgway 105 Ridgeway v. Wharton 85 Ridgway v. English 460 Riggan v. Green 9, 25 Riggs V. Tract Soc 8, 9 Riley v. Burroughs 403 Riley v. Carter 9, 21 Riley v. Ins. Co 20 Riley v. Jordan 205 Riley v. Mallory ;;8, 58, 63 Riley v. Sharp 278 Riley v. Williams 480 Rilling V. Thompson 229 Rindge v. Aid Soc 269 Rindge v. Baker 668 Ringer v. Holtzclaw 91 Ringle v. Railroad Co 300 Ripley v. Case 448 Ripley v. McCIure 604 Risley v. Bank 524, 526 Risley v. Brown 374 Ritchie V. Boynton 197 Ritchie v. People 1, 4, 344 Ritchie v. Smith 274 Rittenhouse v. Telegraph Co . . 297 Ritter v. Insurance Co 16, 19 Ritter v. Smith 267 Rivers v. Rivers 646, 667 Robards v. Brown 555, 562 Robbins v. Bacon 521 Robbins v. Cutler 27 Robbins v. Eaton 27, 65 Robbins v. Potter 461 Robbins v. Shelly Taxing Dist 552 Roberge v. Winne 103 Roberson v. Box Co 340 Roberts v. Adams 392 Roberts v. Barnes 184, 185 Roberts v. Carter 507 Roberts v. Cocke 555 Roberts v. Ins. Co 419 Roberts v. Norton 679 841 TABLE OF CASES. Koberts v. Rock Bottom Co 134 Roberts v. Wiggin 71 Robertson v. Deatherage. .388, 436 Robertson v. Frank 497 Robertson v. Lockie 15 Robertson v. Railroad Co 295 Robertson v. Smith 370 Robertson v. Van Cleave 564 Robinson v. Barrows 416 Robinson v. Bland 396, 420 Robinson v. Coulter 26 Robinson v. Davison. .475, 589, 659 Robinson v. Eastman 460 Robinson v. Green 164, 204 Robinon v. Harman 683 Robison v. Hornbaker 92 Robinson v. Hyer 682,698 Robinson v. Mandell 466 Robinson v. Maxcey 389 Robinson v. Queen 397 Robinson v. Raynor 481, 589 Robinson v. Smith 212, 387 Robinson v. Texas Pine Land Asso 315 Robinson v. Weeks 26, 27, 43 48, 62 Robinson v. Welly 440 Robson V. Calze 503 Robson V. Drummond. . . .457, 519 Robstelli v. Railroad Co 292 Rockford, etc. R. R. Co. v. Sage 463 Rock Island v. Mercer Coiinty. 129 Rockwell V. Bank 232 Rockwell V. Hubbell 558 Rodecker v. Littauer 212 Rodemacher v. Railroad Co. . . . 537 Rodgers v. Maw 464 Rodgers v. Railroad Co 583 Rodick V. Gandell 526 Roe V. Kiser 206 Roebling Sons Co. v. Fence Co. 594 Roehl V. Haumesser 99 Roehm v. Horst 594 Rogers v. Allen 555 Rogers V. Blackwell 9,22, 24 See. Rogers v. Buckingham 228 Rogers v. Gosnell 362 Rogers v. Greenbush 456 Rogers v. Hardware Co 128 Rogers v. Hillhouse 629 Rogers v. Palmer 503 Rogers v. Sanders 625 Rogers v. Steamboat Co 295 Rogers v. Union Stone Co. 356, 357 Rogers v. Van Nortwick. .625, 626 Rogers v. Walsh 571 Rogers v. Weaver 453 Rolland v. Hart 503 Roller V. Ott 312, 317 Rollins V. Marsh 73, 74 Rollins' Invest. Co. v. George. 674 Rome, etc. R. R. Co. v. Sullivan 290 Romero v. Newman 588 Rondeau v. Wyatt 139 Roodes V. Smithurst 629 Roodhouse v. Roodhouse 37 Root V. Railroad Co 290, 325 Roper V. Johnson 604 Rose V. Munford 217 Rose V. Park Bank 399 Rose V. Railroad Co.. 288, 293, 295 Rose V. Savory 427 Rose V. Truax 284 Rose V. Wallenburg 96 Rosenblatt v. Townsley 192 Ross V. Allen 92 Ross V. Milne 361 Ross V. Railroad Co 536 Ross V. Scott 492 Ross V. Welch 151 Rossiter v. Miller 89 Rothschild v. Mack 506 Rothwell V. Dean 665 Rottman v. Fix 122 Roundtree v. Baker 402,413 Roundy v. Thatcher 62 Rousillon V. Rousillon 309, 311 314, 408 Row V. Dawson 526 Rowan v. Hyatt 352 842 TABLE OF CASES. See. Rowland v. Bull 216 Rowley v. Stoddard 377, 379 Roxbury v. Railroad Co 541 Roycroft v. Tayntor 344 Rueker v. Cammeyer 87 Rucker v. Harrington 81 Ruckman v. Bergholz 175 Rudolf V, Winters 255 Ruggles V. Illinois 539 Ruggles V. People 538 Ruhe V. Buck 419 Rumsey v. Berry 249, 251, 255 Rundlett v. Weber 205 Runnells v. Bosquet 5 '5, 518 Ruple V. Bindley 515, 518 Rush V. Landt T 403 Rushing Reduction Co. v. Mil- liard 128 Rusk V. Fenton 22 Russell V. Allen 567 Russell V. Bell 464 Russell V. Burton 284 Russell V. Clarke 159 Russell V. Jackson 503 Russell V. Murdock 192 Russell V. Telegr. Co 693 Rutherford v. Mclvor 450 Rutland R. R. Co. v. Railroad Co 531 Rutledge v. Price Coimty 456 Ryalls V, Moody 664 Ryan v. Clanton 402 Ryan v. Dayton 474 Ryan v. Douglass County. ... 519 Ryan v. Growney 67 Ryan v. Lynch 460 Ryan v. Potwin 173 Ryan v. School Dist 201 Ryan v. Smith 44 Ryan v. United States 85 Ryde v. Curtis 96 Ryder v. Wombwell 40, 41 Rydon v. Walcott 599 Rylands v. Fletcher 584 Ryno V. Darby 192 Sec. Sabin v. National Union 20 Safe Co. V. Ward 351 Safety Deposit L. Ins. Co. v. Smith 425 Safford v. Wyckoff 505 Sage V. Wilcox 79 Sager v. Railroad Co 288 Said V. Stromberg 180, 412 Sale V. Lambert 89 Salentine v. Ins. Co 20 Salesbury v. Herchenroder . . . 583 Salinas v. Bennett 27, 60 Salladin v. Mitchell 506 Salmon Falls Manuf. Co. v. Goddard 85, 86, 89 Salt Co. V. Guthrie 320, 321 Salt Marsh v. Bank 212 Salter v. Howard 344 Sampson v. Shaw 255 Sampson v. Townshend 274 Samson v. Freedman 427 Samuel v. Marshall 8 Samuel v. Thomas 485 Samuels v. Oliver 250 San Antonia, etc. Co. v. Wilson 2 Sanborn v. Flagler 89, 90 Sanborn v. Goodhue 425 Sanborn v. Merrill 129 Sanborn v. Sanborn 97 Sanderlin v. Willis 698 Sanders v. Filly 363 Sanders v. Gillespie 123 Sanders v. Johnson 187 Sanders v. Rodway 677 Sanders v. Stuart 297 Sanderson v. Rating Co 668 Sandford v. Kane 228 Sandford v. Railroad Co 306 San Diego Gas Co. v. Frame . . 305 San Diego Water Works v. Flume 322 Sandren v. Railroad Co 464 Sands v. Potter 10 Sandwich Manuf. Co. v. Her- riott 368 843 TABLE OF CASES. Sec. Sanger v. Rothchild 269 Santa Clara, etc. Co. v. Hayes 320 Sapp V. Cobb 213 Sapsford v. Fletcher 431 Sargent v. Butts 192 Sarles v. Sharlow 133 Sartwell v. Horton 497 Satterlee v. Mattnewson 532 Saterlee v. United States 665 Saul V. Creditors 401 Saunders v. Saunders 363 Saurdsfeger v. State 386 Savage v. Gregg 524 Savage v. Lee 113 Savage v. Liehlyter 51 Saville v. Welch 446 Savings Bank v. Burnes 330 Savings Bank v. Ward 348 Sawyer v. Bank 462 Sawyer v. Davis 538 Sawyer v. Lufkin..ll, 12, 471, 472 Sawyer v. Smith 175, 204 Sawyer v. Ware 139, 146 Saxe V. Womack 214 Saxton V. McNair 703 Sayles v. Wellman 192 Say ward v. Gardner 91 Scales v. State 181, 248, 249 252, 255, 256 Scanlon v. Cable 9, 14, 22 Scarth v. Ins. Co 19, 20 Sceva V. True 11 Schafer v. Bank 128 Schatfer v. Lovsette 27 Schaps V. Lehner 22 Scheffer v. Ins. Co 17, 19, 20 Scheible v. Klein 474, 666 Schilling v. Black 386 bchilling V. Mullen 508 Schlee v. Guckenkeimer 254 Schloss V. Hewlett 283, 577 Schmertz v. Dwyer 398 Schmidt v. Glade 365 Schmidt v. Ittman 22 Schmidt v. Railroad Co 091 See. Schmidt v. Tliomas 145 Schmitheimer v. Eiseman .... 67 Sehmoling v. Thomlinson 339 340, 457 Schneider v. Schift'man 128 Schneider v. Turner 254 Schnell v. Chicago 67 Schofield v. Gaskill 388 Schofield v. Railroad Co 306 Scholefield v. Templer 503 School Dist. V. Dauchy 580, 587 School Trustees v. Bennett. 573, 587 Schoonover v. Vachou ....479, 627 Schreiner v. Orr 249 Schroeder v. Loeber 109 Schroeder v. Wanzor 106 Schrweppel v. Corning 500 Schuey v. Schaefer 106 Schuff V. Rawson 21 Schuler v. Israel 506 Schultz V. Culbertson 499 Schultz V. Ins. Co 19 Schultz V. Johnson 519 Schumacher v. Eley 398 Schuster v. Railroad Co 365 Schuyler v. Curtis 340 Schwab V. Pierro 108 Schwab V. Rigby 185 Schwartz v. Saunders 659 Schwenk v. Wyckoflf 283 Schwenk v. Wycks 517 Schwinger v. Hickok 448 Scioto Brick Co. v. Pond 571 Scofleld V. Gaskill 436 Scotland County v. Ewing .... 452 Scotland County v. Hill 399 Scott V. Brown 65, 163 Scott V. Buchanan 27, 32, 55 Scott V. Gilmore 204 Scott V. Godwin . 377 Scott V. Perlee 417 Scott V. Porter 37 Scott V. Safford 222 Scott V. White 128 Seoville v. Canfield 419 844 TABLE OF CASES. Sec. Scranton v. Stewart 26 Scribner v. Collar 451 Scruggs V. Driver 571 Scruggs V. Mort. Co 208 Scudder v. Bank 116, 124, 240 395, 419, 420 Scully V. Kirkpatrick.475, 589, 659 Scully V. Scully 458, 400 Seamons v. Knapp Co 404 Searcy v. Hunter 57, 61, 66 Searles v. Galbraith 8, 10 Searles v. Pipkin 11 Sears v. Smith 135 Sears v. Starbird 433 Seary v. Drake 106 Seattle v. Liberman 523 Seaver v. Phelps 9, 14, 22, 471 Seaver v. Young 635 Second Nat. Bank v. Grand Lodge 354, 356 Secret Service Co. v. Manuf. Co. 668 673 Seddon v. Rosenbaum 134, 137 Sedgwick v. Stanton 276, 284 Seeman v. Inman 87 Segeson v. Leaky 25 Seibert v. Lewis 555 Seigman v. Hoflacker 363, 364 Selby V. Jackson 25, 472 Selby V. Railroad Co 617 Selby V. Selby 97 Seldon v. Preston 580 Sellers v. Botsford 237 Selliot v. French 691 Semmes v. Ins. Co 576 Semnies v. Worthington 114 Seneca Nation v. Christy 531 Senescal v. Bolton 373 Sennett v. Shehan 480 Sergeant v. Stryker 445 Seton V. Slade 600 Severance v. Kimball 498 Sewell V. Eaton 149 Sewell V. Sewell 67 Sewing Machine Co. v. Barnard 22 Sec. Sext V. Geise 132 Seymour v. Delancey 667 Shaaber v. Bushong 131 Shaekell v. Rosier 164 Shafer v. Riley 508 Shaffer v. Mining Co.l, 2, 515, 541 Shafher v. State 31 Shakespeare v. Markham 466 Shane v. Smith 481 Shankel v. Moffat 274 Shannon v. Comstock 687 Shapley v. Abbott 276 Sharp V. Carroll 156 Sharp V. Robertson 66 Sharp V. Robinson 27 Shaver v. McCarthy 5 Shaver v. Railroad Co 300 Shaw V. Berry 585 Shaw V. Clark 249, 257, 413 Shaw V. Graves 457 Shaw V. Ins. Co 594 Shaw V. Lumber Co 145 Shaw V. Railroad Co 512 Shaw V. Pratt 379 Shaw V. Shaw 480 Shaw V. Spencer 358 Shaw V. Tompson 11 Shaw V. Woodcock 100 Shed V. Pierce 376 Shed V. Prince 379 Sheehy v. Mandeville 370 Sheehy v. Shinn 248, 253 Sheer v. Wright 659 Sheffield, etc. R. R. Co. v, Gor- don 643 Sheldon v. Hactun 240 Sheldon v. Railroad Co 293 Sheldon v. Williams 393 Shepard v. Gas Llight Co. 303, 307 Shepardson v. Cary 513 Slierbourne v. Shaw 88 Sherburne v. Fuller 108 Sherburne v. Hartland 29 Sherman v. Barnard 571 Sherman v. Blackman 212 846 TABLE OH OASES. See. Sherman v. Connor 699 Sherman v. Kreul 373 Sherman v. Smith 541 Sherry v. Perkins 334, 336 Sherwood v. Archer 234 Sherwood v. Stone 87, 128 Shields v. Land Co 532 Shields v. Ohio 541 Shirk V. Shultz 58, 60, 64 Shirley v. Shirley 98 Shipley v. Bunn 26, 57, 58 Shipley v. State 188 Shipman v. Bank 428 Shipton V. Casson 478 Shivers v. Newton 542 Shober, etc. Co. v. Kertney 309 Shoe Co. V. Saxey 336 Shoemaker v. Benedict . . . 384, 634 Shook V. Vanmeter 128 Short V. Blount 124 Short V. Stone 607 Shorter v. Smith 535 Shoulters v. Allen 14, 22 Shoup V. Wills 456 Showalter v. McDonell 80 Shrainka v. Schoringhausen . . . 322 Shrock V. Cowl 66 Shropshire v. Burns 27 Shubrick v. Adams 624 Shufelt V. Shufelt 237 Shuler v. Millsap 476 Shumate v. Farlow 134, 137 bhulz V. Johnson 475, 589, 590 Shurman v. Thompson 204 Shurtletf v. Millard 43 Shute V. Dorr 480 Sickles V. Flanagan 230 Sickles V. United States 591 Siedenbender v. Charles 178 Siefel V. Ins. Co 482 Siegel V. Drumm 229 Siegel V. Eaton 573,065 Siegrist v. Arnat 295 Siemens v. Siemens 93 Siler V. Gray 589, 590 Sill V. Wooswick 407 Silvernail v. Cole 571 Simmons Hardware Co. v. Mul- len 145 Simmons v. Telegr. Co 693 Simon v. Brown 348 Simons v. Almy 74 Simonton v. Bacon 7, 22 Simpson v. Bank 560 Simpson v. Bloss 162 Simpson v. Brown 351, 352 Simpson v. Castle 567 Simpson v. Harris 128 Simpson v. Nance 129 Simpson V. NichoUs 192 Simpson v. Robert 129 Simpson V. Vaughn 374 Sims V. Bond 359, 360 Sims V. Clark 382 Sims V. Everhardt 56, 67, 68 Sims V. Hutchins 101, 102, 480 Sims V. McEwan 100 Sims V. McLure 472 Sims V. Landray 87 Sinclair v. Talmadge 640, 653 Singer v. McCormick 619 Singer Mach. Co. v. Lamb . . 65, 66 Singerly v. Thayer 639 Singleton v. Hill 85 Singstack v. Harding 138 Sinking Fund Cases 306, 541 Sinnott v. Colombet 201 Skillin V. Merrill 435 Skinner v. Garnett 2 Skinner v. Maxwell 27, 53 Skinner v. Plaisted 26 Skinner v. Santa Rosa 278 Skipper v. Stokes 518 Skudder v. Bank 399, 401 Slacum V. Pomery 241 Slade V. Arnold 183 Slater v. Foster 662 Slatter v. Meek 80, 100 Slaughter House Cases 4 Slayton v. Barry 57 846 TABLE OF CASES. See. Sleeper v. Railroad Co 293 Smith v. Sleigh V. Sleigh 430, 431 Smith v. Slingersby's Case 377 Smith v. Sloan V. Williams 519 Smith v. Slociim V. Assurance Co 410 Smith v. Sloo V. Pool 392 Smith v. Small V. Atwood 307 Smith v. Small V. Jones 165, 169 Smith v. Smalley v. Greene 133, 134 Smith v. 137, 309, 319 Smith v. Smallwood v. Sheppards Ill Smith v. Smart v. Cason 129 Smart v. Sanders 622 Smith v. Smeed v. Foard 683, 684, 688 Smith v. Smith V. Alabama 550 Smith v. Smith V. Alkire 579 Smith v. Smith V. Arnold 197 Smith v. Smith V. Baker 464, 487 Smith v. Smith V. Bank 128 Smith v. Smith V. Bean 195 Smith v. Smith V. Benefit Soc 16 Smith v. Smith V. Black 370 Smith v. Smith V. Bouck 144 Smith v. Smith V. Bradley 79 Smith v. Smith V. Brady 477, 478, 639 Smith v. 640, 655, 666 Smith v. Smith V. Brennan 145 Smith v. Smith V. Bromley 172, 500 Smith V. Brown 312 Smith v. Smith V. Bruning 275, 500 Smith v. Smith V. Case 192 Smith v. Smith V. Chapman 373 Smith v. Smith V. Church 473 Smith v. Smith V. Clark 166 Smith v. Smith V. Clay 626 Smith v. Smith V. Coal Co 590 Smith v. Smith V. Condry 695, 697 Smith v. Smith V. Coon 634 Smith V. Cross 230 Smith v. Smith V. Cuff 171 Smith v. Smith V. Delaney 129 Smith v. Smith V. Evans 71 Smith v. Smith V. Express Co 290 Smith v. Smith V, Finch 128 Smith v. Smith V. Franklin 371 Smith v. Sec. Gray 53 Greenlee 165, 168 Gugerty 655 Hayward 603 Hollister 235 Humphrey 274 Hyde 96 Ingram 401, 403 Johnson 460 Jones 83, 521 Mason 389, 390, 391 392, 393 Marvin 210 Mawhood 175, 196 Mayo 65, 66, 124 McLean 402 Meeting House 473 Miller 368 Milligan 460 Mitchell 170 Morris 660 Morrison 559 Neale 82, 98 Northrup 94, 95 O'Donnell 608 Packard 559 Parsons 216, 240, 241 396, 420 Philbrook 75 Railroad Co. 183, 616, 684 Rowley 500 Sayward 123 School Dist 473 Shell 91 Sheltering Arms. .647, 655 Silvers 229 Smith 103, 105, 142 402, 425, 470, 508 Sparrow 187 Stone 377 Tiden 571 Trust Co 642 Ulman 16!) Watson 188 Wheeler 609 847 TABLE OF CASES. Sec. Smith V. Whitaker 402 Smith V. White 274 Smitli V. Wilcox 186, 194 Smith V. Will 8 Smith V. Woodin 479 Smith's Appeal 98, 312, 322 Smock V. Smock 137 Smoot's Case 594 Smythe v. Allen 233 Smyth V. Ames 539 Smyth V. Munroe 276 Smyth V. Ward 640 Sneed v. Bradley 114 Sneider v. Heidelberger 558 Snelden v. Harmes 521 Snell V. Brown 646 Snell V. Cottingham 664, 685 Snell V. Dwight 321 Snell V. Harris 64 Snell V. Ins. Co 452 Snell V. Ives 365 Snelson v. State 449, 452 Snider v. Yates 402 Snow V. Warner 151 Snowden v. Dulavuy 9 Snyder v. Kirtley 388, 436 Snyder v. Willey 275 Soames v. Spencer 90 Sobey v. Brisbee 135 Solan V. Railroad Co 292 Solinger v. Earle 172 Solly V. Forbes 376, 378 Soloman v. Dreschier 205 Somerby v. Buntin 144 Somers v. McLaughlin 150 Somers v. Pumphrey 6, 22 Somes V. Beaver 11 Somes V. Brewer 21 Sondheim v. Gilbert 395, 413 teoper v. Gabe 6/8 Sortnell v. Hughes 409 Sottomayor v. De Barras 400 Souch v. Sirawbridge. .98, 134, l;i7 Soule v. Albee 129- Sec. South V. Strawbridge 82 Southcombe v. Bishop 625 Southern Build. & Loan Asso. V. Harris 219 Southern Express Co. v. Glenn 615 Southern Express Co. v. Hun- nicutt 289 Southern Express Co. v. Palmer 352 Southern Pacific R. R. Co. v. United States 401 South Royalton Bank v. Bank. 345 South Scituate v." Hanover. 430, 432 South Wayles R. R. Co. v. Wythe 677 Southwick V. Bank 504 Spain v. Hamilton 508, 515 Spalding v. Ewing 284, 285 Spalding v. Oakes 437 Spalding v. Rosa 475, 589, 658 Sparman v. Keim. . .26, 43, 58, 66 Spaulding v. Ludlow 387 Spear v. Bank 96, 124 Spear v. Bach 151 Spears v. Hartley 629 Spencer v. Ayrault 208 Spencer v. Cone 146 Spencer v. Parry 442 Spencer v. Trafford 458 Spengler v. Snapp 237 Sperry v. Fanning 75 Spetz V. Railroad Co 300 Spicer v. Earl 62 Spickler v. Marsh 613 Spies V. Bank 399 Spiller V. Skating Rink 360 Spofford V. Railroad Co 325 Spoor V. Newell 486 Spotswood V. Barrow 276 Sprague v. Cochran 103 Sprague v. Haines 110 Sprague v. Warren 256 Spratt V. Spratt 6 Spring V. Haskell 684 Spring V. Reed 228 848 TABLE OF CASES. See Springfield v. Jacobs 198 Springfield Bank v. Merrick. . . 178 205 Springs v. Railroad Co 288 Spring Valley Water Works v. Schottler 538, 541 Squire v. Hydliflf 43, 162 Squire v. Tellier 1 Staat V. Evans 446 Stack V. Cavanaugh ... .61, 65, 67 68, 70 Stack V. Sperry 216 Stackpole v. Symonds 185 Stacy V. Kemp 194 Stafford v. Devereaux 460 Stafford v. Roof 58 Stamper v. Temple 281 Stanberry v. Smythe 526 Standaril Cotton Oil Co. v. Adoue 313 Standard IMill Co. v. Flower. . . 249 Standard Oil Co. v. Murry 348 Standard Tube v. Inter Union. 336 Stanford v. McGill 594 Stanhilber v. Ins. Co 404 Stansell v. Trust Co 228 Stanton v, Allen 305 Stanton v. Singleton 668 Stanton v. Wilson 468 Stark V. Olson 403 Stark V. Parker 474 Stark V. Raney 129 Starns v. Dillingham 488 Star Publishing Co. v. Associ- ated Press 322 Starr Cash Car Co. v. Rein- hardt 490 Startup V. Macdonald 641, 645 St. Andrew v. Manut. Co 507 St. George v. Biddeford 13 St. John V. Ins. Co 267 St. Joseph's Academy v. Augus- tine 72 St. Joseph, etc. R. R. Co. v. Palmer 288, 290, 291 See, St. Joseph, etc. R. R. Co. v. Ryan 302 St. Louis Agricultural, etc. Asso. V. Delano 186 St. Louis, etc. Railroad Co. v. Clark 113 St. Louis, etc. R. R. Co. v. Dorman 617 St. Louis, etc. R. R. Co. v. Gill 539 St. Louis, etc. R. R. Co. v. Mathews 302 St. Louis, etc. R. R. Co. v. Nelson 295 St. Louis, etc. R. R. Co. v. Paul 2 St. Louis V. Gas Light Co 303 St. Louis Life Ins. Co. v.Graves 18 St. Louis Nat. Bank v. Gay. . . 507 St. Patrick's Church v. Abst. . 458 State V. Addington 542, 513 State V. Ambs 181 State V. Bain 640 State V. Baum 181 State V. Bernheim 173 State V. Bladen County 584 State V. Board 530 State V. Boneil 270 State V. Bonham 200 State V. Bott 181 State V. Broadbelt 1 State V. Brown, etc. Co 1, 2 State V. Bryant 270 State V. Buchanan 4, 544 State V. Bunce 26 State V. Cadigan ICS State V. Campbell 542 State V. Chandler 386 State V. Clark 270 State V. Clover 277 State V. Coal and Coke Co.l, 2, 534 540 State V. Collier 282 State V. Cone 31 State V. Considine 544 849 TABLE OF CASES. See. State V. Corbet 173 State V. Dalton 270 State V. Distillery Co 320 State V. Douglass 426 State V. Dyer 334 State V. Talk 264 State V. Fernandez 181 State V. Forgus 530 State V. Garbroski 198 State V. Gas Co 538 State V. Gelpi 187 State V. Gilliam 566 State V. Glidden 334 State V. Goodwill 2, 4, 540 State V. Granneman 188 State V. Harrington 198 State V. Hastings 283, 351, 517 State V. Hawkins 270 State V. Holden 4 State V. Horgan 542 State V. Howard 44, 530 State V. Illyes 571 State V. Indemnity Asso 404 State V. Johnson 282 State V. Judge 181 State V. Judges 530 State V. Justus 337 State V. Kennedy 400 State V. Krech 188 State V. Kreutzberg 341 State V. Latt 691 State V. Legund 4 State V. Loomis 2, 4, 540 State V. Manuf. Co . . .537, 541 State V. Marshall 542 State V. Missouri Tie and Lum- ber Co 2 State V. Moren 270, 272 State V. Moore 581 State V. Munford 271 State V. Mut. Accident Asso . . . 404 State V. Nebraska Distilling Co 320, 323 State V. Nelson 542 State V. Ohmer 188 See. State V. Olney 271 State V. O'Neil 398 State V. O'Kourk 181 State V. Person 541 State V. Peel Splint Coal Co. . . 2 State V. Plaisted 27, 58 State V. Powell 181 State V. Railroad Co.. 181, 300, 303 352, 362, 365, 366, 541 State V. Eeam 530 State V. Reynolds 544 State V. Richards 551 State V. Sears 566 State V. Setzer 13 State V. Shedroi 198 State V. Shugart 270 State V. Smedes 530 State V. Smith ..47, 200, 470, 542 State V. Standard Oil Co . . 320, 323 334 State V. Stewart 334 State V. Taylor 229 State V. Thompson 542 State V. Tutty 400 State V. Verwayne 530 State V. Watson 375 State V. Weatherwax 35 State V. Williamson 283, 517 State V. Wilson 2, 173 State V. Worthington 577 State V. Young 193 State Bank v. Knoop 534 State Bank v. United States . . 504 State, etc. Ins. Co. v. Brinkley 404 State Trust Co. v. Sheldon. 275, 637 Stead V. Dawber 81, 648 Stearnes v. Page 626 Stearns v. Dillingham 446 Stebbins v. Peck 192 Stebbins v. Smith 118 Steel V. Smelting Co 276 Steel V. Souder 634 Steele v. Andrews 208 Steele v. Asso Ill Steele v. Fierson 520 850 TABLE OF CASES. Sec. Steele v. Railroad Co 530 Steele v. Williams 452 Steene v. Aylesworth 352, 364 Steele v. Trebilcock 185 Stees V. Leonard 573 Steffes V. Lemke 382 Stein V. Bienville Co 534 Stein V. Swenson 228, 237 Steiner v. Clisby.486, 488, 491, 494 Stephens v. Bank 232 Stephens v. Board 504 Stephens v. Olson 211, 230 Stephens v. Railroad Co 274 Stephenson v. Osborne 558 Stern v. Dermis 576 Stevens v. Benning 519 Stevens v. Catlin 371 Stevens v. Cincin. Enquirer Co 270 Stevens v. Goodsell 453 Stevens v. Hay 129 Stevens v. Lee 110, 479 Stevens v. Warren 266 Stevens v. Webb 577 Stevenson v. Ewing 198 Stevenson v. Gray 400 Stevenson v. Kyle 517 Steward v. Conner 445 Stewart v. Ahrenfeldt 427 Stewart v. Davis 188, 190 Stewart v. Flint 7 Stewart v. Ins. Co 513, 514 Stewart v. Jerome 128 Stewart v. Lispenard 7 Stewart v. Loring 475, 585 Stewart v. Mallon 320 Stewart v. McQuade 664 Stewart v. Petree 222 Stewart v. Railroad Co 325 Stewart v. Schall 249 Stewart v. Stewart 106, 449 Stewartson v. Lathrop 198 Sticker v. Overpeck 666 Stickney v. Moore 222, 224 Stiger v. Burt 238 Stiles v. McClellan 98 Sec. Stillwell, etc. Co. v. Phelps . . . 666 Stix V. Matthews 395, 408 Stocker v. Brockelbach 677 Stockett V. Watkins 489 Stocking V. Hunt 560 Stocks V. Dobson 508 Stoddard v. Martin 246 Stodhard v. Lee 473 Stokes v. New York 540 Stokes v. Stokes 668 Stondenmeier v. Williamson . . . 120 Stone V. Browning 141, 147 148, 149 Stone V. Dennison 34, 80, 482 t~;tone V. Dickinson 375 Stone V. Graves 188 Stone V. Lidderdale 283, 517 Stone V. Mississippi 273, 532 546, 547 Stone V. Porter 389 Stone V. Railroad Co. 203, 538, 539 Stone V. State 87 Stone V. Stone 481 Stone V. Todd 460 Stone V. Trust Co 539 Stone V. Walker 122 Stone V. Wilbur 7 Stone V. Wisconsin 539 Storer v. Gordon 615 Storer v. Railway Co 676 Stormont v. Assurance Co.... 18 Story v. Soloman . . . 245, 249, 255 Storz V. Finkelstein 205 Stout V. Ennis 279 Stouthall V. Farish 208 Stover V. Duren 624 Stowell V. Drake 371 Stowell V. Robinson 81 Stowers v. Hollis 30, 33, 134 Straight v. Wright 93, 94, 96 Strathman v. Gorla 284 Straus V. Wessel 512 Strauss v. Meertief 611 Strawberry Point Bank v. Lee. 399 Stray v. Russell 448 851 TABLE OF CASES. See. Streatfield v. Halliday 382, S86 Street v. Blay 496, 612 Street v. Varney Electrical Sup- ply Co 4 Streeter v. Life and Accident Soc 20 Strickland v. Burns 445 Strickland v. Hamlin 124 Strickland v. Turner 572 Stringfield v. Heiskell 519 Strobridge Litho. Co. v. Crane 677 Strohn v. Railroad Co £82 Strong V. Bird 360 Strong V. Foote 43 Str other v. Butler 464 Strubbles v. Railroad Co 492 Struthers v. Drexel 209 Stuart V. Baker 64 Stuart V. Marvel 641 Stuart V. Sears 454 Stuart V. Railway Co 672 Stuart V. Telegr. Co 693 Stubbins v. Mitchell 389,390 Studholme v. ' Mandell 577 Studley v. Borth 125 Studwell V. Shapter 67, 68 Stull's Estate 178 Sturdivant v. Bank 417 Sturgis V. Bank 130 Sturges V. Crowninshield 557 559, 561 Stuht V. Sweesy 105 Sturt V. Mellich 633 Sturtevant v. Armsby Co.... 406 Stutz V. Dickey 136 Succession of Cassidy 403 Succession of Gaines 26 Succession of Jackson 473, 020 Succession of Larendon 403 Succession of Latchford. . .208, 219 Succession of Voorhies 034 Sugarman v. State 581 Suggett V. Cason 82 Sugworth V. Leffel 612 Suit V. Woodhall 409,503 Sec. Sullivan v. Association 219 Sullivan v. Flynn 22, 23 Sullivan v. McMillan. 686, 687, 691 Sullivan v. Sullivan. . 115, 395, 398 Summerfield v. Teleg. Co 693 Summers v. Clark 435 Summei-s v. Huston 508 Sumner v. Jones 192 Sumner v. Powell 372, 374 Sumner v. Williams 485 Supreme Commandery v. Ains- worth 16, 19 Superior Con. Land Co. v. Bick- ford 385 Supervisors v. Briggs 452 Supervisors v. Galbraith 399 Suppiger v. Ins. Co 20 Susong V. Vaiden 374 Sussex Peerage Case 178 Sutherland v. Briggs 98 Sutherland v. Carter 122 Sutherland v. Reeve 508 Sutton V. Head 312 Sutton V. Warner 400 Suydam v. Clark 571 Swain v. Burnett 84 Swain v. Lindsey 628 Swain v. Schieitelin 685 Swan V. Nesmith 87, 128 Swan v. West 568 Swank v. Hufnagle 403 Swann v. Buck 530 Swann v. Scott 331 Swann v. Swann. 180, 274, 322, 412 Swanzey v. Moore 80, 474 Swart V. Gale 448 Swartout v. Railroad Co 302 Swayne v. Riddle 209, 214, 215 Swearington v. Dairy Co 630 Sweatland v. Telegraph Co ... . 297 Swedish-Am. Nat. Bank v. Bank 407 Sweeney v. Hunter 540 Sweeney v. Ins. Co 266 Sweeney v. McLeod 284 852 TABLE OF CASES. Sec. Sweeney v. United States 642 643, 645 Sweet V. Lumber Co 134 Sweigart v. Berk 377 Swift V. Beers 635 Swift V. Bennett 33, 48, 49 Swift V. Poughkeepsie 456 Swift Co. V. United States 452 Swigart v. People 264 Swing V. Munson 404 Switzer v. Skiles 169 Sykes v. Bank 524, 525, 527 Sykes v. Beaden 330 Sykes v. Dixon 98, 344 Sylvester v. Swain 212 Syracuse Water Co. v. Syracuse 534 Taff Vale Railroad Co. v. The Amalgamated Society of Railway Servants 334, 335 Taft V. Adams 426 Taft V. Sergeant 66 Talbott V. Trans. Co 421 Tank v. Roliweder 460 Tapham v. Portland 503 Tarbell v. Railroad Co 288 Tarlton v. McGawley 342 Tate V. Development Co 679 Tatum V. Kelly 205 Tawney v. Levy 8 Taylor v. Allen 92 Taylor v. Beck 655 Taylor v. Blanchard 318 Taylor v. Boardman 407 Taylor v. Bowers 275 Taylor v. Caldwell. . .572,- 589, 657 Taylor v. Chester 161, 409 Taylor v. Gas and Coke Co. . . . 175 Taylor v. Hare 448 Taylor v. Higgins 441 Taylor v. Hill 29 Taylor v. Jaques 499 Taylor v. Lynch 515, 522 Taylor v. Mareum 655 Taylor v. Mitchell 667 Sec. Taylor v. Mygatt 118 Taylor v. Palmer 519 Taylor v. Pratt 93 Taylor v. Railroad Co 288 Taylor v. Read 109 Taylor v. Salmon 367 Taylor v. Savage 388 Taylor v. Sharp 397, 420 Taylor v. Stockwell 558,560 Taylor v. Taylor 357, 373 Taylor v. Williams 477 Taylor v. Wood 466 Taylor v. Young 185 Teegarder v. Lewis 445 Teeters v. Lamborn 125 Telegraph Co. v. Adams 693 Telegraph Co. v. Berringer .... 693 Telegraph Co. v. Carter 693 Telegraph Co. v. Cline 693 Telegraph Co. v. Evans 693 Telegraph Co. v. Griswold 297 Telegraph Co. v. Henderson . . 693 Telegraph Co. v. Kirkpatrick. . 693 Telegraph Co. v. Levy 693 xelegraph Co. v. Piner 693 Telegraph Co. v. Rogers 693 Telegraph Co. v. Rosentreter . . 693 Telegraph Co. v. Saunders 693 Telegraph Co. v. Texas 296 'lelegraph Co. v. Wenger 692 Telegraph Co. v. Wisdom 693 Telegraph Co. v. Wood 693 Telford v. Albro 612 Telford v. Garrels. . .208, 228, 229 Tegler v. Shipman 398 Temperton v. Russell 334, 342 Templeman v. Biddle 136 Templeton v. Bascom 121 Templeton v. Russell 341 Tenant v. Tenant 399 Ten Eyck v. Manning 667, 668 Tennessee v. Sneed 556, 5U0 Tennessee, etc. R. R. Co. v. Danforth 699 Tenney v. Evans 72 853 TABLE OF CASES. See. Terrell v. Wentwortli 55 Territt v. Bartlett 177, 205 408, 409 Terry v. Anderson 528 Terry v. Eagle Lock Co 330 Terry v. Munger 487, 489 Texas, et,c R. R. Co. v. Rail- road Co 330 Texas Standard Oil v. Adoue. . 321 Thacher v. Pray 504 Thacker v. Hardy 245, 257 Thallheimer v. JBrinckerhoff . . . 518 Thames v. Jones 367 Thatcher v. Morris 408 Thayer v. Allison 621. Thayer v. Bur chard 615 Thayer v. Daniels 508 Thayer v. Kelley 515 Thayer v. Luce 85 Thayer v. Star Mining Co ... . 225 'llie Amiable Nancy 695 The Anna Maria 695 Thebald v. Burleign 660 The Bradford City 420 The Elvira Harbeck 424 The Guildhall 410 The Hadji 410 The Harriman 568, 569, 573 The Juliana 3 The Majestic 293, 295 The Schooner Lively 695 'ihe Tornado 572 Thibodeau v. Hildreth 677 Thiebaud v. Furniture Co.. 97, 676 Third Nat. Bank v. Harrison . . 257 Third Nat. Bank v. Steele 408 Tholen v. Duffy 208 Thoman v. Dodge 128 Thomas v. Armstrong 134 Thomas v. Bartow 600 Thomas v. Caulkett 163 Thomas v. Cohen 515 Thomas v. Cook 1?3, 129 Thomas v. Flevry 643, 646 Thomas v. Hatch 110, 619 Sec. Thomas v. Hawkes 205, 427 Thomas v. Hunter 186 Thomas v. Jones 229 Thomas v. Joslin 99 Thomas v. Knowles 659 Thomas v. Lee County 509 Thomas v. Miles 312 Thomas v. Murray 210 Thomas v. People 271 Thomas v. Poor 661 Thomas v. Pullis 5G Thomas v. Railroad Co... 301, 303 304, 305, 330, 410, 683 Thomas v. Sypert 630 Thomas v. Trustees 98 Thomas Fruit Co. v. Start 650 Thomasson v. Townsend 229 Tompkins v. Dudley 665 Thompson v. Alger 154 Thompson v. Blanchard. . . .79, 93 Thompson v. Bowman 384 Thompson v. Davies 167 Thompson v. Ellenz 406 Thompson v. Gould 571 Thompson v. Hamilton 66 Thompson v. Howard 487 Thompson v. Ketcham 401 Thompson v. Lay 54 Thompson v. Leach 9, 23, 471 Thompson v. Lee County 509 Thompson v. Lock 378 Thompson v. Marshall 62 Thompson v. Parker 355 Thompson v. Peek 498 Thompson v. Read 632 Thompson v. Richards 384 Thompson v. Simpson 526 Thompson v. Smith 631 Thompson v. Strickland .... 26, 55 Thompson v. Taylor 401 Thompson v. Telegr. Co 693 Thompson v. Thompson 445 Tiiompson v. Trustees 584 Thompson v. Van Vechten .... 237 Thompson v. Wood 603 854 TABLE OF CASES. See. Thomson v. Poor 648 Thormachlen v. Kaeppel . . . 59, 70 Thorn v. San Francisco 561 Thornborow v. Whiteacre. . . . 568 Thornburg v. Hasten 93 Thornett v. Haines 165, 496 Thornhill v. Evans 222 Thornton v. Dean 420 Thornton v. Kelly 88, 89 Thornton v. Rosenfield 406 Thornton v. Sherratt 317 Thornton v. Wynn 140 Tnorp V. Bateman 460 Thorpe v. Railroad Co 534, 536 Thousand Island Park Asso. V. Tucker 320 Thrift V. Payne 474 Thurston v. Blanchard 57 Thurston v. Mills 446 Thurston v. Percival 443 Tibbetts v. George 526 Tibbetts v. Gerrish 52 Tice V. Freeman 85 Tiedman v. Knox 512 Tierman v. Jackson 521 Tietz V. Tietz 442 Tighe V. Morrison 123, 124 Tilden v. Blair 240, 408 Tilden v. Johnson 492 Tilford V. Roberts 156 Tilley v. Damon 498 Tillinghast v. Lumber Co.... 419 Tillock V. Webb 191 Tillotson V. Pritchard 403 Tillotsson V. Nye 222 Tilton V. Tilton 102 Tiluen v. Blair 395 Timberlake v. Thayer 474 Timothy v. Wright 287 Timson v. Ramsbottom 508 Tingle v. Fisher 508 Tinkler v. Swaynie 100 Tinsley v. Harkins 229 Tisdale v. Harris 144 Tison V. Howard 512 See. Titman v. Titman 470 Tobey v. Wood 51, 60 Todd V. Clapp 60 Todd V. Railroad Co 295 Todd V. Taft 674 Tode V. Gross 304, 318 Toledo, etc, R. R. Co. v. Chew. 464 Toledo, etc. Co. v. Jacksonville 271 Toledo, etc. Co. v. Penn Co. 341, 677 Toledo, etc. R. R. Co. v. Tapp. 424 Tolson V. Garner 21 Tom V. Goodrich 370 lomblin v. Callen 249 Tombs V. Alexander 620 Tomlinson v. Gill 360 Tomlinson v. Jessup 541 Tooke V. Newman 239 Tool Co. V. Norris 279, 280, 282 284, 285 Topeka Water Supply Co. v. Root 10 Torpy V. Johnson 394, 437 Touche V. Warehousing Co ... . 360 Touissaint v. Martinant 434 435, 442 Tourret v. Cripps 97 Touteng v. Hubbard 569 Towers v. Barnett 140, 448 Towers v. Moore 374 Towers v. Osborne 139 Towle V. Dresser 27, 58, 66 Towle V. Larrabee 183 Towle V. Leavitt 165 Towne v. Wiley 69 Townsend v. Hargraves .... 84, 100 138, 150 Townsend v. Hurst 595 1 ownsend v. Kennedy 83, 85 Townsend v. Mead 634 Townsend v. Railroad Co 293 Townsend v. Riley 241 Townsend v. Rockham 354 Townsend v. Vanderwerker. . . . 104 105, 667 '1 racy v. Roberts 75 855 TABLE OF CASES. Sec. Tracy v. Talmage 176, 409 414, 447, 500 Tracy v. State 551 Tracy v. Waters 518 Trader v. Jarvis 30, 625 Traders Bank v. AIsop 257 Traders' Nat. Hank v. Wood- lawn Manuf. Co 230 Tradesman's Bank v. Merritt. . 502 Trafton v. United States 370 Trainer v. Trumbull 45, 49 Trammell v. Craddock 103 Transportation Co. v. Corn- forth 288 Transportation Co. v. Downie. . 582 Transportation Co. v. Thielbar 293 Trapnall v. BanK 27 Travellers' Ins. Co. v. McKon- key 19 Traver v. Halsted 594 Treadway v. Riley 411 Treadway v. Veasey 53 Treadwell v. Herndon 120 Treasurer v. Mining Co 674 Treat v. Hiles 133 Treat v. Stanton 364 Trebilcock v. Wilson 278,529 Treford v. Holmes 119 Trenton Ins. Co. v. Johnson. . . 246 266 Trenton Potteries Co. v. Oli- phant 309, 312, 314 Trevor v. Wood 85 Trewinian v. Howell 485 Trible v. Nichois 234 Trieder v. Bank 193 Trigg V. Read 449 Trimble v. Thorson 234 Trimbo v. Trimbo 7 Trimley v. Vignier 399 Tiimmer v. Thompson. .. .373, 576 Tripp v. Armitage 575 Tripp v. Bishop 98 Tripp v. Brownell 521 See. Trist v. Child... 274, 280, 284, 285 286, 305, 526 Trovinger v. McBurney 274 Troy V. Bland 450 Troy Conference Academy v. Nelson 385 Trudeau v. Poutre 130 True V. Ranney 400 True V. Telegraph Co 297 Trueman v. Loder 90 Trueman v. Hurst 427 Truman v. Fenton 624 Trumbull v. Nicholson 622 Trundler v. Riley 281 Trustees v. Wheeler 508 Tucker v. Moreland 21, 28, 64 Tucker v. Mowrey 195 Tucker v. West 192 Tuckerman v. Newhall. . . .375, 381 Tuder v. Perkins 508 Tufts v. Plymouth, etc. Co 83 Tugman v. Chicago 198 Tunison v. Bradford 105 Tunison v. Chamblin. . . .27, 57, 65 Tupper V. Cadwell 39, 42, 46 Turk V. Ridge 352 Turner v. Esselman 387 Turner v. Frisby 30, 33, 40, 468 Turner v. Gaither 41, 43, 52 Turner v. Hubbell 122 Turner v. Mason 619 Turner v. Rusk 21, 25 Turner v. Telegraph Co 297 Tutt V. Ide 452 Tuttle V. Armstead 43], Tuttle V. Block 528 Tuttle V. Burgett 595,597 Tuttle V. Campbell 446, 488 Tuttle V. Cooper 369, 375, 387 Tuttle V. Strout 538 Tweddle v. Atkinson. .339, 360, 361 Tweeddale v. Tweeddale 339 Twin Lick Oil Co. v. Marbury 625 Tyler v. Carlisle 447 856 TABLE OF CASES. Sec. Tyler v. Gallop 29, 58 Tyler v. Telegraph Co 297 Tyler v. Wadingson 185 Tyson v. Rickard 209, 233 Uberoth v. Bank 15 Udall V. Metcalf 272 Udell V. Atherton 503 Underbill v. Ins. Co 629 Underwood v. Mort. Co 240 Underwood v. Scott 200 Underwood v. Wolf 612 Ungericht v. State 188 Uhler V. Applegate 185 Ullniann v. Barnard 151 Ulrich V. Reinaehl 268 Ungley v. Ungley 102 Union Bank v. Coster 94 Union Central Life Ins. Co. v. Woods 405 Union El. E. R. Co. v. Nixon. . 284 Union, etc. R. R. Co. v. Dodge County 456 Union Nat. Bank v. Bank 237 Union Nat. Bank v. Chapman 396 401 Union Pac. R. R. Co. v. Bank 515, 518 Union Pac. R. R. Co. v. De Busk 537 Union Pac. R. R. Co. v. Railroad Co 672, 676, 680 Union Pac. K. R. Co. v. Rainey 288 Union Pac. R. R. Co. v. Ruef : 336 Union Pacific R. R. Co. v. United States 325 Union State Bank v. Railroad Co 290 Union Strawboard Co. v. Bon- field 314 United States v. Behan 473 688, 696 Sec. United States v. Bradley 701 United States v. Bainbridge. . 30 United States v. Coal Co 628 United States v. Coal Dealers' Asso 310, 326 United States v. Craig 422 United States v. Crosby 403 United States v. Dashiell 584 United States v. Dewitt..547, 548 United States v. Edgar 422 United States v. Fox 403 United States v. freight Asso. 274 320, 323, 324, 326, 557 United States V. Gibbon 36 United States v. Kane 336 United States v. Keeler 584 United States v. Joint Traffic Asso 324, 326 United States v. Knight Co... 323 326 United States v. McDaniel 620 United States v. Northern Se- curities Co 324, 326 United States v. Olney 271 United States v. Piek 656 United States v. Pipe and Steel Co 310, 326 United States v. Prescott 584 United States v. Price... 372, 374 United States v. Speed 688 United States Express Co v. Backman 306 United States jiiixpress Co. v. Rush 290 United States, etc. Investment Co. V. Harris 70 United States Invest. Co. v. Windmill Co 403 United States Mortg. Co. v. bperry 224, 240 United States Sav. & Loan Asso. v. Scott 219, 396, 399 United States Tel. Co. v. Gil- dersleve 297 85Y TABLE OF CASES. Sec. Unity V. Belgrade 13 Universal Fashion C!o. v. Spencer 276 Urmston v. Whitelley 309 Updike V. Titus 460 Upham V. Clute 124, 130 Upham V. Dodd 148 Upshaw V. Gibson 65 Urquhart v. Brayton 352 Usher v. Hiatt 580 Utica, etc. R. E. Co. v. Brinck- erhoff 98 Vahlberg v. Keaton 208 Vail V. Railroad Co 580 Vail V. Van Doren 217, 227 Valentine v. Canali 63 Valentine v. Lunt 9 Vallett V. Parker 257 Valley Railroad Co. v. Iron Co. 449 Valpey v. Rea 21, 25 Valton V. Ins. Co 267 Van Alst v. Hunter 7 Van Baumbach v. Bade 566 Van Buren v. Diggs 640 Vanbuskirk v. Ins. Co 508 Vance v. Hair 634 Vance v. Vance 528, 560 Vandenburgh v. Spooner 88 Vanderback v. Rochester . . 449, 452 Van Doren v. Everett 136 Van Doren v. Robinson 669 Van Doren v. Tjader 128 Van Dusen v. Sweet 9 Van Dyne v. Vreeland 277 Van Hoffman v. Quincy 555 Vanhorn v. Des Moines 350 Van Horn v. Hann 11 Van Horn v. Van Horn 341 Van Hoven v. Irish 192 Van Kensen v. Parmelee. .384, 634 Van Marter v. McMillan 229 Vanmeter v. Spurrier 202 Vannoy v. Patton 205 Van Patton v. Reals 22 Sec. Van Rensselaer v. Hayes 560 Van Rensselaer v. Jewett 691 Van Santen v. Oil Co 440 Van Schaick v. Railroad Co. . . 362 Van Schoonhoven v. Curley. . . 555 Van Tratt v. Wiese 703 Van Valkenburg v. Torrey. . . . 262 Van Valkenburgh v. Watson. . . 47 470 Van Voorhis v. Brintnal. . 178, 400 Van Wagener v. Gas Light Co. 506 \ an Wych v. Allen 685 Van Wyck v. Watters 228 Varney v. Bradford 479 Vassault v. Edwards 98 Vasse V. Smith 68, 69, 70 Vaughn v. Dorr 27 Vaughn v. Railroad Co 288 Vaughn v. Smith 86 Vaught V. Rider 234 Vawter v. Griffin 144 Veal v. Fortson 66 Veazie v. Williams 165 Vegelahn v. Guntner 334, 336 Vehne v. Pinkham 62 Vernon v. Vawdey 429 Vesey v. Ackington 239 Vent V. Osgood 27, 62, 482 Vickers v. Railroad Co 300 Vickery v. Dickson 234 Vickery v. Welch 318 Vicksburg, etc. R. R. Co. v. Ragsdale 683 Victor v. Stroock 145, 150 Victor Talking Mach. Co. v. The Fair 339 Vidal v. Girard 274 Vidal V. Thompson 115 Vincent v. Germond 151 Vincent v. Railroad Co 306 Violett V. Patton 93 Violett V. Powell 89 Virginia Development Co. v. Iron Co 541 Vliet V. Camp 241 858 TABLE OF CASES. Sec. Vocke V. Peters 134, 274 Voglesang v. Null 27 Voight V. Raby 626 Voight V. Wright 549 Von HoflFman v. Quincy 528 Voorhees v. Combs 442 Voorhies v. Society 404 Voorhis v. Child 373 Voorhis v. Staed 213 Vores V. Harshbayer 14 Vose V. Grant 394, 437 Vought V. Williams 645 Vrooman v. McKaig 445 Vrooman v. Turner.. 348, 351, 354 Wabash R. R. Co. v. Hannahan 336 Wabash, etc. R. R. Co. v. Illi- nois 538 Wabaunsee County v. Walker . . 456 Wade V. Haycock 640,651 Wadleigh v. Sutton 666 Wadsworth v. Sherman 12 Wadsworth v. Telegr. Co 693 Wailing v. Toll 45 Wain V. Walters 93 Wainright v. Water Works Co. 349 Waite V. Leggett 450 Wait V. Maxwell 9, 12 Waite V. Paud 250 Wait V. Wait 131 Wake V. Harrop 160 Wakefield v. Martin 508 Wakeman v. Grover 170 Wakeman v. Manuf. Co.. 690, 697 Walberton v. Davis 129 Walcott V. Heath ; 255 Wald V. Railroad Co 424, 580 582, 583 Waldron v. Evans 427 Wales V. Stetson 534, 541 Walker v. Barney 107 Walker v. Brown 442 Walker v. Coleman 488 Walker v. Conant 445, 450 Walker v. Cronin 341, 342 Sec. Walker v. Davis 57, 69 Walker v. Denison 622 Walker v. Duncan 464 Walker v. Emerson 624 Walker v. Pitts 578, 660 Walker v. Gregory 274 Walker v. Hill 122, 132 Walker v. Irwin 125 Walker v. Johnson 249 Walker v. Larkin 498 Walker v. Mattraw 319 Walker v. Maxwell 371, 380 Walker v. McCulloch 377, 379 Walker v. Nussey 153; Walker v. Railroad Co 134 Walker v. Richards 126 Walker v. Rostron 360 Walker v. Shackelford 479 Walker v. Supple 144 Walker v. Tucker 568, 572, 659 Walker v. Tyrrel 620 Walker v. Whitehead 555 Wall v. Equitable Soe 404 Wallace v. Chair Co 515 Wallace v. Eldridge 278,529 Wallace v. Kelsall 382 Wallace v. Latham 56 Wallace v. Lawyer 517 Wallace v. Lewis 55 Wallace v. Long 108, 667 Wallace v. Morss 69 Wallace v. Railroad Co 537 Wallace v. Rapplej'e 274 Wallace v. Sanders 582 Wallace v. Schaub 458, 460 Wallace v. Wortham 125 Walling V. Michigan. ..'. .547, 549 Wallis V. Bardwell 42, 46, 73 Wallis V. Carpenter 382 Wallis V. Randall 384 Wallis V. Warren 606 Walmsley v. Cooper 377 Walpole V. Oxford 466 Walrath v. Champion Mining Company 338 859 TABLE OF CASES. Sec. Walrath v. Ingles 155 Walsh V. Mayor 638 Walsh V. Powers 66 Walsh V. Young 71 Walter v. Foutz 216 Walters v. Whitlock 406 Walton V. Gaines 32, 66 Walton V. Hollis 580 Walton V. Waterhouse 573 Walworth v. Harris 402 Walworth v. Holt 367 Wampler v. Shissler 386 Wann v. McNulty 370 Wann v. Telegraph Co 297 Waples V. Jones 242 Ward V. Anderson 51, 53 Ward V. Bandon 242 Ward V. Byrne 311 Ward V. Doncombe 508 Ward V. Johnson 370 Ward V Laverty 5^ Ward V. Morrison 508 Ward V. Vance 572 Ward V. Vosburgh 413 Ware v. Cartledge 27 Ware v. Manning 427, 429 Ware v. Stephenson 121 Warehouse Co. v. Duke 597 Warfield v. Booth 312, 316 Waring v. Cunlitf 222 Waring v. Mason 90, 612 Waring v. Railroad Co 669 Warner v. Bank 399 Warner v. Grace 281 Warner v. Jeftray 407 Warner v. Hale Ill Warner v. Railway Co 137 Warner v. Willoughby 128 Warnock v. Davis 267 Warren v. Bank. 515, 521, 524, 526 Warren v. Conings 521 Warren v. Richmond 595 Warren v. Scanlon 248 Warren v. Stoddart 640,051 Warren v. Tyler 599 Sec. Warren v. Wheeler 641 Warren Deposit Bank v. Rob- inson 217 Washburn v. Cutler 493 Washburn v. Dasch 137,313 Washington v. Johnson 613 Washington Ice Co. v. Webster 97 Wason V. Railroad Co 560 Waterman v. Meigs 139, 141 Waters v. Riley 374 Waters v. Stevenson 492 Watertown Thermometer Co. V. Pool 318 Watkins v. Baird 497, 498 Watkins v. Glenn 555,566 Watkins v. Sands 131 Watson V. Brick Co 686, 687 Watson V. Cresap 448 Watson V. Lane 417 Watson V. Ledoux. . .425, 458, 483 Watson V. McLarin 94 Watson V. Murray 286 Watson V. Perrigo 131 Watson V. Railroad Co 561 Watson V. Sherman 99 Watson V. Stever 488 Watson V. Watson 7 Watson V. Wellington 526 Watt V. Cranberry Co 86, 88 Watte v. Wiekersham 256 Watterson v. Railroad Co. .302, 689 Watts V. Camors 240, 420 Watts V. Creswell 70 Watts V. Van Ness 183, 192 Waugh V. Morris 164 Waughop V. Bartlett 634 Way v. Cutting 448 Way v. Langley 701 Way V. Railroad Co 292 Waymeer v. Jetmore 13 Waymell v. Reea 414 Wayniire v. Waymire 105 Wayne County v. Randall. 449, 452 Wayne County Savings Bank v. Low 240, 395, 408 860 TABLE OF CASES. Sec. Waywell v. Reid 409 Weatherford, etc. R. R. Co. v. Wood 134 Weatherly v. Smith 229 Weaver v. Carpenter 28 Weaver v. Jones 26, 27 Weaver v. Shyrock 374 Webb V. Lumber Co 122 Webb V. McCauley 283 Webb V. Railroad Co 144 Webber v. Howe 413 Webber v. Virginia 551 Weber v. Kerkendall 455 Weber v. Squire 683 Webster v. Brown 91 Webster v. Davis 632 Webster v. Enfield 595 Webster v. Fleming 362 Webster v. Le Compte 80, 100 Webster v. Machine Co 399 Webster v. Hunger 398, 409 Webster v. Rees 555 Webster v. Seminary 541 Webster v. Wade 602, 605 Weed V. Black 284 Weed V. Ins. Co 17, 18, 20 Weed V. Jewett 515 Weed V. Page 150 Weed V. Walker 485 Weeks v. Hunt 507 Weeks v. Merrow 47, 470 Weeks v. O'Brien 643 Weeks v. Robie 599 Weems v. Mortg. Co 228 Weil V. Golden , 398 Weil V. Willard 91, 92 Weingartner v. Probst 667 Weintz v. Haf ner 595 Weir's Will 8 Weis V. Denlin 575 Weisser v. Denison 427, 428 Welch V. Bank 428 Welch V. Bunce 58 Welch V. Darling 109 W^elch V. Marvin 122 See. Welch V. Mayer 521 Wellancr v. Fellows 478 Weller v. Goble 366 Weller v. State 542, 543 Weilis V. Levy 632 Wells V. Brown 128 Wells V. Calnan 572,575 Wells V. Cook 494 Wells V. Evans 377 Wells V. Foster 283, 517 Wells V. Hartford Manilla Co. 594 Wells V. Miller 388, 436 Wells V. Monihan 114 Wells V. People 179, 201 Wells V. Prince 158 Wells V. Railroad Co 295 Wells V. Stradling 105 Wells V. Vansickle 399 Welsh V. Bank 427, 428 Weltmer v. Bishop 164 Welty V. Jacobs 667 Welton V. Missouri 551 Wenestine v. Freyer 398 Wenham v. State 4, 544 VVentworth v. Woodside 186 Werner v. Humphreys 590 Werner's Appeal 43 Wessel V. Land Co 449 West V. Blackway 656 West V. Camden 274 West V. Greggs 39, 42 West V. Holmes 246 West V. O'Harra 122 West V. Penny 27 West V. Russell 8 West V. Telegr. Co 693 West V. Wright 249, 256 Westcott V. Hinckley 483 Westerfield v. Bried 237 Westerfield v. Jackson 9 Western v. Sharp 442 Western Dist. Warehouse Co. V. Hobson 312 Western, etc. Railroad Co. v. Cotton Mills 421 861 TABLE OF CASES. fr-jrr "Sec. Western, etc. R. R. Co. v. Strong 299 Western Transportation Co. v. Newhall 289 Western Union Tel. Co, v. Cook 297 Western Union Tel. Co. v. Blanchard 297 Western Union Tel. Co. v. Call Pub. Co 296 Western Union Tel. Co. v. Carew 297 Western Union Tel. Co. v. Crall 297 Western Union Tel. Co. v. Crawford 297 Western Union Tel. Co. v. Fenton 297 Western Union Tel. Co. v. Ferguson 693 Western Union Tel. Co. v. Griffin 188 Western Union Tel. Co. v. Hall 297, 696 Western Union Tel. Co. v. Howell 297 Western Union Tel. Co. v. James 549 Western Union Tel. Co. v. Linn 297 Western Union Tel. Co. v. Littlejohn 248 Western Union Tel. Co. v. Lyon 297 Western Union Tel. Co. v. Meek 297 Western Union Tel. Co. v. Railroad Co 308 Western Union Tel. Co. v. Stevenson 297 Western Union Tel. Co. v. Telegraph Co 304, 308 Western Union Tel. Co. v. Wilson 188, 297 Sec. Western Union Tel. Co. v. Yopst 188 Western U. R. R. Co. v. Bishop 299 Western Wooden Ware Asso. V. Starkey 312 Westfall V. Parsons 124 VVestlake v. Adams 448 VVeestmoreland v. Porter 96 Westropp V. Solomon 448 West Virginia Trans. Co. v. Pipe Line Co 304, 324 West Virginia Trans. Co. v. Standard Oil Co 304 Wetherbee v. Potter 101 Wetherell v. Langston 377 Wethwell v. Jones 177 Wetmore v. Pattison 696 Wettingham's Case 66 VVeyburn v. White 259 Whalen v. Sullivan 83 Whaley v. Hinchman 85 Whaley v. Mort. Co 211, 228 Whaley v. Peak 425 Wharton v. Mackenzie 41 Wheadon v. Olds 427, 450 Wheat V. Rice 354 VVheatly v. Baugh 345 Wheaton v. East 65 Wheaton v, Hibbard 500 Wheelan v. Clock Co 575 Wheelden v. Lyford 186 Wheeler v. Collier 166 Wheeler v. Frankenthal Ill 112, 135 Wheeler v. Jackson 528,638 Wheeler v. Reynolds 103 Wheeler v. Russell 196, 205 Wheeler v. Spencer 246 Wheeler v. Stewart 356 Wheeler v. Walton 519 Wheeler v. Wheeler 275 Wheelock v. Lee 243 Whelan v. Sullivan 92 Whelen v. Boyd 645 862 TABLE OF CASES. See. Whelpdale'g Case 368 Whipple V. Dow 470 Whipple V. Fowler 403 Whipple V. Parker 108, 110 137, 479 Whichcote v. Lyle 27 Whitaker v. Sandifer 603 Whitaker v. Security Co.. 396, 399 Whitcomb v. Oilman 188 Whitcomb v. Joslyn 67, 68 White V. Allen 590 White V. Bank 330 White V. Barber 249, 413 Wliite V. Breen 92 White V. Buss 176, 461 White V. Cook 280 White V. Core 83 White V. Farley 7 White V. Gardner 15 White V. Hart 560 White V. Henry 29, 47 White V. Hermann 92 White V. Holland 135 White V. Ins. Co 18 White V. Jones 457 White V. Joyce 72, 73 White V. Knapp 140 White V. Levy 135 White V. Mann 588 White V. Miller 685 White V. Oliver.. 473, 477, 651, 652 White V. Palmer 12 White V. Prentiss 508 White V. Rintoul 127, 663 Whitesides v. Hunt.. 249, 251, 255 Whitford Chemical Co. v. Hard- way 677 Whiting V. Ohlert 135 Whiting V. Sullivan 457 Whitlock V. Doolittle 634 Whitmarsh v. Hall 62 Whitmore v. Montgomery. 183, 184 Whitney v. Cowan 526 Whitney v. Dutch 65 W hitney v. Port Huron 456 Sec. Whitney v. Spencer 568 Whitney v. Stearns 94 Whitney v. Stayton 312 Whitney v. Whitney 408 Whitstine v. Wilson 467 Whitstone v. Shaw 433 Whittemore v. Cope 37 Whittemore v. Gibbs 144 Whittemore v. Wentworth . . . . 125 Whittingham v. Hill 44 Whitwarth v. Adams 212 Whitworth v. Hart 691 Wibert v. Railroad Co 615 Wick China Co. v. Brown 336 Wick V. Dawson 419 Wicker v. Hoppoch 169, 364 Wickham v. Wickham 87 Wieland v. Kobick 67, 68 Wier V. Batdorf 84 Wiggin V. Bush 171 Wiggin V. Cumings 377 Wiggins V. Burkham 428 Wiggins Ferry Co. v. Railroad Co 308 Wigglesworth v. Dallison.... 136 Wightman v. Wightman 400 Wilbaux V. Live Stock Co. 368, 382 Wilbur V. How 167 Wilbur V. Wilbur 356,361 Wilcox V. Fitzhugh 12 Wilcox V. Howell 276 Wilcox, etc. Co. v. Green 116 Wilcoxson V. Andrews 281 Wild V. Williams 377 Wilder v. Collier 500 Wilder v. Pigot 32 Wilder v. Weakley 14, 472 Wilder's Succession 401 Wildes v. Dudlow 96, 123, 129 Wildey v. Collier 284, 286 Wiley V. Starbuck 232 Wilhelm v. Fagan 83 Wilhelm v. Hardman 43 Wilhelm v. Voss 132 ^Vilkie V. Womble 109 863 TABLE OF CASES. See. Wilkinson v. Heavenrich 98 Wilkinson v. Lindo 377, 381 Wilkinson v. Towsley 246 Wilkinson v. Verity 604 Wilkinson v. Wilkinson. . 145, 491 Wilks V. Rich 663 Willard v. Bosshard 125 Willard v. Ford 668 Willard v. Sperry 521 Willes V. Greenhill 608 Willett V, People 540 Willet V. Willet , 488 Willetts V, Waite 406 Willey V. Paulk 635 Williams v. Association 220 Williams v. Bacon 83, 90 Williams v. Bagley 330 Williams v. Bank 568 Williams v. Banks 212 Williams v. Bemis 480,482 Williams v. Bradley 373 Williams v. Brown 27 Williams v. Burgess 140 Williams v. Butler 355 Williams v. Byrnes 88 Williams v. Cheney 196 Williams v. Davis 118 Williams v. Flowers 229 Williams v. Fitzhugh 241 Williams v. Gitchell 624 Williaume v. Gorges 627 Williams v. Grant 583 Williams v. Hance 221 Williams v. Harrison 27, 468 Williams v. Hastings 189 Williams v. Hitchings 378 Williams v. Jones 629 Williams v. Knight 32 Williams v. Ladew 491 Williams v. Lake 88 Williams v. Leper 128 Williams v. Mershon 99 Williams v. Montgomery 670 Williams v. Moore 27 Williams v. Morris 86, 91 Sec. Williams v. Gates 178 Williams v. Paul 192 Williams v. Rich 229 Williams v. Robinson 91, 98 Williams v. Schmidt 640 Williams v. Smith 85 Williams v. Tiedemann 255 Williams v. Vanderbilt 588 Williams v. Webb 521 Williams v. Wentworth 11, 471 Williams v. Williams 485 Williamson v. Railroad Co 302 642, 643, 645 Willingham v. Hooven 697 Willis V. Cutter 125 Willis V. Hammond 83 Willis V. Jernegon 7 Willis V. Railroad Co 288 Willis V. Twombley 27 Willis V. Webster 661 Willoughby v. Irish 384, 634 Wills V. Bank 131 Wills V. Ross 122 Willson V. McCormick 368 Willworth V. Leonard 12 Wilson V. Barker 450 Wilson V. Branch 64 Wilson V. Carson 402 Wilson V. Duncan 37 Wilson V. Force 464 Wilson V. Fuller 80 Wilson V. Harvey 234 Wilson V. Hentges 128 Wilson V. Hunter 90 Wilson V. Irish 600 Wilson V. McMillan 470 Wilson V. Milligfu 192 Wilson V. Mills Co 115 Wilson V. Picknick Co 665 Wilson V. Porter 66 Wilson V. Railroad Co 288, 293 424, 668, 676, 683, 684, 689 Wilson V. Ray 137 Wilson V. Voss 130 Wilson V. Wallace 377 864 TABLE OF CASES. Sec. Wilson V. Wilson 460 Wilson V. Winter 185 Wilton V. Tazwell 434 Wimarcl v. Lincoln 399 Winchell v. Hicks 634 Winchell v. Carey 192 Winchell v. Noyes 464 Winchester v. Howard 457 Winchester v. Thayer 66 Winchester Electric Light Co. V. Veal 173, 330 Windhand v. Deeds 460 Windmuller v. Pope 594 Winfield v. Dodge 192 Wingo V. Brown 444 Winkle v. Ketchani 61 Winn V. Investment Co 353 Winne v. Keeley 697 Winona, etc. R. R. Co. v. Blake 539 Winslow V. Anderson 30 Winsor v. Savage 430, 431, 432 Winston v. Beeson 270 Winston v. Dalby 376 Winter v. Hite 129 Winters v. Cherry 137 Wirebach v. Bank 24 Wiseman v. Thompson 665 Wiser v. Lockwood 13 Witherall v. Jones 196 Witherby v. Mann 389 Witlers v. Richardson 628 Wittkowski v. Harris 240,241 Wolcott V. Frissell 1 Wolcott V. Heath 598 Wolf V. Burk 101, 115, 403 Wolf V. Dietzsch 598, 599 Wolf V. Dozer 135 Wolf V. Express Co 583 Wolf V. Gerr 474 Wolf V. Shannon 402 Wolf V. Studebaker 687 Wolfe V. Howes 475, 589 Wolfe V. Luyster 168 Wolff V. Kappel 87 Wolff V. New Orleans 560 Sec. Womack v. Smith 674, 675 Wonsettler v. Lee 110, 479 Wood V. Armstrong 196 Wood V. Brady 531 Wood V. Carpenter . . 625, 626, 630 Wood V. Corcoran 130 Wood V. Fisk 374 Wood V. Ins. Co 404 Wood V. Leadbetter 509 Wood V. Losey 44 Wood V. Mayor 490 Wood V. McCann 284 Wood V. Moriarity 352, 357 Wood V. Sheldon 448 Wood V. Partridge 508 Woodford v. Hamilton 205 Woodford v. Levenworth 432 Woodland v. Newhall 356 Wood Reap. & Mow. Mach. Co. V. Smith 614, 639 Woodruff V. Berry 305 Woodruff V. Hill 258, 399 Woodruff V. Hinman 204 Woodruff V. Marshall 703 Woodruff V. Mississippi.. 278, 529 Woodruff V. Parham 551 Woodruff V. Wentworth. ..164, 204 Woods V. Armstrong. 178, 197, 202 Woods V. McGee 148 Woods V. Russell 675 Woodstock Iron Co. v. Exten- sion Co 163, 284, 285, 302 305, 324 Woodward v. Brooks 406 Woodward v. Fuller 640, 666 Woodward v. Newhall 369 Wooley v. Batte 437 Wooliver v. Ins. Co 185 Woolsey v. Jones 210 Wooster v. Sage 140 VVooten v. Hinkle 165 Wooten V. Miller 301 Wooten V. Wilcox 128 Worcester v. Eaton 57 Worden v. Sharp 137 865 TABLE OF CASES. Sec. Work V. Welsh 680 Workman v. Campbell 284 Worley v. Hineman 403 Worley v. Lyon 399 Worley v. Sipe 133 Wornock v. Loar 46 Worrall v. Munn 99 Wright V. Augusta 349 Wright V. Barnes 612 Wright V. Boiling 416 Wright V. Crabbs 330 Wright V. Dickenson 448 Wright V. Eisle 339 Wright V. Ellison 524 Wright V. Gardner 173,330 Wright V. Haskell • 595 Wright V. Johnson 632 Wright V. Jones 113 Wright V. Post 377 Wright V. Pucket 103 Wright V. Rindskotf 286 Wright V. Terry 348, 352 Wright V. Tinsley 667 Wright's Appeal 467 Wunch V. Shankland 335 Wycoff V. Mickle 87 Wycoff V. Meyers 646 Wynian v. Adams 66 Wyman v. Goodrich 128 Wynne v. Raikes 124 Wynne v. Wright 551 Wynne v. Wynne 532 Yale V. Wheelock 369 Yanger v. Skinner 12, 22, 25 Yates V. Boen 9 Yates V. Foot 382 Yates V. Lyon 60 Yates V. Milwaukee 540 Yates V. Robertson 199, 284 Sec. Yeates v. Groves 526 Yeatman v. Cullen 258 Yellow Stone Kit v. State. 270, 271 Yenni v. McNamee 513 Yerger v. Raines 418 Yerkes v. Saloman 255 Yerrinton v. Green 475, 592 Yick Wo V. Hopkins 547 Yoeman v. Mueller 121, 132 Yonoski v. State 188 Young V. Clark 391 Young V. Commonwealth 270 Young V. Drake 135 Young V. French 121 Young V. Glendenning 106 Young V. Hail 170 Young V. Hicks 341 Young V. Hill 222 Young V. Jones 515 Young V. Lambert 513 Yoimg V. Lyons 391 Young V. Overbraugh 106 Young V. Railroad Co. .64, 294, 337 Young V. Stevens 14, 22, 599 Young V. Telegr. Co 693 Younge v. College 485 Young Lock Nut Co. v. Manuf. Co 667, 668, 671 Zabriskie v. Smith 518 Zachry v. Nolan Ill Zaleski v. Clark 614, 639 Zanesville v. Gaslight Co. 534, 538 Zang Brewing Co. v. Bernheim 445 Zillmer v. Kreutzberg 175 Zoebisch v. Rauch 55 Zouch v. Parsons 27, 28 Zuck V. Gulp 628 Zuck V. McClure 594, 608 866 INDEX. (References are to the sections.) ACCEPTANCE— Sec. oral, of order in existence not within the statute of frauds.... 124 of bill of exchange in existence by parol is valid 124 what is — when question for jury 147 goods delivered subject to examination 148 by vendee — intention 150 acts which amount to 151 how proved 151 designation of carrier by vendee 152 of promise by third person 355 as to minors 355 of voluntary act of another — effect 457 voluntary acceptance of benefits — implied contract 458 of contract partly performed 477 orders given by one and filled by another — effect 478 of theater ticket with conditions 509 when necessary in rescission of contract, to make it effective. . . . 594 of work — partial payment as evidence of 652 of labor on building 664 ACCOMMODATION INDORSEE— defense of insanity 14 may avoid his indorsement, when 24 ACCOUNT STATED— by infant is voidable 27 fraud or mistake in — effect 427 whether a passbook is 428 burden of proof . . . 429 ACKNOWLEDGMENT— when defective — how cured 532 ACTIONS— See Remedies. by indorser against lunatic on note 14 to dissolve partnership — insane partner 15 by infant, as an affirmance of contract 65 can be sustained against infant for fraud 69 by infant to avoid contract 71 no action shall be brought— statute of frauds — meaning 100 867 INDEX. ACTIONS— ( continued ) gg^^ statute of frauds affects remedy 100 as to voidable and void contracts 101 to recover back money lost in gaming 259 261 constitutionality of statute to recover back money lost at gaming 260 to recover money won at a guessing contest 272 to recover for lobbying contract 284 for injury received by one — maliee 315 to enforce illegal contract 330 legality at the time of enforcement 332 against parties in combination not a corporation 334 for injury from combination of vi^orkmen 334 for malicious interference between master and servant 341 rights of parties. . 341 for malicious interference in any contract 342 by master for interference with his servant 344 doing an act legal within itself 345 fraudulent representations of third party 346 for servant to sustain action against third party, he must be dis- charged 347 when third party can maintain — contract for his benefit 348 against water companies 349 on contract for benefit of third person 355-357 brought by next of kin, for promise made for the benefit of his father 361 who may bring action on simple contracts 364 how brought against many promisors 367 covenant to not sue, effect 376 by joint obligees 376, 377 by joint creditors — how brought 382 how brought — joint debtors 386, 387 when surety can bring against co-surety 391 for collection of tolls 423 to recover forged check — negligence of depositor 428 to recover back money paid on a void contract 443 on implied contracts 444 for money had and received — when property is received 446 in illegal contracts 447 no consideration in contract — recovering back money paid 448 where vendor partially fails to deliver 448 to recover money voluntarily paid 449 under mistake of fact — effect 450 to recover back commission wrongfully paid the agent 451 to recover back taxes illegally paid 452 to recover money illegally paid for taxes and assessments ' . 456 waiving tort — suing in assumpsit 464 to enforce oral agreement to bequeath or devise property 466 868 INDEX. ACTIONS— (co)itinued) Sec. to recover for part performance 473, 474 to recover for part performance of void contract 479 under no obligation — part performance 480 to recover expenses of funeral 485 to recovery for part performance of void contract 479 for tort — election of actions 487 doctrine that the property taken must be sold 488 to recover money paid under duress 496, 497 payment of husband's debt by wife — duress 499 to recover money paid in compounding felony 500 to recover back money voluntarily paid 501 cannot be split up 521 reduction of time to bring — effect 528 limitations are part of the contract 528 changing procedure — effect on the contract 565 when may be brought for rescission of contract 594 when notice of rescission of contract 597 to recover back consideration — contract rescinded 599 to recover money back on a sealed contract — assumpsit 601 for constructive services 603 for services to be performed 604 for damages for rescinding contract for work on personalty 608 for damages for affixing machine to real estate — rescission of contract 609 when statute of limitations runs 628 on note on demand 628 time to bring against debtor absent from State — statute of limi- tations 632 by creditor out of State — statute of limitations ^ 633 statutes controlling the limitations for bringing suit are valid . . 636 for services received 651 ACTIONS EX DELICTO— infant is liable for 69 ACT OF GOD— preventing fulfillment of contract to marry — efl'ect 476 may excuse performance of contract 580 as to common carliers 582, 583 where law imposes a duty 584 failvire of consideration by act of God 586 intervention of the act of God 588 definition of 580, 615 that will excuse a common carrier to deliver goods 616 ACTORS— specific performance of contract 677 869 INDEX. ACTEESS— Sec. breach of contract by manager — duty of actress to seek other en- gagement 686 ADMINISTRATOR — See Executors and Administrators. when liable for debts 485 ADVERSE POSSESSION— of land — taking trees and stone — right of real owner 493 AFFIRMANCE— of insane person's contracts 21 necessity of ratifying contract made by minor 51 ■ when affirmed — valid ab initio 51 of infant's contract — what is 53 upon condition 54 on condition of infant's contract 54 time to affirm 55 silence as an affirmance 56 how are infants' contracts affirmed 65 of guardian's contract, by ward 75 of rescission of contract 600 by silence, of rescission 600 AFFREIGHTMENT— interstate contracts of 421 AGENCY— signing for principal — must have authority 99 power to sell land — not authorized to make deed 99 sale of principal's goods — parol warranty is part of consideration 140 when third party can be interested in contract — rights of 348 AGREEMENTS— contracts made in violation of statutes 173 peonage contracts 174 prohibition and penalty 175 malum prohibitum and m^alum in se 176 penalty imposed for administrative purposes 177 acts impliedly prohibited 178 what cannot be done by direct means 179 AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR— See Frauds, Statute of. what contracts are within the statute 133 contracts not within the statute 134 one year from the making thereof ... 135 parol lease of land for a year 136 part performance within a year — performance on one side 137 AGREEMENTS, STATUTE OF FRAUDS— SEVENTEENTH SECTION— application of statute 138 executed and executory contracts 139 taking back chattels after sale 140 price 141 8Y0 INDEX. AGREEIMENTS— ( continued ) Sec. amount of sale 142 sale of several articles 143 goods, wares and merchandise 144 delivery and acceptance 145 contracts for work and labor 146 what is an acceptance — when question for jury 147 goods delivered subject to examination — acceptance 148 intention 149 property in possession of third party 150 acts which amount to an acceptance 151 designation of carrier by vendee — delivery of goods 152 earnest and part payment 153 when part payment must be made 154 what constitutes part payment 155 in what property, part payment may be made 156 ALIEN— labor acts 422 object of alien labor acts 422 ALTERATION— of written contract, under the statute of frauds 81 of remedy 556 ANCESTOR— death of — running of the statute of limitations 631 APPEAL BOND— of infant is voidable 27 APPOINTMENT— to public office is not a contract 426 APPRENTICE— cannot be assigned over by master 519 ARBITER— condition in contract for 642 arbitration clause 643 decision of, must be pertinent 644 fraud 645 ARBITRATION— provision in contract for arbiter as to performance 642 clause of 643 the arbiter's decision must be pertinent 644 fraud 645 ARCHITECT— publishing his plans — right of property in 339 assignment of future wages — controlled by statute 515 assignment of wages forbidden by statute — effect 515 as arbiter in building contracts 643 ARREST— of servant — effect of on contract with master 578 8Y1 INDEX. ARTIST— Sec. contract with — cannot be assigned 519 agreeing to paint picture — death of — effect on contract 589 specific performance of contract 677 ASSESSMENTS— payment of — illegality of when payment is voluntary 456 ASSIGNMENTS — See Assignor and Assignee. by infant — when valid 30 for benefit of creditors 170 of insurance policy, valid in its inception — effect 267 of unearned compensation of ofiicer 283 of contract — stranger has no right in 348 of water contract by city 350 of judgment — is legal title transferred 395 of policy of insurance — wliat law governs 405 of property — interstate 406 voluntary for benefit of creditors 506 set-off against assignment 507 priorities 508 coupons — theater tickets 509 bills of lading 510 drawing drafts by consignor 511 bills of lading — negotiability 512 warehouse receipts 513 nature of warehouse receipts 514 in equity unearned wages 515 effect of assignor's discharge in bankruptcy 516 unearned salary of public officer 517 what is assignable 518 of personal trusts involving personal skill 519 of expectancies 520 partial assignments at law 521 partial assignments with consent of debtor 522 partial assignment — city as debtor 523 partial assignments in equity 524 difference between an equitable and legal assignment 525 of things not in existence — effect 525 when partial assignment will be sustained 526 modification by statute 527 of claim to be collected in another State — statute controlling is valid 540 ASSIGNOR AND ASSIGNEE— See Assignments. assignor of promissory note — guaranty of payment need not be in writing 128 receipt of property out of which to pay debt of another — must agreement be in writing 131 assignment for benefit of creditors 170 8Y2 INDEX. ASSIGNOR AND ASSIGI^EE— (continued) Sec. taking insurance policy valid in its inception 267 assignee of unearned salary — rights of 283 assignee of the property of a combination — notice of fraud 321 assignee taking property — rights of 340 when there is no privity of contract 340 assignee taking property to pay assignor's debts 352 assignment of insurance policy 405 assignment of property 406 rights of assignee in voluntary 506 rights of assignee of stolen bill of lading 512 rights of assignee of unearned wages 515 ASSOCIATED PRESS— whether a monopoly 322 ASSUMPSIT— for collecting tolls 423 will not lie for voluntary payment 430 creditor accepting voluntary payment — debt extinguished 430 when it lies for money paid by another 431, 432 lies for saving of another's property 435 does not lie on a sealed instrument 442 does not lie for express promise of record 442 when not implied 457 implied — waiving a tort 464 suing in — waiving tort 486 when tort may be waived 487 doctrine that the property must be sold 488 implied assumpsit lies for trees and stone converted 492 right of agent to bring 494 to recover money paid under a sealed contract 601 ATTORNEY— appointment of, by minor to confess judgment is void 28 fees — when infant must pay 43 procuring legislation — validity v. 285 fees of, in pension cases may be limited by Congress 540 when statute of limitations runs against payment of retainer . . . 628 ATTORNEY'S FEES— when payable by borrower — whether usurious 229 AUCTION— by-bidding — effect on sales , 165 English doctrine 166 stiptihition not to bid — efl'eet 167 AUCTIONEER— sale by — evidence of memorandum 87 AUTHOR— agreement to write a book — death of — effect on contract 589 contract to write services 677 873 INDEX. AVOIDANCE— Sec. of insane person's contracts 21 of sale by insane person 22 of contract — return of consideration by insane person 23 of contract by infant — a privilege, not a disability — they are compos mentis 26 of marriege contract — non-age 31 of infant's contract in shopping 38 of infant's contracts 57 as to personal contracts of infant 58 of personal contract by infant, when 58 of sale of real estate — when 58 what is a reasonable time to avoid 59 of infant's contract for service 62 of infant's beneficial contracts 63 return of consideration by infant 64 how is infant's contract avoided 65 who may avoid infant's contract 66 of infant's contracts cannot be by a stranger 66 can be made by privies in blood 66 cannot be by privies in estate 66 when avoided by infant's administrator 66 by infant of contract by action 71 BAGGAGE— implied contract to send on same train with passenger 424 BAIL — See Bailment; Bailee. indemnity of, by principal — illegal 129 indemnity by third person is legal 129 depositing money for security 129 BAILEE — See Bailment. liability of infant, as 68 when railroad company is as to baggage shipped — liability 424 of materials — loss — liability 575 BAILMENT— See Bailee. responsibility — of infant 68 of an article to be repaired — performance 575 BANKRUPTCY— of partner, effect on partnership 15 of infant — discharge of debts 57 discharge of laborer — etiect on assigned wages for the future. .515, 516 discharge of insolvent — efi'ect on judgment 578 discharge of principal — effect on surety's liability 635 effect of conditional sale 704 BANKS— depositor in — pass-book written up 428 when may recover back overpayment 450 874 INDEX. BANK'S COMMISSION— See Commission. Sec. taking — when usury 216 BARBERS— when may work on Sunday 188 BARGAIN AND SALE— of lunatic 9 deed of insane person — equal to a feoffment 21 BAR-MAIDS— i-egulation of occupation by legislature 544 BENEFIT ASSOCIATION— servant receiving benefits from — limiting master's liability 300 BENEVOLENT ASSOCIATIONS— rights of beneficiary 269 to whom benefit must be paid 269 BEQUEST— oral agreement to bequeath 465 BETTING — on horse races — whether gambling 263 BILLS AND NOTES— of insane persons 9 of infants, for torts, are valid 34 of insane persons — effect 14 of infant are voidable 27 of minor are voidable — but warrant of attorney is void 28 of emancipated minor are voidable 29 holder of infant's note must demand payment of him to hold indorser 66 holder of — guaranteeing its collection by parol is liable 128 confession of judgment on note does not make the contract to pay an executed contract 184 executed on Sunday — delivered on Monday — effect 185 note made on Sunday — void — in the hands of an innocent third party — effect 193 note dated on Sunday — delivered on secular day — effect 194 contracts executed on Sunday 195 discount of accommodiition paper — when usury 212 taking usury by national banks 232 renewal — tainted with usury 234 rights of innocent holder of note given for gambling contract. . . . 257 rights of innocent holder of note given for gambling contract in another State 258 payable in gold coin 278 what law governs — interstate 399 secured by mortgage of land 399 made to pay option contracts — payable in another State 413 given for liquor — another State law 413 875 INDEX. BILLS AND NOTES— (confmMcd) Sec. is a note payment 441 payment by bond — effect 441 selling forged paper — recovering back money paid 448 given to compound a felony — illegal 500 holder of stolen note with notice 502 in the hands of an innocent holder — subject of larceny 504 given for antecedent debts 504 in the hands of an innocent holder — stolen from owner 505 negotiability of coupons 509 negotiability of bills of lading 512 payable on demand — as to statute of limitations 628 note secured by mortgage — running of statute of limitations.... 629 part payment by one joint debtor — as to the statute of limitations 634 BILLS OF EXCHANGE— in existence — verbal acceptance is valid 124 to be drawn in the future are within the statute, as to acceptance 124 BILLS OF LADING— stipulation exempting common carrier from liability — notice.... 290 what law governs 421 as to assignment of rights of assignee 510, 511 negotiability of 512 BLACKLISTING— by employer — of union laborers 337 statute against 337 BOARD OF EDUCATION— contracting to employ only union labor — validity 301 compelling contractors to employ only union laborers — legality.. 317 BOARD OF TRADE— dealing in futures — when void 248 options — futures — margin 249 corners in grain 250 brokers 251 designation of transaction by different name 252 construction of gambling contracts 253 intent — deal in futures 254 selling commodities not in existence 255 parol evidence 256 rights of innocent holder of note given on option contract 257 BONDS— of infants with a penalty are voidable 27 coupons of — negotiability 509 BOOK ACCOUNTS— as evidence to place liability 126 BOOKMAKING— difference from pool selling — betting on horse races 264 8Y6 BONUS— Sec. for making a loan — when usury 216 BOUNDARIES— settlement of by infant is voidable 27 BOYCOTT— when illegal 341 by State — legality 341 rules controlling 341 BREACH — See Breach and Discharge. of contract — anticipatory, effect 594 of contract — giving party right to rescind 595 of building contract — what is 662 BREACH AND DISCHARGE— See Breach. object in awarding damages for breach of contract 682 rule for estimating damages 683 damages as to common carrier 684 sale of property for special purpose 685 for personal services — duty of laborer to protect himself 686 contract not for the use of some special instrumentality 687 part performance 688 appreciation in the value of land 689 uncertain and contingent damages 690 interest upon unliquidated damages 691 breach by telegraph companies 692 breach by telegraph company — mental suffering 693 contract to furnish special material 694 profits as damages — general rule 695 profits which would have been made 696 contingent profits not allowed 697 resale by purchaser 698 building contracts 699. BRIBE— contracts to bride — invalid 274 BROKERS— sale by — evidence of memorandum 87 acting without license — effect 198 making waging contracts — validity 251 of marriage contracts 275 BUCKET SHOP— dealing in commodities — contracts are illegal 162 BUILDERS — See Building Contracts. must perform their contracts in substantial performance 640 provision in contract for arbiter 642 arbitration clause 643 the arbiter's decision must be pertinent 644 fraud of arbiter 045 877 UiTDEX. BUILDERS — (continued) Sec. dispensing with the production of the architect'c certificate 646 time of performance 647 waiver of time of performance 648 BUILDING AND LOAN ASSOCIATIONS— definition of 219 when exempt from usury laws 219 must keep within the statute 220 when transactions are usurious 219, 220 BUILDING CONTRACTS— See Buildees. owner preventing performance 660 matters excusing delay 661 breach of — what is 662 owner of building promising to pay seller of materials — effect. . . . 663 risks during performance 665 part performance of 666 requisites of 668 when will a court of equity decree specific performance 668 slight defects — damages 699 BURDEN OF PROOF— upon whom 429 BURIAI^- of the dead — implied contract to pay expenses 485 BY-BIDDING — at sales — effect on purchase 165 when legal 168 BY-LAWS— control payment to beneficiary in benefit association | 269 CAPACITY TO CONTRACT— of parties of deranged mind 6 lucid intervals 6 CAPACITY TO MARRY— of insane person 13 CERTIFICATE— must be taken out by teacher, to draw his salary 201 of tax sale — retrospective act 557 of architect — effect 646 CESTUI QUE TRUST— when he may sue 364 when suit must be brought in the name of the trustee 364 CHANCERY— filing a bill in, takes the contract out of the statute of frauds. ... 85 CHARTERS— See Franchises. reservation in 2 when may be introduced as evidence as to a valid sale of chattels. .256 rights of grantee 534 878 INDEX. CHARTERS— ( con tinned ) Sec. exclusive franchise 535 State regulations of corporations 536 subsequent acts regulating railroad companies 537 establishing maximum rates 538 legislature must not destroy a business by establishing maximum rates 539 private contracts 540 reservation in charter 541 CHATTEL MORTGAGES— lien follows the property 402 danger clause cannot be changed by subsequent act 562 CHATTELS— wrongfully obtained — rights of true owner 505 CHECKS— verification of pass-book by clerk — duty of principal 428 how considered in the hands of an innocent holder 505 CHILD LABOR LAW— See Infants. violation — employment of minors 203 CHOSES IN ACTION— rights of assignee 508 when assigned — action brought in assignee's name 527 CITIES— liability for negligence of water company 349 assignment by city of water contract 350 CIVIL RIGHTS CASES— ticket to public entertainment — rights of vendee of ticket — Ameri- can doctrine 509 COAL STRIKE COMMISSION— result of — decision 338 COIN— gold clause in contracts — efiect 529 COLLATERAL PROMISE— comes under the statute of frauds 121 COMBINATIONS— See Industrial Combinations. of quasi-corporations to stifle competition 305 operation of 320 to suppress competition 320 in restraint of trade, general or partial 321 may be legal when not a monopoly 322 corporate trusts 323 trusts formed in Ohio and in New York — legality 324 Standard Oil Company — authority to do business 324 Sugar Refining Co. of New York — right to do business 324 pooling railroad business 324 rebates to shippers 325 879 INDEX. COMBINATIONS— (co«^,: recovering back after rescission of contract 599 ^ J* composition with creditors 700 C'GtJ^^SIGNOR AND CONSIGNEE— "consignor drawing on consignee — rights of parties 511 CONSPIRACY— to i"aise price of stock — illegal contracts — 163 to stifle competition at auction sales — effect 165 English doctrine 166 CONSTRUCTION— See Interpretation. CONTRACTS— of insane persons 9 of lunatics, after inquisition found 12 avoidance of by insane person 23 of insane persons — relief in equity 25 of infants are void, voidable or valid 26 of infants — when void 28 of infants — when valid 30 of infants required by law are valid 35 of infants when shopping — validity of 38 of infant for necessaries are valid 39 of infant for repairs on his real estate, voidable 42 of infants — necessity of ratification 51 when ratified valid ah initio 51 882 INDEX. CONTRACTS— ( continued ) Sec. of infants — how ratified 52 what is ratification ' 53 of infants what is a ratification 53 ratification on condition 54 time to ratify 55 silence as a ratification 56 of infants — avoidance of 57,58 between infants — avoidance 57 as to personalty — when may be avoided by infant 58 as to realty, by infant, when avoided 58 of partnership by infant — his liability 60 of infants for service 62 beneficial to infants — avoidance of 63 of infants — who may avoid 66 created by law — not within the statute of frauds 79 executed, not within the statute of frauds 80 executed on one side, not within the statute of frauds 82 what law governs 115 of indemnity — whether within the statute of frauds 129 abandoning work — owner of work agreeing to pay workmen whether within the statute of frauds 132 within the statute of frauds 137 not within the statute of frauds, as to time 138 application of the 17th section of the statute of frauds 138 executed and executory, governed by the statute of frauds 139 of work and labor — when within the statute of frauds 146 to defraud are void 162 to buy stock at a fictitious premium. — effect 163 to publish libel is illegal 164 to prevent competition at sales, are illegal 165 not to bid at auction sales — eii'ect 167 made in violation of law 173 of peonage — effect 174 prohibition and penalty 175 malum in se — illegal . . . 176 malum prohibitum — rvalidity 176 against statute — penalty 178 prohibited by law 179 made on Sunday at common law 180 Sunday contracts — PJnglish laws 180 to be performed within and without the statute — when interstate commerce 182 made on Sunday — prohibition 183 no prohibition 184 negotiated on Sunday — completed on Monday — effect 185 883 INDEX. COIHTRACTS— (continued) Sec. within the prohibition of Sunday contracts 186 void — made on Sunday — ratification 19? made on Sunday — rights of innocent third parties 193 dated on Sunday — effect 194 made on Sunday — executed and executory 195 prohibited by statute 196 of sale of prohibited articles 202 void in part and valid in part 204 action on — partly good, partly bad 204 hiring or renting of securities, when usury 218 having an independent existence — not usury 235 wagers — validity in England 245 wagers — validity in the United States 246 statutory provisions as to wagering contracts 247 on option — futures — margins 249 corners in grain 250 character of — designated by the parties 252 options, M'hen valid 254 selling commodities not in existence 255 as controlled by public policy 274 to furnish party to marry 275 stipulation that false representation shall not avoid 276 for the welfare of children 277 payable in gold coin 278 influencing appointment to office 280 by newspaper to advance the interest of a candidate 280 compensation to officer by private person 281 to control the regular administration of justice 282 to procure legislation 284 to use improper influence — illegal 286 for securing a pardon 287 special contract of railroad company to haul circus cars 288 express contract by express company limiting its liability 289 limiting liability of master 299 of private of quasi corporations — validity 301 locating right of way 302 locating railroad stations 302 to suppress competition 304 made by corporations giving exclusive privileges 308 in restraint of trade — validity 309 of combinations — when reasonable 309 in restraint of trade — reasonableness 310 in restraint of trade — English doctrine 311 American doctrine in restraint of trade 312 construction of in retraint of trade 316 884 INDEX. CONTRACTS— (confimted) Sec. (dealing with exclusive persons 316 sale of secret process 316 sale of good-will of business 316 of monopoly in restraint of trade 320 legal — combinations of corporations 322 rebates to shippers — effect 325 combinations to restrict the right to contract — legality 334 persons affected 339 privity of — who affected 339 meeting of minds — right of privacy 340 where there is no privity of parties 340 as to boycotts 341 duty not to interfere 342 privity of party — stranger's rights 348 for the benefit of third parties 352 assumption of mortgage debt — right of mortgagee to sue 353 must be something more than a mere promise 354 acceptance by third person 355 for the benefit of third persons — modification of the rule 356 exceptions to the modified rule 357 party to the consideration — trust 358 promise as to agent 359 English doctrine 360 next-of-kin — right to sue 361 covenants 362 covenants — another rule 368 who may bring suit on simple contract 364 description of the debt 365 agreement to save harmless 366 many promisors — siiit against 367 oral merged in special — effect 370 when several 382 joint subscribers 383 joint and several 386 release of several and joint promisors by law 387 capacity of parties ' 397 validity — how determined 408 as to the payment of interest — law of another State 417 agreement as to what law shall govern 420 impairing the obligation of — dismissal of public ofiice 426 no implied contract between parties making an express contract. . 442 when void, are a nullity 443 difference between express and implied 444 implied — when receiving money which belongs to another 445 a party may contract with whom he pleases in express contract. . . 457 885 INDEX. CONTRACTS— ( continued ) Sec, when private cannot be regulated by the legislature 540 law enters into when made 555 nature of 568 subsequently arising — performance 575 in commercial transactions 574 bailment of article to be repaired 575 executory contracts can only be rescinded 593 CONTRACTUAL RELATIONS— persons aflected 339 meeting of minds — right of privacy 340 master and servant — interference of third parties — boycott 341 duty not to interfere in any contract 342 restricting the rule to servants 343 when the period of employment is not certain 344 doing an act which is legal within itself 345 fraudulent representations 346 to sustain an action the discharge must take place 347 as to priorities of the parties 348 water companies — rights of third parties 349 assignment of city contract 350 no priorities of parties or of consideration 351 CONTRIBUTION— principle of 388 when surety may claim 388 payment by surety — in what property 389 right to receive 390 by joint wrongdoers 394 in cases of indemnity 394 among sureties r 434 right to have 436 relation of parties 43& among wrongdoers 437 among wrongdoers — exceptions to general rule 438 CONVERSION— of property — waiving tort 488, 489 CONVEYANCES— of land — specific performance 667 of land — failure of — ^liquidated damages 671 CORNERS— in grain, on board of trade — validity 250 combination of parties to advance price of grain 250 market price — what is 250 CORPORATE TRUSTS— industrial and commercial combinations 323 pooling railroad business 324 886 CORPORATE TRUSTS— (continued) See. rebates to shippers 325 monopoly in interstate and international trade 326 as to labor 327 antagonism to labor 327 sngar trust agreement, for protection of corporations against labor 327 CORPORATIONS— private contract of quasi corporation 301 locating right of way and stations of railroads 302 use of franchises 303 combination of quasi corporations to stifle competition 305 telegraph and telephone companies must not discriminate 307 giving exclusive privileges • 308 right to create a monopoly 320 restraint of trade — general or partial 321 legal combination of 323 forming trusts 323 pooling of railroad business 324 rebates to shippers 325 monopoly in interstate and international trade 326 corporate trusts and labor 327 what law governs interstate contracts 395 member of — paying corporate debt 432 making voluntary payment — effect 449 must fulfil implied contracts 459 liability to promoters 463 having money misappropriated by treasurer — rights of 503 collection of debts in a State where they have no situs 532 as grantee from State 534 when exclusive franchises are given 535 exclusive franchises 535 regulated by the State 536 State regulation of 636 subsequent acts regulating railroad companies 537 State establishing maximum rates 538 legislature must not destroy a business by establishing maximiun rates 539 private contracts 540 reservation in charter 541 as to the running of the statute of limitations 630 enforcing contracts against 668 COPYRIGHT— publisher trying to create an infringement by reservation 339 COUNTER-CLAIM— Betting up — waiver of tort 490 887 INDEX. COUPONS— Seo. given as interest notes — drawing interest — not usury 222 interest coupons — not usurious 224 when negotiable 509 COUPON TICKETS— of carriers — riglits of connecting lines 294 COVENANTS— of infant to carry money are voidable 27 for use and occupation are valid Ill limited as to space — restraint of trade — English doctrine 311 as to limitation of time and space 312 test of reasonableness as to restraint of trade 313 the latest statement as to reasonableness in the restraint of trade. 314 to benefit a third person 362 another rule 363 to save harmless — who can bring suit 366 not to sue — effect 376 when pleadable 376 or debt will lie for action on sealed instrument 442 part performance of void contract 479 of warranty of assignment of expectancies 520 excused by act of law 578 COVERTURE— disability of, concurring with the privilege of infancy — when deed may be affirmed 32 CRIMES— committed by the beneficiary in life insurance — effect 545 DAMAGES— for property destroyed — promise to pay by third person must be in writing 122 measure of, for trees and stone taken from another's land 492 recoverable for rescission of contract 610 object in awarding 682 rule for estimating for breach 683 common carrier's breach 684 sale of property for special purposes — breach of contract 685 breach of contract for personal services 686 contract not for the use of some special instrumentality 687 part performance 688 appreciation in the value of land 689 contracts and contingent damages 690 interest upon unliquidated 691 breach by telegraph company 692 breach by telegraph company — mental suflering 693 contract to furnish special material — breach of 694 profits as damages — general rule 695 888 INDEX. DAMAGES— ( continued ) Sec. profits which would have been realized 698 contingent profits not allowed 697 resale by purchaser 698 building contracts — breach of 699 DATE— of contract made on Sunday — dated on Monday — effect 185 validity of contract — delivery 185 note dated on Sunday — executed on another day — efl'ect 194 antedating note — interest payable in advance, when usury 217 DEATH— of ancestor — running of the statute of limitations 631 DEBT. or covenant will lie for action on sealed instrument 442 DEBTOR AND CREDITOR— a creditor cannot disaffirm an infant debtor's sale 66 collateral promise to pay debt of debtor — within the statute of frauds 121 liability of person to pay debt of another — five essentials 122 to whom promise to pay debt of another must be made 123 promise to pay debt of another promisor benefited 125 release of original debtor — novation — whether within the statute of frauds 130 assignment for benefit of creditors 170 secret preferences in insolvency — partieeps criminis 172 limiting amount of debt in the insurance policy 268 fraud in account stated — effect 427 depositor in bank — relation to bank 428 third voluntarily paying creditor who accepts payment — effect. . 430 voluntary payment of another 430 when law creates an agreement to pay the debts of another 431 payment of debt of another — obligation 431 payment of debt of another — no assumpsit is raised 432 absence of debtor from State — running of the statute of limita- tions 632 absence of the creditor from the State — running of the statute of limitations 633 composition with creditors 700 preferring separate creditors 701 composition with part of the creditors 702 DECEIT— of infant — liability of 67, 68 DECREE— not binding on infant in ventre sa mere 37 889 IKDEX. DEED — Sec. of lunatic, feoflFment 9 of insane person, how ratified 21 of insane person — affirmance or avoidance of 21 of insane man cannot be set aside by a stranger 25 of infant is voidable 27 of trust by infant — how ratified 53 of infant transmits title 57 of minor — how avoided 57 of infant, how aflSrmed 65 when decreed — part performance 107 release must be by deed 379 what law governs 403 DEFALCATION— money misapplied — rights of third persons 503 DEFENSE— oral sale of land set aside 112 waiver of the statute of frauds 114 DEFINITION— of necessaries for infant 39, 40 DEL CREDERE— delinition of 87 DELIVERY — See Delivery and Acceptance. of note or memorandum of contracts in writing 84 of possession, covipled with making valuable improvements, or the payment of the purchase price, is part performance 102 of land — parol gift — effect 106 of property in possession of third party 150 designation of carrier by vendee 152 of instrument made on Sunday, delivery on Monday — effect 185 of note dated on Sunday, on secular day — effect 194 of insurance policy, completes contract 404 is essential to a gift 425 of bill of lading — effect 511 of warehouse receipt — effect on the property represented 513 contract to deliver gold coin 529 by vendor — executed sale cannot be rescinded 593 DELIVERY AND ACCEPTANCE— See Delivery. of goods — within the statute of frauds 145 may not be at the same time 145 DE LUNATICO INQUIRENDO— writ of — contract of lunatic 12 DEPOSITARY— holding stolen money with notice 502 890 INDEX. DEPOSITOR— Sec. in bank — duty to examine pass-book 428 over-paid — recovering back money 450 DESCRIPTION— of parties, in memorandum of sale 88 of subject-matter in memorandum under statute of frauds. . . .91, 92 of the debt — benefit of third person 365 DEVISE— parol promise to devise — within the statute of frauds 108 oral agreement to devise property 465 oral agreement — enforced in equity 466 agreement to devise to a certain person — effect 667 DISAFFIRMANCE— See Avoidance. DISCHARGE — See Breach and Discharge. of laborer in bankruptcy — effect on future wages assigned. . . .515, 516 DISCOUNT — See Commission; Commission and Discount. on accommodation paper — usury 212 accommodation paper in hands of innocent party — usury 212 DISCRIMINATIONS— suppression of competition 304 combination of quasi-public corporations 305 by common carriers 306 by telegraph and telephone companies 307 giving exclusive privileges 308 in favor of agriculture products — restraint of trade 321 by railroads — rebates to shippers 325 against business men 335 aginst imported goods 551 DISSOLUTION— of partnership by bankruptcy, death or lunacy of partner 15 of partnership — rights of partners 431, 433 DISTRESS— of goods — released by third party 435 for rent — when may be abolished 560 DIVORCE— is a proceeding in quasi in rem 400 liability of father for necessaries of children 470 DOCTOR— See Physician. DOMICII^- of party seeking divorce 400 of owner of personalty governs 407 of debtor — absence from State — running of the statute of limi- tations 632 DRAFTS— drawn by consignor — rights of parties 511 third party taking bill of lading 511 891 INDEX. DURESS— Sec. payment under — eflFect 452 payment under 455 making arrest 455 money obtained under — recovery 496 of goods — right of injured party 497 by imprisonment — legel or illegal 498 threats of imprisonment 499 EARNEST AND PART PAYMENT— distinguished under the statute of frauds 153 when part payment must be made 154 what constitutes part payment 155 in what property part payment can be made 158 EDUCATION— as a necessary for infant 41 whether a necessary to infant 43 EIGHT-HOUR LAW— is it class legislation 4 under the police power 4 legality of 4 ELECTION— waiving tort and suing in assiimpsit 487 doctrine that the property must be sold 488 bets on election — rights of stakeholder 502 EMANCIPATION— of infant — rights of 29 illegality of cannot be set up by strangers 29 of infant by marriage 29 of child by father— effect 470 EMPLOYER AND EMPLOYE— under the truck system 2 putting child to do prohibited labor — effect 203 unfair firms, listed by unions 335 picketing by employe 336 employer may list strikers 337 boycotts by employe 341 malicious interference between, by third party 343 when the period is not certain — malicious interference 344 employer agreeing to protect employe from strikers 348 employe recovering for extra services 462 effect of contract of employe not to marry 474 default to complete service 474, 475 substantial performance of contract — effect 477 right of employe to assign unearned wages 515 partial indebtedness cannot be assigned 621 892 INDEX. EMPLOYER AND EMPJjOYE— { continued) Sec. effect of statute compelling employers to give reason for discharge of employes 537 regulating hours of work of women and minors 544 death of employer — effect on contract 592 wrongful discharge of employe 602 constructive service 603 service to be performed in the future 604 duty of employe to seek other work 605 offer to render service 606 mode of rescission by employer 607 employing another to work on personalty 608 employing another to affix machine to realty 609 damages recoverable 610 after notice of rescission — duty of the employe 611 contract of hiring — employe guarantees satisfaction 614 cause for discharge of servant 614 hiring contracts — implication of discharge 618 reservation of wages payable at certain intervals 619 extra services 620 contract of hiring — as to statute of limitations 628 to perform work and furnish materials 639 substantial performance — ^good faith 640 time of perfomance 641 meaning of satisfaction in doing work as to the employer 653 EMPLOYMENT BUREAU— run by the State — boycott illegal 341 ENGINEER— as arbiter in building contracts 643 fraud of — as arbitei- — effect 646 ENLISTMENT— of infant in the army, when valid 36 ENTRANCE FEE— to enter horse racing contest, whether gambling 263 ESTOPPEL— of infant by his deceit, misrepresentation as to age 67 of infant in equity 70 fraud in contract — cannot be set up 276 EVIDENCE— parol evidence cannot vary written contract 81 to take the contract out of the statute of frauds 86 to identify parties to memorandum 89 parol, to apply the description to the parties in memorandum .... 89 to identify agent or principal 90 to place liability for sales 126 of acceptance 151 893 IITD'EX. EVIDENCE— ( continued ) Sec. parol evidence cannot vary representations in writing 160 of usury — when sufficient 236 of usury — burden of proof of usury 239 to show valid sale of articles 256 of acceptance of benefits 458 partial payment as evidence of acceptance of work 652 EXCHANGE — See Premiums and Exchange. of property by insane person — mental capacity 21 of property by infant is voidable 27 EXCURSION TICKET— limiting liability of common carrier 291 EXECUTION AND LEVY— by creditor on joint debtors 370 EXECUTIONS— selling property under limiting amount 565 EXECUTOR AND ADMINISTRATOR— See Administrator. contracts under the statute of frauds 117, 118 forbearance — statute of frauds 119 special promise 120 EXEMPTIONS— of married debtor cannot be waived 515 laws of, may be changed 558 EXPECTANCIES— may be assigned 518, 520 mere possibility cannot be assigned 518 EXPENSES— taking legal rate of interest and adding expenses — when usury. . . 227 EXPRESS COMPANIES— liability as to their own negligence 289 notice regulating amoimt of money carried 289 failure to deliver goods — mental suffering as damages 693 FEES — See Attorney's Fees; Entrance Fees. established by ordinance cannot be excessive 198 of attorney — paying by borrower — whether usury 229 FELONY- compounding of — duress 500 money stolen and paid on debts cannot be reclaimed by true owner 504 FEME SOLE— contracts of, for services — not to marry 474 FEOFFMENT— of lunatics — ^voidable 9 deed of insane person equivalent to 21 FERTILIZERS— sellina: without a license — effect 202 894 INDEX. FOEBEARANCE— Sec. of executor to collect — must it be in writing 119 to collect debt — usurious agreement 206 FORECLOSURE— of mortgage — paying attorney's fees — whether usury 229 interest on debt — how computed 242 interest must not be compoimded 242 of real estate mortgage — what law governs 403 extending time of redemption 566 FOREIGiS" INSURANCE— policy — what law governs 404 FORGERY— of check — examination of pass-book by clerk who made the for- gery — liability of principal 428 FOURTEENTH AMENDMENT— object of 1 FRANCHISES— See Charters. use by corporation 303 will be strictly construed 534 must be created by express grant 534 when exclusive 535 FRAUDS — See Frauds, Statute of. of infant in contracting — effect 57 of infant, as to age, liability of 67, 68 infant responsible for 69 bucket shop dealings 162 in assignments for benefit of creditors 170 composition agreements with creditors 171 in secret preferences of assignor — insolvency 172 in an account stated 427 in writing up pass-book — effect 428 in an account stated — effect 429 liability of party guilty of 440 money fraudulently obtained — implied contract 440 receiving benefit of 503 receiving stolen money to pay debts — rights of owner 504 of principal — liability of surety — statute of limitations 635 the arbiter must act in good faith for his decision to be bind- ing 645, 646 in composition agreement with creditors — effect 701 FRAUDS, STATUTE OF— waiving of contract by parol — English doctrine as to labor 648 waiving written contract to work by parol — American doctrine. . . 648 contract to furnish special material 694 FREE PASSES— of common carriers — liability on 295 S95 INDEX. FUNERAL EXPENSES— Sec. implied contract to pay 485 FUTURES— dealing in — when valid 248 intent — deal in futures 254 when sale of — when valid 413 not gaming contracts 413 GAMBLING CONTRACTS— law of the place — gambling contracts 258 recovering back money lost i 269 constitutionality of statute to recover back money lost in wagering contracts 260 action to recover back money lost in gambling contract 261 oflfering a reward or premium , 262 entrance fee — competitions at horse racing 263 bookmaking and pool selling 264 difference between wager and premium or award 265 GAMING — note given for — another State law 413 a future delivery of commodity 413 rights of stakeholder , 502 GARNISHMENT— of wages already assigned 515 GIFT ENTERPRISES— giving trading stamps is not 270 GIFTS— of infant are voidable 27 executed by infant — avoidance 66 parol — not taken out of the statute of frauds 102 parol — of real estate — when enforceable 106 gratuitous distribution of property is not a lottery 271 effect of statute regulating 271 no implied contract to revoke , 425 GOLD COIN— as consideration of contract 278 GOODWILI^— of business — sale of — restraint of trade 319 sale of physician's practice 319 sale of school — rights of vendor 319 GOODS, WARES, AND MERCHANDISE— what included 144 GRACE— days of — what law governs — interstate 399 GRAIN DEALERS— combination to suppress competition 320 896 INDEX. GUARANTOR— Sec. when the consideration is original — effect — paying debt of another 123 GUARANTY— expressing consideration 96 must be in writing 96 of note before and after delivery 96 employe guaranteeing satisfaction 614 GUARDIAN— of insane persons — restoration of reason — effect as to contracts.. 10 furnishing necessaries to lunatic 11 and ward tenants in common — method of partition 37 right to contract for ward 72, 73 title to ward's property 74 personal liability of 75 of lunatic — rights of 121 GUARDIAN AD LITEM— for infant in partition 37 GUESSING CONTEST— winner cannot recover money won 272 HEIRS— assignment of expectancies 520 HOMESTEAD— exemption of — what law governs 558 HORSE RACING — offering a reward or premium 262 entrance fee — competition 263 HOTELKEEPER— contract with — cannot be assigned 519 HUSBAND AND WIFE— services — implied contract 456, 460, 461 implied agreement to furnish wife necessaries. . 468 wife aiding her husband — tort 495 ILLEGAL CONTRACTS— See Conteacts. cannot be enforced 161 agreements to defraud others — bucket shops 162 agreement to buy shares of stock at fictitious premium 163 of libel , 164 auction sales — by-bidding 165 auction sales — English doctrine 166 stipulation not to bid at auction sales 167 by-bidding — when legal 168 the purchase of property on joint account 169 wagers 244 wagers — liability of . 245, 246 when against public policy 274 sale of offices 279 897 INDEX. ILLEGAL CONTRACTS— ( continued ) Sec. influencing appointment to office 280 compensation in office by private person 281 controlling the regular administration of justice 282 assignment of unearned compensation 283 contracts to promote legislation — lobbying contracts 284 compensation for professional services in office 285 use of improper influence 286 contract for securing a pardon 287 to agree not to contest a patent 328 inforcement of 330 test of illegality 331 test of 331 legality of time of enforcement 332 no right of action on 447 loaning money 447 ILLEGITIMATES— parent bound to upport as if legitimate 33 IMPAIRMENT OF OBLIGATION OF CONTRACTS— reduction of periods of limitations 528 gold clause in contracts , 529 salaries of public officers 530 decisions under prior statutes 531 retrospective laws 532 conflict of laws 533 IMPLIED CONTRACT— of common carrier in transporting goods beyond its own line. .... 290 as to photographer's rights over photograph 340 definition of 423 as to tolls 423 of railway to send baggage on same train with passenger 424 as to gifts , 425 impairing the obligation of contract 426 fraud and mistake — eff"ect 427 pass-books — writing up 428 burden of proof ( 429 distinguished from express 444 allegation in declaration i 444 receiving money which belongs to another 445 receiving property 446 illegal contracts 447 want of consideration — recovering back money paid 448 voluntary payment with knowledge of the facts 449 payment under mistake of fact 450 agent of both seller and purchaser — payment of commission 451 mistake of law , 452 898 INDEX. IMPLIED CONTRACT— (con^inMed) Sec. mistake of law in equity 453 compromise 454 duress 455 payment of taxes and assessments 456 voluntary benefits conferred , 457 voluntary acceptance of benefits 458 municipal corporations 459 family relations — benefits received 460 services of a supposed wife 461 extra services 462 corporation's liability to its promoters , 463 waiving tort 464 oral agreement to bequeath or devise property. 465 enforcement in equity and in law 466 parol contracts 467 necessaries for wife 468 necessaries for minor — money furnished by another 469 father liable for necessaries for minor children 470 necessaries for insane person 471 liability of insane person's estate 472 part performance — quantum meruit 473 wilful default — wages i 474 default not wilful — personal services , 475 promise to marry 476 substantial performance 477 order given by one and filled by another 478 part performance under a void contract 479 under no obligation to j^erform — part performance , 480 failure to pay in a manner agreed to 481 part performance — rescission of contract 482 work and labor 483 physician's services 484 burial of the dead 485 waiving the tort and suing on the implied contract 486 when waiver may be made 487 doctrine that the property must be sold — tort 488 doctrine that the property need not be converted into money — tort. 489 counter-claim or set-off 490 privity of contract 491 implied assumpsit lies for trees and stones severed and converted. . 492 when wrongd'^er has auverse possession of land 493 right of agent of injured party to sue in assumpsit 494 several tort-feasors 495 duress 496 duress of goods 497 8ft9 INDEX. IMPLIED CONTRACT— (con^iwMed) Sec, imprisonment 498 threats of imprisonment 499 compounding felony , 500 voluntary payment of money 501 as to third parties with notice , 502 receiving benefits of fraud — agency 503 money received in payment of debts 504 chattels wrongfully obtained , 505 IMPOSSIBLE CONTRACTS— impossible of fulfillment . 568 difficulty and hardship 569 condition precedent 570 nonexistence of subject-matter 571 subject-matter ceasing to exist ; 572 impossibility of performing a contract subsequently arising 573 in commercial transactions 574 bailment of an article to be repaired 575 excused by act of law 576 two ways of performance 577 judgments and other judicial processes , 578 promisee preventing performance 579 implied condition as to contingent impossibility of performance. . . 657 implied condition of contracts 658 what implied conditions attach to a contract 659 IMPRISONMENT— payment of money to prevent 498 money voluntarily paid 498 threat of 499 IMPROVEMENTS— and possession as part performance 105, 100 IMPULSIVE INSANITY— suicide of insane person 17 INDEMNITOR AND INDEMNITEE— must the agreement to indemnify be in writing 129 INDEMNITY— when must be in writing 96 whether within the statute of frauds 129 of bail by principal — illegal 129 when third party can sue 366 among wrongdoers 394 wrongdoers cannot have 439 for rescission of contract i 608 INDORSEMENT— of infant is voidable 27 of note on Sunday 186 900 INDEX. INDUSTRIAL COMBINATIONS— Sec monopoly — contracts in restraint of trade 320 restraint of trade — general or partial 321 legal combinations 322 corporate trusts 323 pooling railroad business , 324 rebate to shippers 325 monopoly in interstate and international trade 326 corporate trusts and labor 327 INFAI^TS— contracts of, are void, voidable or valid 28 who are at common law 26 majority reached by, in different States 26 privilege of, given for their protection 26 contracts of — distinction between voidable and void 27 became emancipated by marriage 29 emancipation of by parents — effect 29 valid contracts of 30 must support his family 30 may assign his property — when 30 may make a valid contract to support his bastard child 33 , notes for torts of, are valid 34 recognizance of, is valid 35 enlistment in armj" — when valid 36 partition by, when legal 37 validity of shopping contracts 38 wife of — her necessaries are also his 40 repairs on real estate, not a necessary 42 going into business — necessaries 44 living at home with his father — necessaries 45 cardinal tenets as to what are necessaries for infant 46 must support family 47 payable of their debts by another — effect 49 method of ratifying contracts 52 ratification of contract on condition 54 silence as a ratification 56 avoidance of contract 57 when contracts for personalty may be avoided 58 selling land — entering thereon and taking rents and profits 57, 58 what is a reasonable time to avoid a contract 59 how are partnership contracts avoided 60 bona fide purchaser from — title transferred 61 contracts of service — disaffirmance 62 avoiding beneficial contracts 63 return of consideration by infant 64 how can they afiirm or disalfirm their contracts 64 901 INDEX. INFANTS— ( continued ) Sec. who may avoid infant's contracts 65 estoppel for deceit 67 as bailee — liability of ^ 68 for acts ex delicto 69 prohibited work — validity of laws 203 contracts for their welfare 277 promise by third party — acceptance 355 married husband must furnish necessaries for his wife 468 necessaries for 469 necessaries — implied contract 469, 470 regulation of hours of labor 544 right to specific performance 669 INJUNCTION— against unlawful interferenco in the business of others 335 INNKEEPERS— loss of goods by act of God 585 loss of goods by act of public enemy 585 contract of clerk to forward letters and baggage of guest 585 IN PARI DELICTO— effect on contracts 176 note to compound a felony — illegal 500 INQUISITION OF LUNACY— when found — contracts of lunatic 12 INSANE DELUSIONS— of parties — power to contract 8 what is 8 INSANE PERSONS— what is insanity 5 void, voidable and valid contracts of 9 restoration of reasons — contracts 10 third party furnishing necessaries 11 contracts for necessaries 11 marriage of 13 validity of their notes 14 can he be adjudged a bankrupt 15 as partner — efiect 15 taking out life insurance 16 affirmance and avoidance of contracts 21 bona fide purchaser from 22 avoiding sale to hojia fide vendee 22 contracts of — relief in equity 25 liable for necessaries 471 liability of his estate for necessaries 472 INSANITY— See Insane Persons. 902 IWDHX. INSOLVENCY — See Composition Ageeements. See. assignment for benefit of creditors — effect 170 composition agreement 171 secret preferences 172 of co-surety — liability of co-surety 391 assignment for benefit of creditors 506 set-off against assignee 507 priorities in 508 of vendee on conditional sale — effect on the vendor's rights 704 INSPECTION LAWS— inspection of chattels for sale according to law — failure to inspect 202 INSTALLMENTS— payment of interest — how made 242 by the month or week — to draw suit of clothes — ^validity 272 failure to pay — breach of contract ,. . . 662 IN STATU QUO— avoiding insane person's contract — placing in statu quo 22 American and English doctrine 22 avoidance of insane person's contract — placing in statu quo 25 INSURANCE — See Insukance Contracts. on insane person 16 contract of infant — ^voidable 46 oral contract for — not within the statute of frauds 80 policy dated and delivered on Monday — insured examined on Sun- day — effect 185 contracts — what law governs 404 assignment of policy — interstate 405 when money paid for, may be assigned 518 regulation of, under police power , 545 INSURANCE CONTRACTS— See Insurance. wagering contracts of insurance 266 assignment of policy 267 limiting amount of debt in 268 benevolent associations 269 INTENTION— as to completion of sale 149 necessary to constitute usury 208 to deal in futures 254 as controlling in interstate contracts 396 as to smuggling — contracts 414 as to what place shall govern the rate of interest — law of another State 417 INTEREST— agreement to pay by infant is voidable 27 when taking above legal rate — usury per se 208 on loans above legal rate — usury 210 903 INDEX. INTBRBST— (continued) Sec. taking more than the legal rate — accommodation paper — usury. . .; 212 taking personal property as interest when usury 213 payment of quarterly or semi-annually is not usury 216 payable in advance — when usury 217 coupon notes drawing, not usury 224 recovering back usurious interest 225 computation of interest — compounding — when usury 226 taxes and expenses — taking legal rate besides — usury 227 commission and discount — usury 228 mistake in taking too great amount — effect — usury 233 on renewal notes and mortgages, when usury 234 place of payment — usury — conflict of laws 240 payment of may be controlled by contract. 241 computation at stated periods — as to usury 242 payment on mortgage debt — how computed 242 when does the lex loci solutionis control payment of 399 usurious — another State law 417 changing rate of, on judgment 563 reducing rate of, in redemjJtion 564 upon unliquidated damages 691 INTEKNAL EEVENUE— license fees imposed on attorneys — failure to take out license 199 INTEKNATIONAL COMMERCE— how regulated 323 INTERPRETATION— of statute — prohibition and penalty 175 malum prohibitum and m,alum in se — statutes 176 of Sunday contracts — constitutionality of 181 of contracts made on Sunday 183 no prohibition of Sunday contracts , 184 of law prohibiting barbers to work on Sunday 188 what are works of necessity to be performed on Sunday 188 when telegrams are work of necessity 188 ratification of void contract 192 of contracts prohibiting contracts 196 of ordinance — establishing an exorbitant fee for doing business. . . 198 of law favoring old soldiers 198 of laws imposing license fee 199 of license law imposed on physicians 200 right of physician to refuse to call upon patient 200 a law requiring teacher to take out certificate to teach 201 of child labor— law 203 contracts void in part and valid in part 204 what law governs as to usury 237 of gambling laws 253 904 INDEX. INTERPRETATION— (continued) Sec. intent — deal in futures ^ 254 a statute to recover back money lost in gaming 260 a statute prohibiting the giving of trading stamps 270 of contract to employ only union labor 301 of contracts in restraint of trade 315 of contract in restraint of trade 316 dealing with exclusive persons 316 sale of secret process 316 sale of goodwill of business 316 of interstate contracts 398, 419, 420 courts' decisions — authority of 531 jurisdiction of U. S. Supreme Court 531 of contracts — conflict of laws 533 controlling effect of State court decisions in other jurisdictions.. 533 of charter 534 of private contracts 540 of police power of State 547 INTERSTATE COMMERCE— and Sunday laws 182 as to lottery tickets 182 sending lottery tickets from one State to another 272 how regulated 323 pooling of railroads 324 sugar refining company 326 is under Federal law 411 sending lottery tickets into another State 411 State must not interfere in controlling common carriers 539 what is 326, 548 conflicting with the State police power 548 right of Congress to delegate its powers 548 State statute interfering with 549 law providing for the purchase of certain dressed stone 549 INTERSTATE CONTRACTS— See Conflict of Laws. validity of contract — what law governs 395 intention and agreement 396 capacity of parties 397 sale of personalty 398 bills and notes 399 marriage contracts 400 married women ; 401 chattel mortgage lien follows the property 402 conveyances of real estate 403 insurance contracts 404 assignment of policy of insurance 405 assignment of property 406 905 INDEX. INTERSTATE CONTRACTS— ( coj^ijwed ) Sec. as to the situs of pei'sonal property 407 exceptions to general rule 408 selling intoxicants 409 carriers — stipulations exempting from negligence 410 interstate commerce 411 Sunday contracts 412 gaming — futures 413 smuggling contracts 414 enforcing revenue laws of another country 415 repeal of statute 416 usurious contracts 1 417 void usurious contracts 418 INTERSTATE MONOPOLIES— regulated by Congress 323 INTIMIDATION— what is — in strikes 336 INTOXICANTS— sale of, comes under the police power 205 sale of, in prohibited State 409 sale and manufacture of — when under the Federal law 411 note given for — another State law 413 manufacture and sale of — when a nuisance 546 soliciting trade in different States — State law regulating 549 statute incorporating imported — effect 554 INVOLUNTARY ASSIGNMENT— See Insolvency. what law governs , 406 JOINT AND SEVERAL CONTRACTS— joint contracts 368 disability of joint promisor 369 judgment against joint debtors 370 survivorship of joint liability 371 in equity — survivorship of liability 372 under the Codes 373 surety 374 release by act of creditor 375 covenant not to sue 376 joint creditors or obligees i . . 377 release with provision 378 release should be under seal 379 survivorship of joint creditors, .i 380 release by creditors 381 several interested 382 subscription to establish business enterprise 383 revocation 384 validity of subscription contracts 385 4 906 INDEX. JOINT AND SEVERAL CONTRACTS— (co»