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. R<ailroad Co., 49 N. Y. 263, 10
660; Rogers v. Steamboat Co., 86 Am. Rep. 364; Maynard v. Railroad
Me.261,29 A. 1065, 25 L. R. A. 491; Co., 71 N. Y. 180, 27 Am. Rep. 28;
Compare Gulf, etc. R. R. Co. v. Mc- Maguire v. Dinsmore, 56 N. Y. 168;
Gowan, 65 Tex. 640; Jacobus v. Nichols v. Railroad Co., 89 N. Y.
Railroad Co., 20 Minn. 125, 18 Am. 370; Kinney v. Railroad Co., 32
Rep. 360; Mobile, etc., R. R. Co. v. X. J. L. 409, 34 N. J. L. 513, 90
Hopkins, 51 Ala. 486; Rose v. Rail- Am. Dec. 675, 3 Am. Rep. 265. See,
road Co., 39 Iowa, 246; Louisville, also. Railroad Co. v. Bishop, 50 Ga.
etc., R. R. Co. V. Faylor, 126 Ind. 465.
126, 25 N. E. 869; Railroad Co. v. 6. Illinois Central Railroad Co.
Stevens, 95 U. S. 655. v. Read, 37 111. 484, 87 Am. Dec.
317
295
CONTRACTS AGAINST PUBLIC POLICY.
Ch. 9
And others refuse to give effect to any stipulation absolving the
carrier from liability for any degree of negligence.'
In Connecticut, Massachusetts and Maine, such special con-
tracts relieving the carrier from liability to free passengers, are
not forbidden by any principle of public policy.^ These cases
seem to be clearly in harmony with the principles of justice and
common right. In what manner the public welfare or the safety
of human life is involved, or any of the cherished interests of
the law are invalid by allowing a party to ride on a pass at his
own risk, does not clearly and satisfactorily appear.
It is held, in case of free passengers, that since the carrier is
not bound to transport them, it may impose such terms, short of
willful negligence or injury, as it chooses, as a condition of
carrying them.® But, in the absence of any special contract or
stipulation, the carrier is bound to exercise the same degree of
care toward a free passenger as toward a passenger for hire.'^°
260; Railroad Co. v. Mimdy, 21
Tnd. 48, 83 Am. Dec. 339; Annas
V. Railroad Co., 67 Wis. 46, 30 N.
W. 282, 58 Am. Rep. 848.
7. Railroad Co. v. Henderson, 51
Pa. St. 315; Railroad Co. v. Cur-
ran, 19 Ohio St. 1, 2 Am. Rep. 362;
Jacobus V. Railroad Co., 20 Minn.
125, 18 Am. Rep. 360; Gulf, etc.,
R. R. Co. V. McGowan, 65 Tex.
640; St. Louis, etc. R. R. Co. v.
Nelson, 20 Tex. Civ. App. 536, 49
S. W. 710. See, also, N. Y. Cent.
R. R. Co. V. Lockwood, 17 Wall.
(U. S.) 357.
8. Griswold v. Railroad Co., 53
Conn. 371, 4 A. 261, 55 Am. Rep.
115; Quimby v. Railroad Co., 150
Mass. 365, 23 N. E. 205, 5 L. R. A.
846; Rogers v. Steamboat Co., 86
Me. 261, 29 A. 1069, 25 L. R. A.
491.
9. Quimby v. Railroad Co., 150
Mass. 365, 23 N. E. 205, 5 L. R. A.
846; Rogers v. Steamboat Co., 86
Me. 261, 29 A. 106^, 25 L. R. A.
491; Griswold v. Railroad Co., 53
Conn. 371, 4 A. 261, 55 Am. Rep.
115.
10. Quimby v. Railroad Co., 150
Mass. 365, 23 N. E. 205; Griswold
V. Railroad Co., 53 Conn. 371, 4 A.
261; Rogers v. Steamboat Co., 86
Me. 261, 29 A. 106^, 25 L. R. A.
491; Rose v. Railroad Co., 39 Iowa,
246; Railroad Co. v. Mieche, 83
111. 428; Pittsburgh, etc., R. R. Co.
V. Caldwell, 74 Pa. St. 421; Blair
V. Railroad Co., 66 N. Y. 313, 23
Am. Rep. 55; Gulf, etc., R. R. Co.
V. McGowan, 65 Tex. 640; Gille-
nevatu v. Railroad Co., 5 Ind. 339,
61 Am. Dec. 101 ; Siegrist v. Arnat,
10 Mo. App. 197 ; Todd v. Railroad
Co., 3. Allen (Mass.), 18, 80 Am.
Dec. 49; Files v. Railroad Co., 149
Mass. 204, 21 N. E. 311, 14 Am. St.
Rep. 411; Perkins v. Railroad Co.,
24 N. Y. 196, 82 Am. Dec. 282 and
note; Jacobus v. Railroad Co., 20
Minn. 125, 18 Am. Rep. 360.
318
Cb. 9 LIMITING LIABILITV l<'OK NEGLIGENCE. § 295
So, if a passenger insists upon riding, or is required by tbe
nature of his occupation to ride, in a place not provided for pas-
sengers, it has been held that the carrier properly may say to
him that he must take the risk, however, arising."
If a person can show that the pass had been issued to him
under conditions sufficient to make his carriage one for hire in
any legal sense, it is competent for him to show that his atten-
tion had not been called to the stipulation exonerating the car-
rier from liability, and that he had never seen it or given his
assent to it; this is the law of many States.^^ But as heretofore
stated, if the passenger is not one for hire, it is of no conse-
quence whether or not he knows of and had assented to the as-
sumption of the risk of accident imposed by the stipulation.
And so when a party accepts a free pass and avails himself of
the privileges set forth, he is bound by the conditions.^^ If the
pass is issued as part of the consideration of a contract of which
it is collateral, then the passenger can recover for the accident
caused by the railroad's negligence." And if the passenger rides
on the special invitation of the president of the railroad without
any stipulation or condition whatever, then the company will be
liable for the accident caused by its own negligence.^^ In gen-
eral, when one accepts a gratuity qualified by conditions, he is
estopped to repudiate the condition and at the same time accept
the privileges conferred. This rule is in conformity with the
moral sense which justly holds those who accept gratuities and
acts of hospitality to perform the condition on which such
gratuities are bestowed. Under such conditions the common
11. ilosmer v. Railroad Co., 156 Mass. 365, 23 N. E. 205, 5 L. R. A.
Mass. 506 31 N. E. 652; Robertson 846; Griswoid v. Railroad Co., 53
V. Railroad Co., 156 Mass. 525, 31 Conn. 371, 4 A. 261, 55 Am. Rep.
N. E. 650; Bates v. Railroad Co., 115; Muldoon y. Railroad Co., 10
147 Mass. 255, 17 N. E. 633. See, Wash. 311, 38 P. ^95, 45 Am. St
also, Doyle v. Railroad Co., 166 Rep. 787; 111. Cent. R. R. Co. v.
Mass. 492, 44 N. E. 611, 33 L. R. A. Read, 37 111. 486, 87 Am. Dec. 260.
844, 55 Am. St. Rep. 417. 14. N. Y. Cent. Railroad Co. v.
12. The Majestic, 166 U. S. Tx)ckwood, 17 Wall. (U. S.) 357.
375, 17 S. Ct. 597. 15. Railroad Co. v. Demy,
13. Quimby v. Railroad Co., 150 14 How. U. S.) 468.
319
§§ 295, 296 CONTEACTS AGAINST PUBLIC POLICY. Ch. 9
carrier becomes, or holds the position of, a gratuitous bailee.
A common carrier is one that pursues the public employment of
conveying goods or passengers for hire ; so if a passenger is not
carried for hire and assumes all responsibility of the carriage,
he cannot recover for injuries caused by the railroad company.^'
The courts are not agreed on this question of riding on a free
pass, as to the liability of the common carrier for his negligence.
Some of the courts hold that a stipulation of a passenger riding
on a free pass to assume the risk is void as against public
policy, and this doctrine cannot be changed by a decision of the
Federal Supreme Court, as the question is not one of Federal
nature, so a decision of that court is in no sense binding on the
State courts. However, the weight of authority is with that
court"
ABTICLE III.
As TO Telegraph and Telephone Companies.
Section 296. Telegraph Companies.
297. Limiting Liability for Mistake in Sending Message.
298. Telephone Companies.
§ 296. Telegraph companies. — Telegraph companies resem-
ble common carrires, in that they are instruments of commerce ;
and in that they exercise a public employment, and are therefore
bound to serve all customers alike, without discrimination. They
have a duty to the public, to receive, to the extent of their ca-
pacity, all messages clearly and intelligently written, and to
transmit them upon reasonable terms. But they are not com-
mon carriers; their duties are different, and are performed in
different ways ; and they are not subject to the same liabilities.*
16. Duncan v. Railroad Co., 113 Liability for Negligence in Gratui-
Fed. Rep. 508 ; Boering v. Railroad tous Passes." — 56 Cent. L. Jour.
Co., 20 D. C. App. 500 ; affirmed by 204.
U. S. S. Ct„ 37 Chi. Legal News, 33. 1. Express Co. v. Caldwell, 21
17. Muldoon v. Railroad Co., Wall. (U. S.) 264, 269, 270; Tele-
7 Wash. 528, 36 P. 422. See, 22 graph Co. v. Texas, 1 Am. Electl.
L. R. A. 794 and note, 38 Am. St. Cas. 373, 105 U. S. 460, 464.
Rep. 901. See "Stipulations Against
320
Cll. 9 LIMITING LIABILITY FOR NEGLIGENCE. §§ 296, 297
Like common carriers, they cannot contract with their em-
ployers for exemption from liability for the consequences of
their own negligence. But they may, by such contracts, or hy
their rules and regulations brought to the knowledge of their
employers, limit the measure of their responsibility to a rea-
sonable extent. Whether their rules are reasonable or un-
reasonable must be determined with reference to public policy,
precisely as in the case of a carrier.^
It was said in one case that it is no longer an open question that
telephone and telegraph companies are subject to the rules gov-
erning common carriers and others engaged in like employment.^
But that case has regard, as is evident from the contract, and
from the reference to another case,* to those rules only which
require persons or corporations exercising public employment
to serve all alike, without discrimination, and which make
them subject to legislative regulations f but they are not com-
mon carriers.® Some decisions hold that a telegraph company
is a common carrier,^ and that it cannot make a valid contract
against its own negligence.*
§ 297. Limiting liability for mistake in sending message. —
A stipulation by a telegraph company and the sender of a mes-
sage, that the company shall not be liable for mistakes in the
2. Express Co. v. Caldwell, 21 464; Primrose v. Telegraph Co., 6
Wall. (U. S.) 264. Am. Electl. Cas. 809, 154 U. S. 1,
3. Delaware & Atlantic Tele- 14 S. Ct. 1098.
phone Co. v. Telegraph Co., 4 7. Western Union Tel. Co. v. Call
Am. Electl. Cas. 579, 50 Fed. Pub. Co., 5 Am. Electl. Cas. 673,
Rep. 677, 2 C. C. A. 1, 13 U. S. App. 44 Neb. 326, 62 N. W. 506,
30, 105. 27 L. R. A. 622, 48 Am. St. Rep.
4. Budd V. New York, 143 U. S. 724.
517, 12 S. Ct. 468. 8. Brown v. Tel. Co., Ill N. Car.
5. Primrose v. Telegraph Co., 5 187, 4 Am. Electl. Cas. 774,
Am. Electl. Cas. 809, 154 U. S. 1, 16 S. E. 179, 17 L. R. A. 648,
22, 14 S. Ct. 1098. 32 Am. St. Rep. 793; Gillis v. Tel.
6. Express Co. v. Caldwell, 21 Co., 2 Am. Electl. Cas. 841,
Wall. (U. S.) 264, 269, 270; Tele- 61 Vt. 461, 17 A. 736, 4 L. R. A.
graph Co. \. Texas, 1 Am. 611 and note, 15 Am. St. Rep. 917.
Electl. Cas. 373, 105 U. S. 460,
321
§ 29Y
CONTRACTS AGAINST PUBLIC POLICY.
Ch. 9
transmission or delivery of a message, beyond the sum received
for sending it, unless the sender orders it to be repeated by being
telegraphed back to the originating office for comparison, and
pays half that sum in addition, is reasonable and valid. This is
the settled law in many of the States and in England.^ As is
generally held a telegraph company has a clear right to protect
itself against extraordinary risks and liability by such rules and
regulations as may be required for the purpose. But it cannot,
by rules and regulations of its own making, protect itself against
liability for the consequence of its own willful conduct, or gross
negligence, or any conduct inconsistent with good faith. It is
bound to use due deligence, but not to use extraordinary care
and precaution. But by no device can it avoid liability for
fraud, for willful wrong, or for the gross negligence which, if
it does not intend to occasion injury, is reckless of consequences,
and transcends the bound of right with full knowledge that mis-
chief may ensue. ^
1. Jarboe v. Telegraph Co., 63
Mo. App. 226 j Kiley v. Telegraph
Co., 2 Am. Electl. Cas. 650,
109 N. Y. 231, 235, 237, 16 N.
E. 75; Primrose v. Telegraph Co.,
5 Am. Electl. Cas. 809, 154
U. S. 1, 14 S. Ct. 1098; Western
Union Tel. Co. v. Blanchard, 1
Am. Electl. Cas. 404, 68 Ga.
299, 45 Am. Rep. 480 and note;
Hart V. Telegraph Co., 1 Am.
Electl. Cas. 734, 66 Cal. 579,
6 P. 631, 56 Am. Rep. 119 and note;
Wann v. Telegraph Co., 37 Mo. 472,
90 Am. Dec. 395; Breeze v. Tele-
graph Co., 48 N. Y. 132, 8 Am. Rep.
520; Grinnell v. Telegraph Co.,
1 Am. Electl. Cas. 70, 113
Mass. 299, 18 Am. Rep. 485; Camp
V. Telegraph Co., 1 Met. (Ky.) 164,
17 Am. Dec. 461 and note; Western
Union Tel. Co. v. Carew, 15 Mich.
525; McAndrew v. Telegraph Co.,
17 C. B. 3; Baxter v. Telegraph Co.,
37 Up. Can. Q. B. 470; Compare
Western Union Tel. Co. v. Craw-
ford, 110 Ala. 460, 23 So. 111.
2. Passmore v. Telegraph Co.,
1 Am. Electl. Cas. 168, 9
Phil. (Pa.) 90, 78 Pa. St. 238;
Birney v. Telegraph Co., 18 Md.
341, 358, 81 Am. Dec. 697 and note;
United States Tel. Co. v. Gilder-
sieve, 29 Md. 232, 96 Am. Dec. 519;
Western Union Tel. Co. v. Steven-
son, 3 Am. Electl. Cas. 764,
128 Pa. St. 442, 18 A. 441, 5
L. R. A. 515, 15 Am. St. Rep. 687;
Ellis V. Telegraph Co., 13 Allen
(Mass.), 226; Redpath v. Telegraph
Co., 1 Am. Electl. Cas. 40,
112 Mass. 71, 17 Am. Rep. 69;
Grinnell v. Telegraph Co., 1 Am.
Electl. Cas. 70, 113 Mass. 299, 18
Am. Rep. 485; Clement v. Tele-
graph Co., 1 Am. Electl. Cas. 671,
322
Ch. 9 LIMITING LIABILITY FOR NEGLIGENCE. § 297
There are cases in wliich sncli regulations have been con-
sidered to be wholly void. Many of them, however, upon ex-
amination, appear to have been decided by considerations which
do not apply the doctrine already discussed. Some of them
were actions brought not by the sender, but by the receiver of
the message, who had no notice of the printed conditions until
after he received it, and could not, therefore, have agreed to
them in advance.^ Others were cases or night messages, in
which the whole provision as to repeating was omitted, and a
sweeping and comprehensive provision substituted, by which
in effect, all liability beyond the price paid was avoidable.*
And when the telegraph company does not undertake to re-
strict its liability by express stipulation, the sender may recover
damages.^
In some of the States the decisions are controlled by statutes.
Thus, in Indiana telegraph companies are made liable by stat-
ute for special damages by failure or negligence of their opera-
tors or servants, in sending messages.*
But there are decisions, not controlled by statute, which hold
that a stipulation that the sender of a message, if he would hold
the company liable in damages beyond the sums paid, must
have it repeated and pay half that sum in addition, is void as
against public policy. '^ These cases hold that it is against public
policy to permit telegraph companies to secure exemptions from
137 Mass. 463; Dixon v. Telegraph 62, 33 Wis. 558, 564, 14 Am. Rep.
Co., 6 Am. Electl. Cas. 803, 3 App. 775.
Div. 60, 38 N. Y. S. 1056. 5. Rittenhouse v. Telegraph Co.,
3. New York, etc., Tel. Co. v. 1 Daly (N. Y.), 474, 44 N. Y. 263;
Dryburg, 35 Pa. St. 298, 78 Am. Turner v. Telegraph Co., 1 Am.
Dec. 338; Harris v. Telegraph Co., Electl. Cas. 208, 41 Iowa, 458, 20
9 Phila. (Pa.) 88; De La Grange Am. Kop. 605.
V. Telegraph Co., 25 La. Ann. 383. 6. Western Union Tel. Co. v.
4. True v. Telegiaph Co., 60 Me. Meek, 1 Am. Electl. Cas. 138, 49
9, 18, 11 Am. Rep. 156 and note; Ind. 53; Western Union Tel. Co. v.
Bartlett v. Telegraph Co., 1 Am. Fenton, 1 Am. Electl. Cas. 198, 52
Electl. Cas. 45, 62 Me. 209, 215, 16 Ind. 1.
Am. Rep. 437; Candee v. Telegraph 7. Tyler v. Telegraph Co.,
Co., 1 Am. Electl. Cas. 99, 34 Wis. 1 Am. Electl. Cas. 14, 60 111.
471, 476, 17 Am. Rep. 452; Hibbard 421, 14 Am. Rep. 38, 74 111. 168,
V. Telegraph Co., 1 Am. Electl. Cas. 24 Am. Dec. 279 and note; Ayer v.
323
§ 297
CONTRACTS AGAINST PUBLIC POLICY.
Ch. 9
the consequences of their own gross negligence by contract. So,
notwithstanding any special conditions which may be contained
in a contract between the company and the sender of a message
restricting liability of the company in case of an inaccurate
transmission of the message, the company will still be liable for
a mistake happening by its own fault.^ Some hold that this
fault may be a defective instrument or carlessness or unskill-
fulness of its operators, and not for mistakes occasioned by
uncontrollable causes f that plaintiff, in order to recover dam-
ages, must show that the mistake was caused by the fault of
the company, and that it might have been avoided if the com-
pany's instruments had been good ones and if its agents had
possessed the requisite skill and exercised proper care and dili-
gence in respect to the transmission and receipt of the message
in question.^"
In Illinois the mere fact that a condition is printed in a tele-
Telegraph Co., 2 Am. Electl.
Cas. 601, 79 Me. 493, 10 A.
493, 1 Am. St. Rep. 353; Telegraph
Co. V. Griswold, 37 Ohio St. 301,
41 Am. Rep. 500; Western Union
Tel. Co. V. Crall, 2 Am. Electl. Cas.
575, 38 Kan. 679, 17 P. 309, 5 Am.
St. Rep. 795; Western Un. Tel. Co.
V. Howell, 2 Am. Electl. Cas. 581,
38 Kan. 685, 17 P. 313; Brown v.
Cable Co., 4 Am. Electl. Cas. 774,
111 N. Car. 187, 16 S. E. 179, 17
L. R. A. 648, 32 Am. Rep. 793;
Western Union Tel. Co. v.
Cook, 5 Am. Electl. Cas. 799, 61
Fed. Rep. 624, 9 C. C. A. 680, 15
U. S. App. 445 ; Western Union Tel.
Co. V. Linn, 87 Tex. 7, 26 S. W. 490,
47 Am. St. Rep. 58; Gillis v. Tele-
graph Co., 2 Am. Electl. Cas.
841, 61 Vt. 461, 17 A. 734, 4
L. R. A. 611 and note, 15 Am. St.
Rep. 917. See, also. Gray on Com-
munications by Tel. 51; Thompson
on Elect. 235, 236.
8. Tyler v. Telegraph Co.,
1 Am. Electl. Cas. 14, 60 HI.
421, 14 Am. Rep. 38, 74 111. 168, 24
Am. Rep. 279 and note.
9. Tyler v. Telegraph Co.,
1 Am. Electl. Cas. 14, 60 111.
421, 14 Am. Rep. 38.
10. Sweatland v. Telegraph Co.,
27 Iowa, 433, 1 Am. Rep. 285. As
to damages for breach to transmit
message, see Western Union Tel.
Co. V. Hall, 2 Am. Electl.
Cas. 868, 124 U. S. 444, 8 S. Ct.
577; Hadley v. Baxendale, 9 Exch.
345; Howard v. Stillwell Co., 139
U. S. 199, 206, 207, 11 S. Ct. 500;
Sanders v. Stuart, 1 C. P. D. 326,
328, 45 L. Journ., N. S., C. P.
682, 684; United States Tel. Co. v.
Gildersleve, 29 Md. 232, 251, 96
Am. Dec. 519; Baldwin v. Telegraph
Co., 45 N. Y. 744, 749, 750, 752, 6
Am. Rep. 165; Tyler v. Telegraph
Co., 1 Am. Electl. Cas. 14, 60 HI.
434, 14 Am. Rep. 38; Postal. Tel.
Co. V. Lathrop, 3 Am. Electl. Cas.
630, 131 111. 575, 585, 23 N. E. 583,
324
Ch. 9 LIMITING LIABILITY FOR NEGLIGENCE. §§ 297, 298
graph blank, does not charge the sender of a message with notice
thereof/^
§ 298. Telephone companies. — The same rule applies to
telephone companies as to telegraph companies. Such rules
and regulations as a telephone company adopts must be reason-
able and must not have the effect of relieving the company of its
duties and obliagtions which it owes to its patrons by means of
its public character.^ A telephone company has the right to
adopt reasonable rules and regulations ; but a rule that it will
not be responsible for the negligence of messenger sent from its
station, who must of necessity be of its selection and under its
control, and that such messengers shall be deemed the
agent of the patrons at whose instance they are sent,
is void as aaginst public policy, on the ground that
a telephone company cannot limit its liability, for neg-
ligence of its servants.^ Some decisions hold that a tele-
phone company is a common carrier.^ Whenever such com-
panies are held to be common carriers the court will apply the
same rule with respect to liability for negligence that it applies
in cases of other common carriers.
7 L. R. A. 474, 19 Am. St. Rep. 55; 11. Western Union Tel. Co. v.
Candee v. Telegraph Co., 1 Am. Lyon, 60 III. App. 122, See "Lia-
Electl. Cas. 99, 34 Wis. 471, 479, bility of Telegraph Companies for
Telegraph Co., 1 Am. Electl. Cas. Negligence in the Transmission and
141, 21 Minn. 155; Mackay V. Tele- Delay of Messages." — 10 Va. L.
graph Co., 16 Nev. 222; Daniel v. Register, 392.
Telegraph Co., 1 Am. Electl. Cas. 1. Central Union Telephone Co.
650, 61 Tex. 452, 48 Am. Rep. 305; v. State, 2 Am. Electl. Cas. 27, 118
Cannon v. Telegraph Co., 2 Am. Ind. 194, 19 N. E. 604, 10 Am. St.
Electl. Cas. 699, 100 N, Car. 300; Rep. 114 and note.
6 S. E. 731, 6 Am. St. Rep. 390; 2. Central Union Telephone Co.
Western Union Tel. Co. v. Wilson, v. Swoveland, 6 Am. Electl. Cas.
4 Am. Electl. Cas. 664, 32 679, 14 Ind. App. 341, 42 N. E.
Fla. 527, 14 S. E. 1, 22 L. R. A. 3. G^vynne v. Tel. Co., 61 S. Car.
434, 37 Am. St. Rep. 125; Abeles v. 83, 39 S. E. 257, 55 L. R. A. 130,
Telegraph Co., 37 Mo. App. 554; 85 Am. St. Rep. 870; Nebraska Tel.
Kinghorne v. Telegraph Co., 18 Up. Co. v. State, 7 Am. Electl. Cas. 860,
Can., Q. B. 60, 69; Primrose v. 1035.
Telegraph Co., 5 Am. Electl. Cas. 55 Neb. 627, 76 N. W. 171, 45 L. R.
809, 154 U. S. 1, 14 S. Ct. 1098. A. 113.
325
§ 299 CONTRACTS AGAINST PUBLIC POLICY. Ch. 9*
AUTICLE IV.
Limiting Master^s Liability.
Section 299. Limiting Master's Liability to Servant.
300. Limiting Master's Liability to Servant — Servant Receiving
Benefits from Association.
§ 299. Limiting master's liability to servant. — ISTo man maj
contract contrary to law, or contrary to public policy or good
morals, and this is true of merchants, lawyers, doctors, of buy-
ers and sellers, bailors and bailees, and of master and servants.
And the liability of railroad companies and other carriers for
injuries to their servants caused by the carelessness of those
who are superior in authority and control over them, is placed
chiefly upon consideration of public policy ;^ and it is not com-
petent for a railroad company to stipulate with its employes at
the time, and as a part of their contract of employment, that
such liability shall not attach to it.^ A rule which imposes upon
an employee to look after and be responsible for his own safety,
contravenes the law itself, which fixes the liability of railroads
for negligence causing injury or death to their employees,^ and
is opposed to public policy.^
And in general, a contract whereby a party stipulates for his
exemption from liability for the consequences of his own negli-
gence, is against public policy and void, and this is so independ-
1. Little Miami R. R. Co. v. pare Western, etc., R. R. Co. v.
Stevens, x-0 Ohio, 415; Railroad Co. Bishop, 50 Ga. 465; Western, etc.,
V. Spangler, 44 OhioSt. 471, 8 N. E. R. R. Co. v. Strong, 52 Ga. 461;.
467, 58 Am. Rep. 833 and note. Hendricks v. Railroad Co., 52 Ga.
2. Railroad Co. v. Spangler, 44 467; Griffiths v. Dudley, L. R. 9
Ohio St. 471, 8 N. E. 467; Raesner Q. B. Div. 357.
V. Hermann, 8 Fed. Rep. 782; Kan- 3. Louisville, etc., R. R. Co. v.
sas Pac. R. R. Co. v. Peavey, 29 Orr, 91 Ala. 548, 8 So. 360.
Kans. 169, 44 Am. Rep. 630 and 4. Hissong v. Railroad Co., 91
note; Louisville, etc., R. R. Co. v. Ala. 514, 8 So. 770; Richmond, etc.,
Orr, 01 Ala. 548, 8 So. 360; Hissong R. R. Co. v. Jones, 92 Ala. 218, 9'
V. Railroad Co., 91 Ala. 514, 8 So. So. 276; Railroad Co. v. Spangler,
776; Richmond, etc., R. R. Co. v. 44 Ohio St. 471, 8 N. E. 467, 58 Am.
Jones, 92 Ala. 218, 9 So. 276; Com- Rep. 833 and note.
326
Ch. 9 LIMITING LIABILITY l-OK NEGLIGENCE. §§ 290, 300
entlj of statute.^ C\)imnon carriers camiot by contract exempt
themselves from responsibility for their own or their servants'
negligence in the carriage of goods and passengers for him ; and
the principle Avhich vitiates a stipulation for exemption from
liability for one's own negligence, is not confined to the con-
tracts of carriers as such ; it applies universally.®
The Georgia doctrine holds that such contracts are valid so
far as they do not waive any criminal neglect of the master or
his principal agents ; but when the contract contravenes public
policy it will be void.''
§ 300. Limiting master's liability to servant — Servant re-
ceiving benefits from association. — Where the corporation has
contributed to the funds of a relief association composed of its
employees, an agreement by a member of the association that
the acceptance of benefits from the relief fund for injury or
death shall operate as a release of all claim for damages against
the corporation or master, is not contrary to public policy, and
does not violate the rule that a common carrier, or other master,
cannot make a valid contract against his own negligence.
In cases of injury through the master's negligence there is no
waiver of any right of action that the person injured may there-
after be entitled to. It is not the signing of the contract, but
the acceptance of benefits after the accident that constitutes the
release. The servant is not stipulating for the future, but set-
tling for the past ; he is not agreeing to exempt the master from
liability for negligence, but accepting compensation for an in-
jury already caused thereby.^ The substantial feature of the
contract which distinguishes it from those held void as against
5. Johnson v. Railroad Co., 80 1. Eckman v. Railroad Co., 169
Va. 975, 11 S. E. 829. 111. 312, 48 N. E. 496, 38 L. R. A.
6. Cooley on Torts, 687; Raesner 750; Johnson v. Railroad Co., 163
V. Hermann, 10 Biss. C. C. 486; Pa. St. 127, 29 A. 854; State v.
Railway Co. v. Spangler, 44 Ohio Railroad Co., 36 Fed. Rep. 655;
St. 471, 8 N. E. 467, 58 Am. Rep. Owens v. Railroad Co., 35 Fed.
833 and note; Johnson v. Railroad Rep. 715, 1 L. R. A. 75 and note;
Co., 86 Va. 975, 11 S. E. 829. Chicago, etc. Railroad Co. v. Bell,
7. Western, etc. R. R. Co. v. 44 Neb. 44, 62 N. W. 314; Fuller v.
Bishop, 50 Ga. 465. Relief Asso., 67 Md. 433, 10 A. 237;
32Y
§ 300 CONTRACTS AGAINST PUBLIC POLICY. Cll. 9
public policy is that the servant retains whatever right of action
he may have until after knowledge of all the facts, and an op-
portunity to make his choice between the sure benefit of the as-
sociation or the chances of litigation. Having accepted the
former he cannot justly ask the latter in addition.^
The acceptance of such relief fund by the servant operates as
a release of such servant's claim against the master for damages
because of injury under the following construction of such con-
tract: 1. Such contract of a servant does not lack considera-
tion to support it. 2. The promise made by the servant or em-
ployee to the relief association of the master is available to the
latter as a cause of action or defense. 3. Such contract is not
contrary to public policy. 4. The effect of such contract is not
to make the master exonerate himself by contract from lia-
bility for the negligence of himself or servants. 5. The em-
ployee does not waive his right of action against the master, in
case he should be injured by the master's negligence, by the
execution of the contract. 6. It is not the execution of the con-
tract that estops the injured servant, but his acceptance of pay-
ment from the relief association on account of the injury after
his cause of action against the master on account thereof arises.'
And if the relief association has no money to pay the injured
servant, then he may sue the company and recover, notwith-
standing he has accepted benefits as a member of such associa-
tion organized by the company, under an agreement that he
thereby relinquishes his right of action.'*
Eingle v. Railroad Co., 164 Pa. St. 3. Chicago, etc. Railroad Co. v.
529, 44 Am. St. Rep. 628 and note; Bell, 44 Keb. 44, 52 N. W. 314 j
Kinney v. Railroad Co., 35 W. Va. Martin v. Railroad Co., 41 Fed.
385; 14 S. E. 8, 15 L. R. A. 142 Rep. 125. See, also, Otis v. Rail-
and note; Spetz v. Railroad Co., road Co., 71 Fed. Rep. 136; Cle-
75 Md. 308, 23 A. 307. ments v. Railroad Co. (1894), 2 Q.
2. Johnson v. Railroad Co., 163 B. 482; Vickers v. Railroad Co., 71
Pa. St. 127, 29 A. 854; Lease v. Fed. Rep. 139; Shaver v. Railroad
Railroad Co., 10 Ind. App. 47, 37 Co., 71 Fed. Rep. 931.
N. E. 423; O'Neil v. Iron Co., 63 4. Chicago, etc. R. R. Co. v.
Mich. 690, 30 N. W. 688. Miller, 76 Fed. Rep. 439, 22 C. C.
A. 264, 40 U. S. App. 448.
328
CHAPTER X.
Obligations of Quasi-Public Corporations.
AETICLE I.
Disabling Contracts of Corporations Owing a Duty to
THE Public.
Section 301. Private Contract of Quasi-Public Corporations.
302. Locating Right of Way and Stations of Railroads.
303. Use of Franchise.
§ 301. Private contracts of quasi corporations. — Tlie gen-
eral rule that contracts in partial restraint of trade are not in-
valid, does not apply to corporations in a public business, in
which the public are interested. Such contracts cannot be al-
lowed. Any private contract by them which is injurious or pre-
judicial to the public interest is void on the ground of public
policy.^ And so a contract by which a company renders itself
incapable of performing its duties to the public or attempts to
absolve itself from its duties, without the consent of the State,
violates its charter and is forbidden by public policy.^ And so
a contract which obliges one of the parties to do an act in viola-
tion of law, or restricts the free exercise of discretion vested by
law in a public or municipal officer in reference to a trust re-
posed in him, or which contemplates such violation of law or
discharge of the free exercise of a public duty, is a nullity.'
1. Burney V. Ludeling, 47 La. Ann. U. S. 71, 83; Ashbury Railway, etc.
73, 16 So. 507; Chicago Gas Light Co. v. Riche, L. R. 7 H. L. 653.
Co. V. Coke Co., 121 111. 530, 13 N. 3. Mayor v. Bowman, 39 Miss.
E. 169; Hays v. Railroad Co., 61 671. See, also, Jerret v. Bartlett,
111. 422; Thomas v. Railroad Co., 21 Vt. 184; Wooten v. Miller, 7
101 U. S. 71, 83. Sm. & M. (Miss.) 385.
2. Thomas v. Railroad Co., 101
329
§§ 301, 30'2 CONTEACTS AGAINST PUBLIC POLICY. Cll. 10
So, a board of education has no right to stipulate in a con-
tract for improveonent that none but union labor shall be em-
ployed by the contractor.'* Such a stipulation is an infringe-
ment of the constitutional rights of citizens. Even the State,
through its legislature could not enact such a provision.^
§ 302. Locating right of way and stations of railroads. —
It is generally held that a railway company cannot bind itself
with an individual to locate and maintain stations at particu-
lar points or not to locate and maintain them at other points.
The company must be left free to establish and reestablish when-
ever the public welfare or wants of the public may require. The
power to locate stations is, from its nature, a continuing one.^
So a contract materially limiting a railroad's power to locate
and relocate its depots, is against public policy and, therefore,
void.^
So a contract in which an officer or other person supposed to
be influential with a railway company, for a consideration prom-
ised him, agrees to secure the location of station, depot or rail-
way at a particular place, is void.^ Another class of cases, which
restrict the doctrine of the general rule holds, that where an
4. Adams v. Brennan, 177 111.
194, 52 N. E. 314, 60 Am. St. Rep.
222, 42 L. R. A. 718.
5. People V. Live Stock Exchange,
170 111. 556, 48 N. E. 1062, 30 L.
R. A. 373, 62 Am. St. Rep. 404;
Holden v. Alton, 179 111. 318, 53
N. E. 556.
1. Mobile, etc. R. R. Co. v. Peo-
ple, 132 111. 559, 24 N. E. 645, 22
Am. St. Rep. 556.
2. Fuller v. Dame, 18 Pick.
(Mass.) 472; Burney v. Ludeling,
47 La. Ann. 73, 16 So. 507; St.
Joseph, etc. R. R. Co. v. Ryan, 11
Kan. 602, 15 Am. Rep. 557; Pacific
R. R. Co. V. Seeley, 45 Mo. 212,
100 Am. Dec. 369; Currie v. Rail-
road Co., 61 Miss. 725; Florida,
etc. R. R. Co. V. State, 31 Fla. 482,
13 So. 103, 20 L. R. A. 419, 34 Am.
St. Rep. 30; Woodstock Iron Co.
V. Railroad Co., 129 U. S. 642, 9
S. Ct. 402; Williamson v. Railroad
Co., 53 Iowa, 126, 4 N. 870, 36 Am.
Rep. 206 and note; Marsh v. Rail-
road Co., 64 111. 414, 16 Am. Rep.
564; Holladay v. Patterson, 5 Oreg.
182; Linder v. Carpenter, 62 111.
309; St. Louis, etc. R. R. Co. v.
Mathews, 71 111. 59^, 104 111. 257;
Bester v. Wathen, 6D 111. 138; Peo-
ple V. Railroad Co., 130 111. 175,
22 N. E. 857.
3. Fuller v. Dame, 18 Pick.
(Mass.) 472; Bester v. Wa-
then, 60 111. 138; Linder v. Carpen-
ter, 62 111. 309.
330
Ch. 10
QUASI-PUBLIC CORPORATIONS.
§ 302
agreement has been made, between an individual and railway
corporation, for tbe location of a station or depot at a particu-
lar place, in consideration of a donation of money or property
to the corporation, without any restriction or prohibition against
any other location, it is valid/ And, hence, an agreement to
pay a railway company a stipulated sum, in consideration that
it would locate its route at a particular place, is valid, and
not against public policy.^ So a conditional subscription of
stock is valid/ And so a voluntary grant to a railroad, on con-
dition that it would locate its route and establish a depot at a
certain place, is not against public policy/ According to these
cases where there is no restriction or prohibition against any
other location, such contracts are not void as against public
policy/ All the cases agree that those contracts which stipulate
for location of stations or depots at particular places, and which
prohibit the location of others within prescribed limits, are
void,^ because railroad companies can make no contract which
shall prohibit it from serving the public as the future demands
of business or concentration of population may require/"
4. Louisville, etc. R. R. Co. v.
Sumner, 106 Ind. 55, 5 N. E. 404,
55 Am. Rep. 719.
5. Cumberland R. R. Co. v. Baab,
9 Watts (Pa.), 458, 36 Am. Dec.
132; First Nat. Bank v. Hendric,
49 Iowa, 402, 31 Am. Rep. 153;
Swartout v. Railroad Co., 24 Mich.
389; Harris v. Roberts, 12 Nebr.
631, 21 N. 89, 41 Am. Rep. 779;
International R. R. Co. v. Dawson,
62 Tex. 260.
6. New Albany, etc. R. R. Co. v.
McCormick, 10 Ind. 499, 71 Am.
Dec. 337; Jewett v. Railroad Co.,
10 Ind. 539.
7. McClure v. Railroad Co., 9
Kans. 373. See, also, Watterson
V. Railroad Co., 74 Pa. St. 208;
Galveston, etc. R. R. Co. v. Pfeuffer,
56 Tex. 66.
8. Louisville, etc. R. R. Co. v.
Sumner, 100 Ind. 55, 5 N. E. 404,
55 Am. Rep. 719.
' 9. Williamson v. Railroad Co.,
53 Iowa, 126, 4 N. 870, 36 Am.
Rep. 206 and note; St. Louis, etc.
R. R. Co. V. Mathews, 104 111. 257,
22 Am. Rep. 122, 71 111. 592; St.
Joseph, etc. R. R. Co. v. Ryan, 11
Kan. 602, 15 Am. Rep. 357. See, also.
Fuller V. Dame, 18 Pick. (Mass.)
472; Bester v. Wathen, 60 111. 138.
10. Louisville, etc. R. R. Co. v.
Sumner, 106 Ind. 55, 5 N. E. 404,
55 Am. Rep. 719; Williamson r.
Railroad Co., 53 Iowa, 126, 4 N.
870, 30 Am. Rep. 206 and note.
331
§ 303 CONTEACTS AGAINST PUBLIC POLICY. Ch. 10
§ 303. Use of franchises. — Where a corporation like a rail-
road company has granted to it by charter a franchise intended
in large measure to be exercised for the public good, the due
performance of those functions being the consideration of the
public grant; and any contract which disables the corporation
from performing those functions, which undertakes without the
consent of the State to transfer to others the rights and powers
conferred by the charter and to relieve the grantee of the bur-
den which it imposes, is a violation of the contract with the
State and is void as against public policy.^
A contract of a carrier, whether an individual or a corpora-
tion, not to cary passengers or goods over a particular route may
be reasonable and valid.^ But a contract by which a corpora-
tion, chartered to perform the duties of a common carrier, or
any other duties to the public, agrees that it will not perform
those duties at all, anywhere, for ninety-nine years, is clearly
unreasonable and void.^ When the corporation abandons its
duty to the public in making contracts, such contracts are void.*
The supplying of illuminating gas is a business of a public
nature to meet a public necessity. It is not a business like that
of an ordinary corporation engaged in the manufacture of
articles that may be furnished by individual effort, and are
controlled in making contracts by their charters.^
1. Thomas v. Railroad Co., 101 4. Central Trans. Co. v. Car Co.,
U. S. 71, 83; Pickard v. Car Co., 139 U. S. 24, 11 S. Ct. 478.
117 U. S. 34, 6 S. Ct. 635; York, 5. New Orleans Gas Co. v. Louis-
etc. R. R. Co. V. Winans, 17 How. iana Light Co., 115 U. S. 650, 6 S.
(U. S.) 30, 39. Ct. 252; Louisville Gas Co. v. Cit-
2. Peirce v. Fuller, 8 Mass. 223; izens' Gas Co., 115 U. S. 683, 6 S.
Palmer v. Stebbiiis, 3 Pick. (Mass.) Ct. 265; Shepard v. Gas Light Co.,
188, 15 Am. Dec. 204; Leslie v. 6 Wis. 539, 70 Am. Dec. 479 and
Lorillard, 110 N. Y. 519, 18 N. E. note; Chicago Gas Light and Coke
363, 1 L. R. A. 456 and note. Co. v. Coke Co., 121 111. 530, 13 N.
3. Oregon Steam Nav. Co. v. E. 169, 2 Am. St. Rep. 124; St.
Winsor, 20 Wall. (U. S.) 64; Louis v. Gas Light Co., 70 Mo. 69.
Gibbs V. Gas Co., 130 U. S. 408, 410, See, also. State v. Railroad Co.,
9 S. Ct. 553. 29 Conn. 538; Peters v. Ryland,
20 Pa. St. 497, 59 Am. Dec. 746.
332
Ch. 10 QUASI-PUBLIC COHPORATIONS. § 304
AJRTICLE 11.
Discriminations.
Section 304. Suppressing Competition.
305. Combination of Quasi-Public Corporations.
306. Discrimination by Carriers.
307. Telephone and Telegraph Companies.
308. Exclusive Privileges.
§ 304. Suppressing competition. — While it is justly urged
that those rules which say that a given contract is against public
policy, should not be arbitrarily extended so as to interfere with
the freedom of contract/ yet in the instance of business of such
character that it presumably cannot be restrained to any extent
whatever without prejudice to the public interest, courts de-
cline to enforce or sustain contracts imposing restraint, however
partial, because in contravention of public policy.^ A railway
company cannot lease or buy a competing line in order to sup-
press competition.^ Any combination or agreement, the object
of which is to destroy or interfere with free competition in any
line of business is void, whether or not in the particular instance
it has its desired effect.* When the provisions of agreements in
restraint of competition tend beyond measures for self-protec-
tion and threaten the public good in a distinctly appreciable
manner, they should not be sustained. The apprehension of
danger to the public interests, however, should rest on evident
grounds, and courts should refrain from the exercise of their
equitable powers in interfering with and restraining the con-
1. Printing and Registering Co. Telegraph Co., 65 Ga. 160, 38 Am.
V. Sampson, L. R. 19 Eq. Cas. 462. Rep. 781 and note.
2. West Virginia Trans. Co. v. 3. Thomas v. Railroad Co., 101
Pipe Line Co., 22 W. Va. 600, 46 U. S. 71; Gulf, etc. R. R. Co. v.
Am. Rep. 527; Chicago Gas Light Morris, 67 Tex. 692, 4 S. W. 156.
and Coke Co. v. Coke Co., 121 HI. 4. Anderson v. Jett, 89 Ky. 375,
530, 13 N. E. 169, 2 Am. St. Rep. 12 S. W. 670, 6 L. R. A. 390.
124; Western Union Tel. Co. v.
333
§§ 304, 305 CONTEACTS AGAINST PUBLIC POLICY. Ch. 10
duct of the affairs of individuals or of corporations, unless their
conduct, in some tangible form, threatens the welfare of the
public.^
To the extent that the contract prevents the vendor from car-
rying on the particular business, it deprives the community of
any benefit it might derive from his entering the competition.
But the business is open to all others and there is little danger
that the public will suffer harm from lack of persons to engage
in a profitable industry. Such contracts do not create monopo-
lies. They confer no special or exclusive privilege.®
If the restriction is only commensurable with the fair pro-
tection of the business sold, the contract is reasonable, valid and
enforceable. It is only where the restriction can be of no avail
to the vendee and unnecessarily hampers the vendor that it be-
comes oppressive and void.'^
All contracts, in which the public are interested, which tend
to prevent competition, whenever a statute or known rule of law
requires competition, are void.^ A party has a right to solicit
business, and may, even maliciously solicit customers from an-
other so long as he does not induce the customers to violate their
contracts with another.®
§ 305. Combinations of quasi-public corporations. — Com-
binations among those engaged in business impressed with a
5. Diamond MatcE Co. v. Roeber, Co., 143 N. Y. 430, 38 N. E. 461,
106 N. Y. 473, 13 N. E. 419, 60 Am. 26 L. R. A. 544 and note.
Rep. 464; Leslie v. Lorillard, 110 8. Chicago v. Rumoff, 45 111. 90,
N. Y. 519, 18 N. E. 363, 1 L. R. A. 92 Am. Dec. 196; People v. Trust
456 and note. Co., 130 111. 268, 22 N. E. 798, 8
6. Diamond Match Co. v. Roeber, L. R. A. 497, and note; 17 Am. St.
106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 319; Foss v. Cummings, 149
Rep. 464. 111. 353, 36 N. E. 553; Fishburn v.
7. Fowle V. Park, 131 U. S. 88, Chicago, 171 111. 338, 49 N. E. 532,
9 S. Ct. 658; Ellerman v. Stock 39 L. R. A. 482, 63 Am. St. Rep.
Yards Co., 49 N. J. Eq. 217, 23 A. 236.
287; Long v. Towl, 42 Mo. 545; 9. West Virginia Trans. Co. v.
Tode V. Gross, 127 N. Y. 480, 28 Standard Oil Co., 50 W. Va. 611,
N. E. 469, 13 L. R. A. 652 and note; 40 S. E. 472, 56 L. R. A. 804, 88
24Am. St. Rep. 475; Oakes v. Water Am. St. Rep. 895.
334
Ch. 10 QUASI-PUBLIC CORPORATIONS. §§ 305, 306
public or qnasi--p\\b]ic. character, which are manifestly preju-
dicial to the public interest cannot be upheld.^
A corporation cannot disable itself by contract from the per-
formance of public duties which it has undertaken, and thereby
make public accommodation or convenience subservient to its
private interests.^ And a combination between two or more
railroad companies owning- competing; lines, by which one line
is to be discontinued or leased to the other, is void as against
public policy.' And a statute may prohibit mergers of compet-
ing 5^/asi-public corporations. So an ordinance of a city requir-
ing the giving of transfers, where one street railway controls an-
other, either by owning or leasing, or operating it, to passengers
riding on either line, is valid.*
§ 306. Discrimination by carriers. — Persons having a pub-
lic duty to perform are bound to exercise such office for the
equal benefit of all, and, therefore, to permit a common carrier
to charge various prices according to the person with whom he
deals for the same services, is to violate his duty to the public.
If he exacts different rates for the carriage of goods of
the same kind between the same point, he violates the
principles of public policy.^ In the United States, the stat-
1. Woodstock Iron Co. v. Exten- 4. Cliieago Union Traction Co. v.
sion Co., 129 U. S. 643, 9 S. Ct. Chicago, 199 111. 579, 65 X. E. 470;
402; Trist v. Child, 21 Wall. (U. Compare San Diego Gas Co. v.
S.) 441; Irwin v. Williar, 110 U. Frame, 137 Cal. 441, 70 P. 295;
S. 499, 4 S. Ct. 160; Arnat v. Coal Atchison, etc. E. R. Co. v. Cockran,
Co., 68 N. Y. 558, 23 Am. Rep. 43 Kan. 225, 23 P. 151, 7 L. R. A.
190; Central Salt Co. v. Guthrie, 414, 19 Am. St. Rep. 129.
35 Ohio St. 666; Woodruff v. Ber- 5. Messenger v. Railroad Co., 36
ry, 40 Ark. 251, 261; Craft v. Mc- N. J. L. 407, 13 Am. Rep. 457; In-
Conoughy, 79 111. 346, 22 Am. Rep. dianapolis. etc. R. R. Co. v. Ervin,
171; Hooker v. Vandewater, 4 118111.250, 8 N. E. 862, 59 Am. Rep.
Denio (N. Y.), 349, 47 Am. Dec. 369; United States Express Co. v.
258; Stanton V. Allen, 5 Denio (N. Backman, 28 Ohio St. 144; New
Y.), 434, 49 Am. Dec. 282. England Express Co. v. Railroad
2. Gibbs V. Gas Co., 130 U. S. Co., 57 Me. 188, 2 Am. Rep. 31;
396, 9 S. Ct. 553. McDuffee v. Railroad Co., 52 N. H.
3. Thomas v. Railroad Co.. 101 430, 13 Am. Rep. 72; Sanford v.
U. S. 71, 83. Railroad Co., 24 Pa. St. 378, 64
335
§§ 306-308 CONTEACTS AGAINST PUBLIC POLICY. Ch. 10'
"utes prohibiting discrimination are merely declaratory of the
common law.^
§ 307. Telegraph and telephone companies. — The term
" telegraph " includes any apparatus or adjustment of instru-
ments for transmitting messages or other communications by
means of electric currents and signals, and hence, it includes
the telephone.^ The telegraph and telephone both being in-
struments in constant use in conducting the commerce, and the
affairs, both public and private, of the country, their operation
therefore, in doing a general business, is a public employment,
and the instruments and appliances used are properly devoted to
public use, and in which the public have an interest. And such
being the case, the owner of the property thus devoted to public
use, must submit to have that use and employment regarded
by public authority for the common good.^ Such companies
caimot refuse to perform impartially the functions that they
have assumed to discharge, no more than a railway company, as
a common carrier, can rightfully refuse to perform its duty to
the public ; they have no power to discriminate, and while offer-
ing to serve some, refuse to serve others ; they must serve all
alike, upon compliance with their reasonable rules and regula-
tions.'
§ 308. Exclusive privileges. — Contracts made by corpora-
tions owing a duty to the public which foster monopolies are
Am. Dec. 667; Audexried v. Rail- 1. Attorney Gen. v. Telephone
road Co., 68 Pa. St. 370, 8 Am. Rep. Co., 6 Q. B. Div. 244.
195; Scofleld v. Railroad Co., 43 2. Munn v. Illinois, 94 U. S.
Ohio St. 571, 3 N. E. 917, 54 Am. 113; Hockett v. State, 105 Ind. 250,
Rep. 846 and note. 5 N. E. 202, 55 Am. Rep. 201.
6. Sinking Fund Cases, 99 U. S. 3. Chesapeake, etc. Co. v. Teleg.
719; Messenger v. Railroad Co., 36 Co., 66 Md. 399, 7 A. 809, 59 Am.
N. J. L. 407, 13 Am. Rep. 457; Rep. 167 and note. See, also, Shep-
Hayes v. Railroad Co., 12 Fed. Rep. hard v. Gas Light Co., 6 Wis. 526;
309; Vincent v. Railroad Co., 49 Gas Light Co. v. Colliday, 25 Md.
111. 33; McCay v. Railroad Co., 13 1; People v. Gas Light Co., 45 Barb.
Fed. Rep. 3; Chicago, etc. R. R. Co. (N. Y.) 136.
V. People, 56 111. 365, 8 Am. Rep.
690.
336
Ch. 10
QUASI-PUBLIC CORPORATIONS.
§ 808
void, such as giving exclusive privileges. Such contracts made
and entered into, cripple and prevent competition, and are not
favored by the lav? ; they are against public policy, because they
tend to create monopolies, and are in general restraint of trade.^
Hence, contracts between a railroad and a telegraph com-
pany, vesting in the latter exclusive right to use or occupy the
right of way of the former, for the erection of telegraph poles
and other purposes in connection with their business of sending
messages by telegraph, are void as in general restraint of trade,
and tending to create a monopoly, thus being against public
policy.^ But it has been held in Illinois that a second telegraph
company could not use the telegraph poles of the first company
though given that privilege by the railroad company.^
A ferry company may limit its operations to a single place,
and limit it to one railroad company, so long as the ferry com-
pany furnishes all the facilities that the public interest requires,
as this is no general restraint of trade/
1. Oregon Steam Nav. Co. v.
Winsor, 20 Wall. (U. S.) 66, 68;
Western Union Tel. Co. v. Tele-
graph Co., 5 Nev. 103.
2. Western Union Tel. Co. v.
Telegraph Co., 65 Ga. 160, 38 Am.
Rep. 781 and note.
3. Western Union Tel. Co. v.
Railroad Co., 86 HI. 246, 29 Am.
Rep. 28.
4. Wiggins Ferry Co. v. Railroad
Co., 73 Mo. 389, 39 Am. Rep. 519.
337
CHAPTER XL
Restraint of Trade.
AETICLE I.
CoNTBACTs IN Restraint of Trade.
Section 309. Contracts in Restraint of Trade.
310. Unreasonable Restraint.
311. English Doctrine as to Limitations of Time and Space —
Reasonableness.
312. American Doctrine as to Limitation of Time and Space.
313. Test of Reasonableness.
314. The Latest Statement of the Test of Reasonableness.
315. Injuring the Trade of Another.
§ 309. Contracts in restraint of trade. — As preliminary to
the discussion of this subject, it may be well to speak of the
modern combination, and industrial and largely commercial
enterprise. This modern combination is created solely to con-
trol trade and commerce in certain articles of production and
substitute a more or less perfect monopoly in the place of a more
or less free competition. Combination as an economic agent is
taking the place of competition. The producers are combining;
transportation companies are merging; laborers and employers
have distinct unions, and competition seems to be losing its place
in commerce. The principle of uniting is carried still further
and there are combinations of combinations. And the great
combinations of to-day are the creation of competing producers
who were themselves combinations of still other producers. The
individualistic civilization which has made the Eepublic great
is losing its place, and individuals now dare not take the initia-
tive and rely upon themselves in the commercial world. The
economic virtue of our industrial system which has made the
338
Cb. 11 llESTRAINT OF TKADE. § 309
nation great is being supplanted bj combinations and monopoly.
Tbese combinations are rapidly driving ont of business tbe
small trader and tbe small producer. These combinations are
changing the commercial methods of our people and having
great effects upon our commercial laws. And a jurisprudence
of commercial restriction must take the place of jurisprudence
of commercial competition. But treating the subject in its or-
dinary conception, irrespective of modern combinations, the
leading decision of Mitchel v. Reynolds,^ is the foundation of
the rule in relation to tlie invalidity of contracts in restraint of
trade ; but as it was made under a condition of things, and a
state of society, different from those which now prevail, the rule
laid down is not regarded as inflexible, and has been consider-
ably modified. Public welfare is first considered, and if it be
not involved, and the restraint upon one party is not greater
than protection to the other party requires, the contract may be
sustained. The question is whether, under the particular cir-
cumstances of the case and the nature of the particular contract
involved in it, the contract is or is not unreasonable.^ Cases
must be judged according to their circumstances, and can only
be rightly judged when the reason and grounds of the rule are
carefully considered.
There are two principal grounds on which the doctrine is
founded that a contract in restrain of trade is void as against
public policy : 1. The inju^ry to the public by being deprived of
the restricted party's industry. 2. The injury to the party him-
self by being precluded from pursuing his occupation, and thus
being prevented from supporting himself and his family. It is
evident that both these evils occur when the contract is general,
not to pursue one's trade at all, or not to pursue it in the entire
realm or country. The country suffers the loss in both cases ;
and the party is deprived of his occupation, or is obliged to ex-
patriate himself in order to follow it.^ And a contract in re-
1. 1 P. Wm. 181; Dier's Case, D. 351; Leather Cloth Co. v. Lor-
Year Beck. 2 Hen. V, fol. 5, p. 26. sent, 9 Eq. 345.
2. Rousillon v. Rousillon, 14 Ch. 3. Oregon Steam Nav. Co. v.
Winsor, 20 Wall. (U. S.) 64, 68;
339
§§ 309, 310 CONTEACTS AGAINST PUBLIC POLICY, Ch. 11
straint of trade must be based on a sufficient consideration/ It
may be unlimited as to time, but limited as to space ; it may be
unlimited as to space, but limited as to time ; or it may be un-
limited both as to time and space.
§ 310. Unreasonable restraint. — In Alger v. Thacber,^ it is
laid down that the unreasonableness of contracts in restrain of
trade and business is very apparent from several obvious con-
siderations. Among these are such contracts which injure the
parties making them, because they diminish their means of pro-
curing livelihood and a competency for their families ; they
tempt improvident persons, for the sake of present gain, to de-
prive themselves of the power to make future acquisitions, and
they expose such persons to imposition and oppression ; they
tend to deprive the public of the services of men in the employ-
ments and capacities in which they may be most useful to the
community as well as to themselves ; they discourage industry
and enterprise, and diminish the products of ingenuity and
skill ; they prevent competition and enhance prices ; they expose
the public to all the evils of monopoly. " All this is especially
applicable to wealthy companies and large corporations, who
have the means, unless restrained by law, to exclude rivalry,
monopolize business, and engross the market. Against evils
like this, wise laws protect individuals and the public by de-
claring all such contracts void."
In Oregon Steam ISTav. Co. v. Winsor,^ it was said that the
two principal grounds on which the doctrine is founded is (1)
Trenton Potteries Co. v. Oliphant, 1. 19 Pick. (Mass.) 51, 31 Am.
56 N. J. Eq. 680, 39 A. 923. Dec. 119.
4. Chapin v. Brown, 83 Iowa, 2. 20 Wall. (U. S.) 64. See,
156, 48 N. W. 1074, 12 L. K A. also, Allgeyer v. Louisiana, 165 U.
428, 32 Am. St. Rep. 297; Urmston S. 578, 17 S. Ct. 427; United States
V. Whitleley, 62 L. Times, 455 ; Col- v. Coal Dealers' Asso., 85 Fed. Rep.
lins V. Loehe, 4 App. Cag. 674; 252; United States v. Pipe and
Smalley v. Greene, 52 Iowa, 241, 3 Steel Co., 85 Fed. Rep. 271, 46 L. R.
N. 78, 35 Am. Rep. 267 and note; A. 122, 29 C. C. A. 141, 54 U. S.
Shober, etc. Co. v. Kertney, 107 111. App. 723.
344; Burckhardt v. Burckliardt, 36
Ohio St. 261.
340
Ch. 11 RESTRAINT OF TRADE. §§ 310, 311
the injury to the public by beini^ cleprivotl of the restricted
party's industry; (2) the injury to the party himself being pre-
cluded from pursuing his occupation, and thus being prevented
from supporting himself and his family.
§ 311. English doctrine as to limitation of time and space
— Reasonableness. — The doctrine as to restraint of trade is
founded upon public policy, and has undergone considerable
change since Mitchel v. Reynolds,^ as is shown by Davies v.
Davies.^
The result of the English authorities dovm to the present time
on this question of a covenant in restraint of trade appears to be
as follovrs: "Where the restraint is general, that is, without
qualification, it is held as being unreasonable and contrary to
public policy; where it is partial, that is, subject to some quali-
fication either as to time or space, then the question is whether
it is reasonable, and, if reasonable, it is good in law. In con-
sidering the question of reasonableness, the points to which the
attention of the court is specially directed are the limits of time
and of space and the protection required for the trade of the
covenantee, this latter point involving the examination of the
nature and extent of the trade. The reasonableness depends on
all the circumstances, which must be duly weighed in each case.
If the restraint is greater than can possibly be required for the
protection of the business of the covenantee the covenant is
unreasonable and void.^
The circumstances which may be legitimately inquired into
on this question of reasonableness include the general circum-
stances under which the trade is carried on at the time when
the covenant is entered into. The improvements in the means
of communication which have taken place in recent times by
reason of railways, steamships, postal facilities, the telegraph,
and the telephone, are within the scope of the inquiry, and bear
1. P. Win. 181. & Wei. 548, 561; Rousillon v. Rou-
2. 3'6 Ch. Div. 3o9. sillon, 14 Ch. D. 363 ; Badische
3. Hitchcock v. Coper, 6 Adol. & Anilin Und Soda Fabrik v. Schott,
E. 438. 453 ; Ward v. Byrne. 5 Mees. ( 1802) , 3 Ch. 447.
341
§§ 311, 312 CONTRACTS AGAINST PUBLIC POLICY. Ch. 11
particularly on the question of space ; they are relevant more or
less in proportion to the greater or lesser area within which the
trade sought to be protected is carried on and to the varying
nature of the trade itself. Such matters, of course, have little
or no relevancy to a small local business, but they are relevant
in reference to the large trade of a merchant and a widely-ex-
tended news-collecting agency, or to any other trade covering a
great portion of the globe. What might in former ages have
been considered an unreasonable restriction would not neces-
sarily be so held in the altered circumstances of the present
time. And so a covenant unlimited as to space may, under the
circumstances be reasonable.*
§ 312. American doctrine as to limitation of time and space.
— It may be that the American decisions have not gone so far
as the English, but the old law has been a great deal modified in
some jurisdictions in view of modern methods of doing business.^
And an agreement by which one binds himself not to exercise
his trade or profession is not void simply because the agreement
covers the whole territory of the State. Such an agreement
cannot be enforced if unreasonable, and it is unreasonable if its
restrictions extend beyond what is apparently necessary for the
protection of the one in whose favor it is made.^
4. Maxim Nordenfelt Guns and v. Roeber, 106 N. Y. 473, 13 N. E.
Ammunition Co. v. Nordenfelt 419, 60 Am. Eep. 464; Whitney v.
(1893),! Ch. 630, App. Cas. (1894) Shiyton, 40 Me. 224; Gamewell Fire
535. Alarm Tel. Co. v. Crane, 160 Mass.
1. Oregon Steam Nav. Co. v. 50, 35 N. E. 98, 22 L. R. A. 673 and
Winsor, 20 Wall. (U. S.) 164; note, 39 Am. St. Rep. 458.
Fowle V. Park, 131 U. S. 88, 9 S. Ct. 2. Herreshofif v. Boutineau, 17 R.
658; Ellerman v. Stock Yards Co., I. 3, 19 A. 712, 8 L. R. A. 469 and
49 N. J. Eq. 217, 23 A. 287: West- note, 33 Am. St. Rep. 850; Pierce
em Wooden Ware Asso. v. Starkey, v. Fuller, 8 Mass. 223, 226, 5 Am.
84 Mich. 76, 47 N. W. 604, 11 L. R. Dec. 102; Oilman v. Daught, 13
A. 503 and note, 22 Am. St. Rep. Gray (Mass.), 356, 74 Am. Dec.
686; Matthews v. Associated Press, 634; Angeer v. Webber, 14 Allen
136 N. Y. 333, 32 K E. 981, 32 Am. (Mass.), 211, 92 Am. Dec. 748 and
St. Rep. 741; Oliver v. Gilmore, 52 note; Handforth v. Jackson. 150
Fed. Rep. 562; Diamond Match Co. Mass. 149, 22 N. E. 634; Bishop v.
342
Ch. 11
RESTRAINT OK TRADE.
§ 312
All the English cases which assert the doctrine that all con-
tracts in general restraint of trade arc void, wore cases where
the contract before the court was limited or partial. The same
is generally true of the American casos.^ If the agreement is
reasonable it will be upheld. Thus, a covenant in a deed not
to sell intoxicating liquors on the premises in less quantities
than five gallons is reasonable ;■* and so is a contract not to manu-
facture ochre in a certain county f or not to carry on a trading
business on certain premises;^ or to sell sand from certain
premises by the vendee f or not to sell a particular line of goods
in a certain town f or not to sell to any person in a certain town
or State except the promisee.*
The tendency of the courts in the United States is to follow
the late English decisions, which hold that an agreement not to
exercise a trade or profession is not void simply because it is
not limited as to space, provided it be reasonable.^"
Palmer, 146 Mass. 469, 16 N. E.
294, 4 Am. St. Rep. 339 ; Thomas v.
Miles, 3 Ohio St. 274; Trenton Pot-
teries Co. V. Oliphant, 56 N. J. Eq.
608, 39 A. 923; Western Dist.
Warehouse Co. v. Hobson, 96 Ky.
550, 29 S. W. 308 ; Peltz v. Eichele,
62 Mo. 171; Berlin Machine Works
V. Perry, 71 Wis. 495, 35 N. W. 82,
5 Am. St. Rep. 236 ; Sutton v. Head,
86 Ky. 156, 5 S. W. 410, 9 Am. St.
Rep. 274; Warfield v. Booth, 33
Md. 63; Goodman v. Henderson, 58
Ga. 567.
3. Diamond Match Co. v. Roeber,
106 N. Y. 473, 13 N. E. 419, 60 Am.
Rep. 464.
4. Sutton V. Head, 86 Ky. 156, 5
S. W. 410, 9 Am. St. Rep. 274.
5. Smith's Appeal, 113 Pa. St.
679, 6 A. 251.
6. Morris v. Manuf. Co., 83 Ala.
665, 3 So. 689.
7. Hodge V. Sloan, 107 N. Y. 244,
17 N. E. 335, 1 Am. St. Rep. 81 T..
8. Clark v. Crosby, 37 Vt. 188.
9. JNewell V. Meyendorf, 9 Mont.
254, 23 P. 333, 18 Am. St. Rep.
739; Keith v. Optical Co., 48 Ark-
138, 2 S. W. 777; Roller v. Ott, 14
Kan. 009.
10. Herreshoff v. Boutineau, 17
R. I. 3, 19 A. 712, 8 L. R. A. 469
and note, 33 Am. St. Rep. 850 ; Dia-
mond Mat«h Co. V. Roeber, 106 N.
Y. 473, 13 N. E. 419, 60 Am. Rep.
464; Ellerman v. Stock Yards Co.,
49 N. J. Eq. 217, 23 A. 287; Na-
tional B. Co. V. Hospital Co., 45
Minn. 272, 47 N. W. 806, 11 L. R.
A. 437 and note; Oakdale [Manuf.
Co. V, Garst, 18 R. I. 484, 28 A.
973, 49 Am. St. Rep. 784; Carter v.
Ailing, 43 Fed. Rep. 208; Oregon
Steam Nav. Co. v. Winsor, 20 Wall.
(U. S.) 64; Beal v. Chase, 31 Mich.
490; Eisel v. Hayes, 141 Ind. 41, 40
N. E. 119; Martin v. Murphy, 129
Ind. 464, 28 N. E. 1118; Hurson v.
Gaum, 59 111. App. 60; Gregory v.
343
§ 313
CONTRACTS AGAINST PUBLIC POLICY.
Ch. 11
§ 313. Test of reasonableness. — Any agreement in restraint
of trade of one of the parties to a contract is void, as being
against public policy, unless founded upon a valuable considera-
tion and limited, as regards time, space, and the extent of the
trade, to what is reasonable under the circumstances of the
case, for the reason that such contract tends to deprive the pub-
lic of the services of parties in the employment and capacities
in which they are most useful, and that it tends to expose the
public to the evil of monopoly.^
It is essential, in order not to be unreasonable, that the
restraint imposed must not be larger than is plainly required
for the protection of the party with whom the contract is made,
and whether it is reasonable in a given case is a question, not of
fact, but of law for the court. ^
The question is whether the restraint is such only as to afford
a fair protection to the interests of the party, in favor of whom
it is given and not so large as to interfere with the interests of
the public. Whatever restraint is larger than the necessary
Spicker, 110 Cal. 15D, 42 P. 576, 52
Am. St. Rep. 70; Neal v. Hines,
145 Ind. 32, 43 N. E. 946; Davis v.
Brown, 98 Ky. 475, 32 S. W. 614, 36
S. W. 534; Meyer v. Estes, 164
Mass. 457, 41 N. E. 683, 32 L. R. A.
283; Smith v. Brown, 164 Mass.
584, 42 N. E. 131; Cowan
V. Fairbrother, 118 N. Car.
406, 24 S. E. 212, 32 L. R. A. 829
and note, 54 Am. St. Rep. 733;
Western Dist. Warehouse Co. v.
Hobson, 96 Ky. 550, 29 S. W. 308;
Consumers Oil Co. v. Nune-
maker, 142 Ind. 560, 41 N". E. 1048,
51 Am. St. Rep. 192; Lufkin Rule
Co. V. Fringeli, 57 Ohio, 596, 49 N.
E. 1030, 41 L. R. A. 185, 63 Am. St.
Rep. 736.
1. Kellogg V. Larkin, 3 Pin.
(Wis.) 123, 56 Am. Dee. 164; Laub-
enheimer v. Mann, 17 Wis. 542;
Alger V. Thacher, 19 Pick. (Mass.)
.51, 31 Am. Dec. 119; Bishop v.
Palmer, 146 Mass. 469, 473, 16 N.
E. 299, 4 Am. St. Rep. 339 ; Oregon
Steam Nav. Co. v. Winsor, 20 Wall.
(U. S.) 66, 67; Gibbs v. Gas Co.,
130 U. S. 396, 9 S. Ct. 553; Lange
V. Werk, 2 Ohio St. 59; Gamwell
Fire A. Tel. Co. v. Crane, 160 Mass.
50, 35 N. E. 98, 22 L. R. A. 673 and
note, 39 Am. St. Rep. 458 ; Richards
V. Seating Co., 87 Wis. 503, 58 N.
W. 787; More v. Bennett, 140 111.
69, 29 N. E. 888, 15 L. R. A. 361, 33
Am. St. Rep. 216; Standard Cotton
Oil Co. V. Adoue, 83 Tex. 650, 19
S. W. 274, 15 L. R. A. 598, 29 Am.
St. Rep. 690; Emery v. Ohio Co.,
47 Ohio St. 320, 24 N. E. 660, 21
Am. St. Rep. 819.
2. Pollock on Contracts, 366
368; Washburn v. Dosch, 68 Wis.
440, 32 N. W. 551, 60 Am. Pep.
873.
344
Ch. 11 RESTRAINT OF TRADE. §§ 313, 314:
protection of the party can be of no benefit to either. It can
only be oppressive; and if oppressive, it is, in law, unreason-
able.^
The common law reco^izes that there are reasonable com-
binations and unreasonable combinations — that is to say, some
promote and some prejudice public interests. The United
States Supreme Court has interpreted the Federal law"* as a
declaration of public policy that all restraints of interstate
trade is unreasonable.
§ 314. The latest statement of the test of reasonableness. —
All restraints upon trade are bad as being in violation of public
policy, unless they are actually and not unreasonably for the
protection of parties dealing legally with some subject-matter
of contract.^ A limited restraint may be good, provided the re-
straint is reasonable and such as was required for the protection
of parties with whom the covenant is entered into.^
In olden times all restraints of trading were considered prima
facie void. An exception was introduced when the agreement
to restrain from trading was only from trading in a particular
place and upon reasonable consideration, leaving still invalid
agreements to restrain trading at all. Such general restraint
was then considered to be of no benefit even to the covenantee
himself; but in the present civilization it may be said tliat
3. Horner v. Graves, 7 Bing. 735, Rep. 850; National Ben. Co. v. Hos-
743. pital Co., 45 Minn. 272, 47 N. W.
4. Act of Congi-ess, July 2, 1890, 806, 11 L. R. A. 437 and note;
ch. 647 ; 26 Stat. 209. Gibbs v. Gas Co., 130 U. S. 409, 9 S.
1. Leather Cloth Co. v. Lorsont, Ct. 553; Nordenfelt v. Maxim Nor-
L. R. 9 Eq. 354; Rousillon v. Rou- denielt Guns and Anuuunition Co.,
sillon, 14 Ch. Div. 351. App. Cases (1894), 535; Eisel v.
2. Davies v. Davies, 36 Ch. Div. Hayes, 141 Ind. 41, 40 N. E. 119;
359; Leslie v. Lorillard, 110 N. Y. Martin v. Murphy, 129 Ind. 464, 28
519, 18 N. E. 636, 1 L. R. A. 456 N. E. 418; Brovm v. Kling, 101
and note; Diamond Match Co. v. Cal. 295, 35 P. 995; Fuller v. Hope,
Roeber, 106 N. Y. 473, 13 N. E. 103 Pa. St. 62, 29 A. 779; Trenton
419, 60 Am. Rep. 464; Herreshotf Potteries Co. v. Olipliant, 56 N. J.
V. Boutineau, 17 R. I. 3, 19 A. 712, Eq. 680, 39 A. 923.
9 L. R. A. 469 and note, 33 Am. St.
345
§ 314 CONTKACTS AGAINST TUBLIC POLICY. Ch. 11
science and invention have almost annihilated both time and
space. Consequently there should no longer exist any cast-iron
rule making void any agreement not to carry on a trade any-
where. The generality of time or space must always be a most
important factor in the consideration of reasonableness, though
not per se a decisive test. Hence, a patentee and manufacturer
of guns and ammunition for purposes of war may covenant with
a company to which his patents and business had been trans-
ferred that he will not for twenty-five years engage except on
behalf of the company either directly or indirectly in the busi-
ness of a manufacturer of gims or ammunition. Such a cove-
nant though unrestricted as to space was not, having regard to
the nature of the business and the limited number of the cus-
tomers, wider than was necessary for the protection of the
company, nor injurious to the public interests of the country;
it is, therefore, valid and may be enforced.^ The test of reason-
ableness is the test of validity of contracts of this kind.*
Some courts have formulated arbitrary rules. Thus, in Ill-
inois the court says in relation to space that trade and business
is not affected by State lines, and a contract may be good in
restraint of trade which embraces, within reasonable limits,
parts of different States, but an agreement which applies to the
whole State is void, and cannot be enforced.^ The reason of
this rule is stated to be that it is against public policy of the
State that its citizens should not have the privilege of pursuing
their lawful occupation at some place in the State, and not be
compelled to leave the State to engage in their business and to
support their family. The doctrine of a ISTew York case® is more
reasonable, which holds that the question, what is a general re-
straint of trade, does not depend on State lines ; that they are
3. Nordenfelt v. Maxim Norden- 5. Union Strawboard Co. v. Bon-
felt Guns and Ammunition Co., field, 193 111. 420, CI N. E. 1038, 86
App. Cas. (1894) 535, (1893) 1 Am. St. Rep. 346. See, also, Chap-
Ch. 630. pel V. Brockway, 21 Wend. (N. Y.)
4. Oakdale Manuf. Co. v. Garst, 157, an obiter dictum on this point.
18 R. I. 484, 28 A. 973, 23 L. R. A. 6. Diamond Match Co. v. Roeber,
639, 49 Am. St. Rep. 784. 106 N. Y. 473, 13 N. E. 419, 60 Am.
Rep. 464.
346
Ch. 11 RESTKAINT OF TRADE. §§ 314, 'M5
not the boundaries of trade and commerce and that a restraint
is not necessarily general which embraces an entire State. So,
in Illinois an absolute covenant to refrain from trade within the
State where the contract is made, is necessarily fatal to its
validity. In New York such contract is not necessarily void,
because what is a general restraint of trade does not depend upon
State lines. The Illinois rule is arbitrary, and such a construc-
tion should not be on such contract as will make it a general
restraint of trade when on its face it is only partial.
§ 315. Injuring the trade of another. — One's motives in ex-
ercising an absolute right cannot be questioned ; but Avhen the
right is correlative, it must be exercised with due regard to the
rights of others ; hence, one w^ho exercises such a right for the
sole purpose of injuring another is liable for the injury inflicted.
This is illustrated in cases involving the liability of an employer
to a third person for injury to trade caused by the employer
threatening to discharge his workmen if they continued to trade
with such person. Thus, an employer is relieved from liability
where he acted for the purpose of securing the trade for himself.^
Here the employer was seeking to build up his trade and the
doctrine announced is correct. But in another case the court
relieved the emploA'er from liability on the ground that he had
a right to discharge his employees.^
The question whether an act which injures another is rend-
ered actionable solely for the reason that it was done in malice,
is not answered the same way by the different courts. So it
has been held that a merchant is not liable to an action for
damages by sending a circular to the retail trade, offering to sell,
at a reduced price, a small quantity of a manufacturer's goods
for the purpose of injuring and depressing the price of the
goods on the market.^ But in another case an agreement among
1. Robinson v. Texas Pine Land 3. Passaic Print Works v. Dry
Asso. (Tex. Civ. App.), 40 S. W. Goods Co., 181 U. S. 617, 21 S. Ct.
Rep. 843. 922, 62 L. R. A. 673 and note.
2. Payne v. Western, etc., Co., 13
Lea (Tenn.), 507, 49 Am. Rep. 666.
347
§§ 315, 310 CONTRACTS AGAINST PUBLIC POLICY. Ch. 11
several independent newspaper publishers to compel a fourth
person engaged in like business, either to reduce his rates for
advertising or lose customers, is a malicious conspiracy to injure
such publisher's business, and the parties are liable.*
AKTICLE II.
Nature of the Transaction.
oECTiOK 316. Construction of Contract.
317. Dealing with Exclusive Persons.
318. Sale of Secret Process.
319. Sale of Good- Will of a Business.
§ 316. Construction of the contract. — The meaning oi a
contract of this character, however, is not to be found solely
from a consideration of its expressed terms. Courts look to
all the circumstances surrounding the parties, and attendant
upon the transaction, and from a consideration of these circum-
stances in connection with the expressions of the undertaking,
they will first construe the contract, and then proceed to pass
upon its reasonableness as thus construed. So where the parties
are engaged in a certain business, in and covering a certain
territory, which could easily be covered by them, and were deal-
ing in competition with each other, one party may sell to the
other ; and if the space is not expressed, the contract will be con-
strued so as to include and cover the territory of their previous
competition ; so it will become specific as to space and time,
and the character of the dealing to be restrained, and will,
therefore, be reasonable and valid.^ And the mere fact that the
4. Durner v. Huegin, 110 Wis. Hardware Co., 87 Ala. 206, 6 So.
189, 85 N. W. 1046, 62 L. K. A. 700 41, 13 Am. St. Rep. 23 and note;
and note; Huegin v. Wisconsin (U. Hubbard v. Miller, 27 Mich. 15;
S. S. Ct.), 37 Chi. Legal News, 108, Curtis v. Gokey, 68 N. Y. 300; War-
opinion filed Nov. 7, 1904, affirming field v. Booth, 33 Md. 63 ; Dethlifs
the Wisconsin decision. v. Tonisen, 7 Daly (N. Y.), 354;
5. Moore, etc. Hardware Co. v. Beal v. Chase, 31 Mich. 490; Morse
348
Ch. 11 RESTRAINT OF TRADE. §§ 316, 317
duration of the restriction as to time is indefinite or perpetual,
will not of itself avoid the contract if it be limited as to place
and is reasonable and proper in other respects.^
§ 317. Dealing with exclusive persons. — A party may con-
tract to deal exclusively with one person. A vendor may bind
himself to manufacture and sell exclusively to one person.^ So,
also, a vendee may agree to buy exclusively from one person.^
An agreement to work as a servant or agent for another ex-
clusively for a certain period is valid.^ And contracts may be
valid which provide for exclusive dealing with a particular
person.'' This rule applies where there is no discrimination and
no contravention of constitutional rights ; otherwise it is illegal.
Thus, a board of education has no right in making contracts
for public improvements, to compel the contractor to employ
only union labor. Such contract tends to create a monopoly
in bidding for work, and in selecting members of certain so-
cieties. Such provision in a contract would limit competition
by preventing contractors from employing any except certain
persons, and by excluding all others engaged in the same work,
and is therefore illegal and void f such an agreement is in vio-
Machine Co. v. Morse, 103 jNIass. 2. Brown v. Rounsavell, 78 111.
73, 4 Am. Rep. 513; Oregon Steam 589; Thornton v. Sherratt, 8 Taunt.
Nav. Co. V. Winsor, 20 Wall. (U. 529; Catt v. Tourie. L. R. 4 Ch.
S. ) 64. See, also, Mollyneairx v. App. 654; Morris v. Colman, 18
Wittenberg, 39 Neb. 547, 58 N. W. Ves. 437.
205; Fuller v. Hope. 163 Pa. St. 3. Hartley v. Cummings, 5 C. B.
62, 29 A. 779. 247; Pilkington v. Scott, 15 Mees.
6. Hitchcock v. Coper, 6 Adol. & & Wei. 657; De Francisco v. Bar-
El. 447; Bunn v. Guy, 4 East, 190; num, 43 Ch. Div. 174.
Mallen v. May, 11 Mees. & Wels. 4. George v. East Tenn. C. Co.,
652; Pierce v. Woodward, 6 Pick. 15 Lea (Tenn.), 455, 54 Am. Rep.
(Mass.) 206; Cook v. Johnson, 47 425; Clay v. Powell. 85 Ala. 538, 5
Conn. 178. So. 330, 7 Am. St. Rep. 70; Roller
1. Donnell v. Bennett, 22 Ch. D. v. Ott, 14 Kans. 609; Keith v.
835; Central S. R. Co. v. Cushman, Herschberg Co., 48 Ark. 139, 2 S.
143 Mass. 353, 9 N. E. 629 ; Arnot W. 777.
V. Pittston, etc., Co., 68 N. Y. 558, 5. Adams v. Breman, 177 111. 194,
23 Am. Rep. 190. 52 N. E. 314, 69 Am. St. Rep. 222,
42 L. R. A. 718.
349
§§ 31Y-319 CONTRACTS AGAINST PUBLIC POLICY. Ch. 11
lation of common right, and tends to create a monopoly and is
void.®
§ 318. Sale of secret process. — A party has the right to sell
his business, including as an essential part thereof the secret
process, and, in order to place the purchaser in the same posi-
tion that the vendor occupied, to promise to divulge the secret
to him alone and keep it from anyone else. Having the
right to make the promise, the vendor has the right to make it
good to the vendee to protect him by covenants with proper
safeguards against the consequences of any violation. Such
covenant is not in general restraint of trade, but is a reasonable
measure of mutual protection to the parties, as it enables the
one to sell at the highest price and the other to get what he paid
for. It imposes no restriction upon either that is not beneficial
to the other by enhancing the price to the seller or protecting
the purchaser.' It is very clear that such an agreement is not
opposed to public policy, even if the restriction was unlimited
as to both time and territory,^ Restraint of trade is not ap-
plicable to a business which is a secret, and not known to the
public, because the public has no right in a secret.^
§ 319. Sale of good-will of a business. — A sale of the good-
will simply, and no more, implies no obligation on the part of
the vendor not to engage in the same business at another place
in the same locality.^ But it appears that if the sale of the
6. Holden v. Alton, 179 111. 318, Co. v. Pool, 51 Hun (N. Y.), 107, 4
53 N. E. 556. N. Y. S. 861.
7. Tode V. Grass, 127 N. Y. 480, 9. Taylor v. Blanchard, 13 Allen
23 N. E. 469, 13 L. R. A. 652 and (Mass.), 370, 90 Am. Dec. 203;
note, 24 Am. St. Rep. 475. Vickery v. Welch, 19 Pick. (Mass.)
8. Diamond Match Co. v. Roeber, 523; Peabody v. Norfolk, 98 Mass.
106 N. Y. 473, 13 N. E. 19, 60 Am. 452, 96 Am. Dec. 664; Leather
Rep. 464; Hodge v. Sloan, 107 N. Cloth Co. v. Lorsont, 9 Eq. 345;
Y. 244, 17 N. E. 335, 1 Am. St. Rep. Morse Mach. Co. v. Morse, 103
816; Leslie v. Lorillard, 110 N. Y. Mass. 73, 4 Am. Rep. 513.
519, 18 N. E. 363, 1 L. R. A. 456 1. Moreau v. Edwards, 2 Tenn.
and note; Watertown Thermometer Ch. 347; Porter v. Gorman, 65 Ga.
350
Ch. 11
RESTRAINT OK TRADE.
§ 319
good-will is "vvitliin certain limits, which is the leo^itimate sub-
ject matter of the contract, it carries with it the implied cove-
nant, as in other sales, that the vendor will not do anything to
disturb or injure the vendee in the enjoyment of that which he
purchased.^
A contract by a physician for the sale of his practice and
good-will in a specified town is not void as against public policy.'
If the agreement is not to engage in the same business for a time
certain, the vendor may, on the expiration of the time, enter into
the same business and solicit his former patrons.* If the sale is
compulsory he may again enter the business and solicit his for-
mer trade.^ After selling the good-will and business, the ven-
dor is not prohibited from hiring to a party in the same business
and in the same town.^ The sale of the good-will of a school
does not obligate the vendor to use personal efforts to influence
the attendance of pupils.^
11; Bergamini v. Bastian, 35 La.
Ann. 60, 48 Am. Rep. 216 and note;
Bassett v. Percival, 5 Allen
(Mass.), 345.
2. Dwight V. Hamilton, 113 Mass.
175; Munsey v. Butterfield, 133
Mass. 492; Angler v. Webber, 14
Allen (Mass.), 211, 92 Am. Dec.
748 and note; Rauft v. Reimers, 200
111. 386, 65 N. E. 720, 60 L. R. A.
291.
3. Dwight V. Hamilton, 113 Mass.
175 ; Cole v. Edwards, 93 Iowa, 477.
61 N. W. 940, 60 L. R. A. 291 ; Gil-
man V. Dwight, 13 Gray (Mass.),
356, 74 Am. Dec. 634; Atkyns v.
Kinnier, 4 Exch. 776; Hoyt v.
Holly, 39 Conn. 326, 12 Am. Rep.
390. See, also, Powers v. Stout, 67
Iowa, 341, 25 N. W. 273; Haldeman
V. Sinionton, 55 Iowa, 144, 7 N.
493; Smalley v. Greene, 52 Iowa,
241, 3 N. 78, 35 Am. Rep. 267 and
note; Hedge v. Lowe, 47 Iowa, 137;
French v. Parker, 16 R. I. 219, 14
A. 870, 27 Am. St. Rep. 733; Bimn
V. Guy, 4 East, 190; Com-
pare Mandeville v. Harman, 42 N.
J. Eq. 185, 7 A. 37.
4. Hanna v. Andrews, 50 Iowa,
462.
5. Walker v. Mattraw, 19 Ch. D.
355.
6. Grimm v. Warner, 45 Iowa,
106.
7. McCord v. Williams, 15 Norris
(Pa.), 78.
351
CHAPTER XII.
Industrial Combinations.
ARTICLE I.
Unlawful Combinations and Cokpokate Trusts.
Section 320. Monopoly — Contracts in Restraint of Trade.
321. Restraint, General or Partial.
322. Legal Combinations.
§ 320. Monopoly — Contracts in restraint of trade. — At
common law a contract callinj^ for a reasonable restraint of
trade will be upheld. It is only the unreasonable restraint of
trade that receives the condemnation of the law, whereby mon-
opolies are created. Monopolies may be divided into three
classes : 1. All sources of supply may be put in the hands of one
company, so no other source of supply is available. Such a
monopoly is absolute, and can sell its products at any price
limited to the necessities of commerce. 2. The monopoly may
have the best and most economical source of supply, but compe-
tition still be possible, when competition can be suppressed by
selling so low by the monopoly that competition is impossible.
3. The monopoly may use its general control of the market to
require all parties to buy from it alone under penalty of being
denied further supplies. This method is generally practiced by
the monopoly.
Monopolies are as old as human history. They were for-
bidden by the laws of Greece and Rome; they are prohibited
by the common law. During a part of Queen Elizabeth's reign
they were not forbidden. They became so exorbitant in their
prices that they became intolerant and most pernicious in their
consequences, and were regulated. Parliament chartered the
352
Ch. 12 INDUSTRIAL COMBINATIONS. § 320
East India Company in order to build up an empire in the East,
but it became so oppressive that it was overthrown as a matter of
necessity. Many thousands of monopolies exist in the United
States. The gigantic combinations are authorized to buy up
the stock of any other corporation, so they may gain control of
any industry. Before the time of gigantic industrial and com-
mercial combinations, there was individualistic initiative, and
self-reliance produced rivalry that created the keenest interest
and kept all the faculties in continual activity. The original
colonies grew under this system into one of the wealthiest na-
tions in Christendom. The wealth thus created by years of
struggle and competition has been utilized by the combinations,
thus crushing a system of competition which has accomplished
the greatest commercial success known to history, proving the
old maxim that competition is the life of trade. These indus-
trial and commercial combinations, some times called trusts,
are taking the place of competition and business rivalry, with-
out trying to protect the legal rights of the individual; but
now the law must protect the citizen from the danger of the de-
struction of his means of livelihood. At the present time many
avenues of individual success are practically closed to men of
moderate fortunes, and are sealed against young men of ability
and energy. This great accumulation of capital is a menace
to the very foundation of the republic. Such vast and arbi-
trary combinations will forever retard the equal distribution
of wealth. The unbroken experience of ages has clearly estab-
lished the fact that competition is the system conducive to the
best interest of a people. In all of the States where the com-
mon law prevails, contracts greatly in restraint of trade, and
monopolies of all kinds are illegal; and though some States
have chartered corporations with powers '"to do all things
that a natural person can do," yet such corporations cannot
create a monopoly, for a natural person is forbidden to do
that without violating the law. Some of the States favor these
combination and derive a considerable revenue from the grant
of unlimited charters.
353
§ 320
CONTKACTS AGAINST PUBLIC POLICY.
Ch. 13
The common law and statutory law have been applied to sup-
press these monopolies in many of the States, and how well
their application has remedied the evils will now be considered.
When a combination is formed among parties which create
a monopoly by restricting competition and controlling the price
of an article of commerce, the contract is void at common law
and against public policy/ Hence, where a number of persons
enter into an agreement the object of which is purely and sim-
ply to silence and stifle competition among themselves, the agree-
ment is in restraint of trade, and void as against public policy.'
Thus, a combination among brewers to prevent competition
among themselves in the sale of beer is illegal.^
Combinations of this character are illegal.* Thus, where a
contract is entered into by the grain dealers of a town, which
on its face indicates that they had formed a partnership for the
1. United States v. Feight Asso.,
166 U. S. 290, 17 S. Ct. 540;
Cummings v. Stone Co., 164 N. Y.
401, 58 N. E. 523, 52 L. R. A. 262,
79 Am. St. Rep. 655; Emery v.
Candle Co., 47 Ohio St. 320, 24 N.
E. 660, 21 Am. St. Rep. 819; Salt
Co. V. Guthrie, 35 Ohio St. 666;
Pittsburg Carbon Co. v. McMillin,
119 N. Y. 346, 23 N. E. 530, 7 L.
R. A. 46; Richardson v. Buhl, 77
Mich. 632, 43 N. W. 110, 6 L. R. A.
457 and note; Santa Clara, etc., Co.
V. Hayes, 76 Cal. 387, 18 P. 391, 9
Am. St. Rep. 211; Pacific Factor
Co. V. Adler, 90 Cal. 110, 27 P. 36,
25 Am. St. Rep. 102; Stewart v.
Mallon, 43 N. Y. 149, 3 Am. Rep.
678; Clancey v. Salt Manuf. Co.,
62 Barb. (N. Y.) 407; Cohen v.
Envelope Co., 166 N. Y. 292, 59 N.
E. 906.
2. Nester v. Brewing Co., 161 Pa.
St. 473, 29 A. 102, 24 L. R. A. 247,
41 Am. St. Rep. 894; People v. Milk
Exchange. 145 N. Y. 267, 39 N. E.
1062, 27 L. R. A. 4"?7, 45 Am. St.
Rep. 609; Judd v. Harrington, 139
N. Y. 105, 34 N. E. 90; People v.
Sheldon, 139 N. Y. 251, 34 N. E.
785, 23 L. R. A. 221, 36 Am. St.
Rep. 609; Merz Capsule Co. v. Cap-
sule Co., 67 Fed. Rep. 414; Ford
V. Milk Shippers Asso., 155 Hi.
166, 29 N. E. 651, 27 L. R. A. 298;
State V. Standard Oil Co., 49 Ohio
St. 137, 30 N. E. 270, 15 L. R. A.
145, 34 Am. St. Rep. 541; Bishop v.
American Preserve Co., 157 HI. 284,
41 N. E. 765, 48 Am. St. Rep. 317.
3. Nester v. Brewing Co., 161
Pa. St. 473, 29 A. 102, 24 L. R. A.
247, 41 Am. St. Rep. 894.
4. State v. Distillery Co., 29
Neb. 700, 46 N. W. 155;
State V. Standard Oil Co., 49
Ohio St. 137, 30 N. E. 270, 15
L. R. A. 145, 34 Am. St. Rep. 541;
Distilling and Cattle Feeding Co. v.
People, 156 111. 448, 41 N. E. 188,
47 Am. St. Rep. 200; People v. Gas
Trust Co., 130 111. 268, 22 N. E.
798, 17 Am. St. Rep. 319.
354
Ch. 12 INDUSTRIAL COMBINATIONS. §§ 320, 321
purpose of dealing in grain, but the true object of which was
to form a secret combination which should stifle all competition
and enable the parties to control prices, it is void on the ground
of public policy.^ The common law forbids the organization of
such combinations, composed of numerous corporations and
firms. They are dangerous to the peace and good order of
society, and they arrogate to themselves the exercise of powers
destructive of the right of free competition in the markets of
the country, and, by their aggregate power and influence, im-
peril the free and pure administration of justice.^
The right of a railroad company to charge reasonable rates
does not include the right to enter into a combination with
competing roads to maintain reasonable rates.'^ So the legis-
lature may give a corporation the same powers to regulate trade
within its park that is generally granted municipal corporations
to regulate trade within their limits. And the power to regulate
a useful trade does not authorize its prohibition or the creation
of a monopoly.*
§ 321. Restraint, general or partial. — If it appears that such
a combination is injurious to the public, the courts will not
stop to inquire as to the degree of injury inflicted, nor whether
the restraint be geneeral or partial, nor will they consider the
form and declare purpose of the combination.^ The test ques-
5. Crafts v. McConoughy, 79 111. 8. Thousand Island Park Asso. v.
346, 22 Am. Kep. 171; India Rub- Tucker, 173 N. Y. 203, 65 N. E.
ber Co. v. Koch, 14 La. Ann. 168. 975, reversing 59 App. Div. 627, 69
6. Richardson v. Buhl, 77 Mich. N. Y. S. 1149.
632, 43 N. W. 1102, 6 L. R. A. 407 1. Texas Standard Oil Co. v.
and note; Emery v. Candle Co., 47 Adoue, 83 Tex. 650, 19 S. W. 274,
Ohio St. 320, 24 N. E. 660, 21 Am. 15 L. R. A. 598, 29 Am. St. Rep.
St. Rep. 819; State v. Nebraska 690; Raymond v. Leavitt, 46 Mich.
Distilling Co., 29 Neb. 700, 46 N. 447, 9 N. 525, 41 Am. Rep. 170;
W. 155; National Harrow Co. v. Qark v. Needham, 125 Mich. 84,
Quick, 67 Fed. Rep. 130; Bishop v. 93 N. W. 1027, 51 L. R. A. 785, 84
American Preserves Co., 157 111. Am. St. Rep. 559; Nester v. Brew-
284, 41 N. E. 765, 48 Am. St. Rep. ing Co., 161 Pa. St. 473, 29 A. 102,
317. 24 L. R. A. 247, 41 Am. St. Rep.
7. United States v. Freight Asso., 894.
166 U. S. 290, 17 S. Ct. 540.
355
§ 321 CONTRACTS AGAINST PUBLIC POLICY. Ch. 12
tion, in every case coming under tliis head, is whether or not a
contract in restraint of trade exists which is injurious to the
public interests. If injurious, it is void as against public pol-
icy. Courts will not stop to inquire as to the degree of injury
inflicted. It is enough to know that the natural tendency of
such contracts is injurious. The application of the rule does
not depend upon the number of those who may be implicated,
nor the extent of space included, in the combination ; but upon
the existence of injury to the public. One combination, con-
sisting of but part of those engaged in a given branch of trade,
may amount to a practical monopoly, while another, less extens-
ive in its scope, may, as well, bring disaster in its train. The
difference lies only in degree, but equally forbids the aid of
courts.^ The true test is the effect upon public interests.
And when the notice of the character of the combination is
in the channel of an assignee's title, he is not innocent of par-
ticipation in, or knowledge of, the illegality of the combination,
and must be treated as having taken subject to the disabilities
of his assignor.^
Where the combination is against public policy and void,
the law will not attempt to adjust differences which arise out
of the transactions which it condemns, even though the pro-
ceeds or profits of the unlawful combination may be in the
hands of the parties to it* If a State passes anti-trust laws,
they must not improperly discriminate. Thus, where a statute
discriminates in favor of agricultural products or live stock in
the hands of the producer or raiser, it is unconstitutional as in
2. More v. Bennett, 140 111. 69, Co., 161 Pa. St. 473, 29 A. 102, 24
29 N. E. 888, 15 L. R. A. 361, 33 L. R. A. 247, 41 Am. St. Rep. 894.
Am. St. Rep. 216. See, also, Hooker 4. Brooks v. Martin, 2 Wall. (U.
V. Vandewater, 4 Denio (N. Y.), S.) 70; Norton v. Blinn, 39 Ohio
349, 47 Am. Dec. 258; Hilton v. St. 145; Armstrong v. Toler, 11
Eckerley, 6 El. & Bl. 66; Salt Co. Wheat. (U. S.) 258; Snell v.
V. Guthrie, 35 Ohio St. 666; Morris Dwight, 120 Mass. 16; Cummings
Run Coal Co. v. Coal Co., 68 Pa. v. Foss, 40 111. App. 523. See, also,
St. 173, 8 Am. Rep. 159. McMullan v. Hoflfman, 69 Fed. Rep.
3. Chamberlain v. Barnes, 26 509; Atlas Nat. Bank v. Holm, 71
Barb. (N. Y.) 160; Riddle v. Hall, Fed. 489; Kine v. Turner, 27 Oreg.
99 Pa. St. 116; Nester v. Brewing 350, 14 P. 664.
356
Cb. 12 INDUSTRIAL COMBINATIONS. §§ 321, 322
conflict with the Fourteenth Amendment.^ So where an anti-
trust statute exempts agriculturalists and live stock raisers, it is
void.^
§ 322. Legal combinations. — In the cases in which com-
binations have been upheld by the courts, it was apparent from
the contracts themselves that they did not tend to create a mono-
poly or put an end to competition.^ If the combination is not
made to control prices or create a monopoly, it is not against
public policy." It does not follow that every combination in
trade, even though such combination may have the effect to
diminish the number of competitions, is therefore, illegal.
Monopolies are liable to be oppressive, and hence, are deemed
to be hostile to the public good. But combinations for mutual
advantage which do not amount to a monopoly and leave the
field of competition open to others are neither within the rea-
son nor the operation of the rule. Hence, where several com-
panies engaged in the manufacture of an article consolidate as
a corporation, for the purpose of stopping competition among
them, and agree that none of them shall engage in the business
for a certain time, such arrangement is not invalid as creating
a monopoly.' It has been held in Missouri that the Associated
Press is not a monopoly within the prohibition of the statute,
and it can make exclusive contract.* But the Illinois court
5. Connally v. Union Sewer Pipe 353, 9 X. E. 629; Swann v. Swann,
Co., 184 U. S. 541, 22 S. Ct. 431, 21 Fed. Rep. 301; Gompers v. Roch-
overruling, in effect. Price v. People, ester, 56 Pa. St. 194; Smith's Ap-
193 111. 114, 61 N. E. 844, 55 L. R. peal, 113 Pa. St. 549, 6 A. 251, 57
A. 588. Am. Rep. 483 and note; Raub v.
6. People V. Foundry Co., 201 111. Van Horn, 133 Pa. St. 573, 19 A.
236, 86 Am. St. Rep. 306 and note, 704.
66 N. E. 349. 2. Marsh v. Russell, 66 N. Y.
1. Shrainka v. Schoringhausen, 288.
8 Mo. App. 522; Ontario Salt Co. 3. Oakdale Manuf. Co. v. Garst,
V. Salt Co., 18 Grant's Ch. 540; 18 R. I. 484, 28 A. 973, 23 L. R. A.
San Diego Water Works v. Flume 639, 47 Am. St. Rep. 784. See, also,
Co., 108 Cal. 549, 41 P. 495, 29 L. Central Shade Roller Co. v. Cush-
R. A. 839 ; Collins v. Locke, L. R. 4 man, 143 Mass. 355, 9 N. E. 629.
App. Cas. 674; Central Shade 4. Star Publishing Co. v. Asso-
Roller Co. v. Cushman, 143 Mass. ciated Press, 159 Mo. 410, 81 Am.
357
§§ 322, 323 coNTEACTs against public policy. Ch. 12'
holds that the Associated Press must serve all newspapers alike
in furnishing news ; and a by-law disciplining its members who
dealt with news agencies contrary to the prohibition, creates a
monopoly of the news, and is contrary to the public policy of
the State of Illinois, and hence void.^
The Associated Press, in the Missouri case, claimed that it
was in form a corporation, but essentially it was only a co-
operative society based on agreement among its members to
gather the news ; that it was not engaged in news-gathering as
a commercial enterprise, and that it carried on its business
without any effort of profit-making, and that its laws binding
its members by exlcusive contracts were not in contravention
of any State or United States law. The Missouri court upheld
the legality of the Association's by-laws and the Illinois court
declared them void.
ARTICLE II.
Pooling and Merger of Railroad Business.
Section 323. Corporate Trusts.
324. Pooling Railroad Business.
325. Rebates to Shippers.
326. Monopoly in Interstate and International Trade.
327. Corporate Trusts and Labor.
§ 323. Corporate trusts — Industrial and commercial com-
binations. — Competition in trade has been the basis of our
civilization. But competition is coming to an end. The so-
called corporate trusts are absorbing the small owners and
producers of commercial products. It is estimated that the
United States Steel Corporation is a creation of a dozen pro-
ducers absorbed, which were themselves combinations of other
producers. The Amalgamated Copper Company has property
once belonging to nearly a thousand mining claims, each one
St. Rep. 368, 60 S. W. 91, 51 L. R. Associated Press, 184 111. 438, 56
A. 151. N. E. 822, 48 L. R. A. 568, 75 Am.
5. Inter-Ocean Publishing Co. v. St. Rep. 184.
358
Ch. 12 INDUSTRIAL COMBINATIONS. § 323
owned by a half a dozen miners. The department stores have
absorbed hundreds of business enterprises of merchants, butch-
ers, shoe-dealers, and the like. The Standard Oil Company
has absorbed, by contract and other ways, the business of ten
thousand corporations and merchants throughout the United
States. The great railway combinations are made up by the
combination of hundreds of smaller lines. This process of com-
bining of combinations is going on, and the end is not in
sight, and competition will no longer be an element that shall
conduce to the building up of our commerce. If the Northern
Pacific Railroad Company and the Great Northern Railroad
Company had been permitted to merge their interests, then all
the railroads of the nation could have pooled their issues, and
combined into one great transportation company on the perfec-
tion of whose manipulations the welfare of the nation might
depend. Competition must be restored, even if the State has to
enter the field. Whether the State should, under the right of
eminent domain, take the railroads and the coal lands, is a
question of great importance. The United States carries the
mail at a reasonable cost. Some cities furnish gas and water
to citizens at reasonable rates. But it is better for the individ-
ual to live under conditions where he can take the initiative
and become self-reliant and prosperous. But if this condition
cannot longer exist under the laws, the State must enter the con-
test, a master which can be governed by the citizens.
The great question now is to suppress the modern gigantic
commercial and industrial combinations, which are changing
the commercial jurisprudence of the United States, and driving
out of business the small trader and the small producer.
The States and the United States have passed laws prohibit-
ing these combinations, but so long as the combination returns
a good profit, the combinations wall endeavor to keep ahead of
the legislature. The law, so far as settled, will now be dis-
cussed, though some decisions are in conflict.
A combination cannot legalize its actions by incorporation
of its members into one corporate trust, because the incorpor-
359
§ 323 CONTRACTS AGAINST PUBLIC POLICY. Cll. 12
ation of an organization formed to monopolize a business, and
the transfer to the corporate trust of the property of the various
members, do not purge the combination of its illegality.^ So
where a corporate trust has for its object a virtual monopoly of
the business of producing petroleum, and of manufacturing,
refining and dealing in it and all its products, throughout the
entire country, and by which it might not merely control the
production, but the price at pleasure, it is an unlawful organ-
ization, and such agreement is not only ultra vires, but is con-
trary to the policy of the State, and is void.^ And so a corpor-
ation organized for the purpose of controlling the manufacture
and sale of friction matches, and by means of which all com-
petition was stifled and opposition crushed, and the whole bus^
iness of the country in that line engrossed by the corporation,
is a menance to the public, its object and direct tendency being
to prevent fair competition and to control prices.^
Until 1885 Congress made little or no attempt to regulate
interstate commerce. The railway monopoly was left to the
State to suppress. Then in 1890 it passed the Sherman Anti-
Trust Act,* which made a radical prohibition of all combina-
tions in restraint of trade, whether reasonable or unreasonable.^
This act has been the subject of judicial interpretation from
that time until the present. The famous Sugar Trust case^
1. Distilling and Cattle Feeding Am. St. Rep. 319; People v. Milk
Co. V. People, 156 111. 448, 41 N. E. Exchange Co., 145 N. Y. 267, 39
188, 47 Am. St. Rep. 200; State v. N. E. 1062, 27 L. R. A. 437, 45 Am.
Nebraska Distilling Co., 29 Neb. St. Rep. 609; Ford v. Milk Ship-
700, 46 N. W. 155. pers Asso., 155 111. 166, 39 N. E.
2. State V. Standard Oil Co., 49 651, 27 L. R. A. 298; Merz Capsule
Ohio St. 137, 30 N. E. 279, 15 L. R. Co. v. Capsule Co., 67 Fed. Rep.
A. 145, 34 Am. St. Rep. 541. See, 414; Judd v. Harrington, 139 N. Y.
also. People v. Sugar Refining Co., 105; People v. Sheldon, 139 N. Y.
121 N. Y. 582, 24 N. E. 834, 9 L. R. 251, 34 N. E. 785, 23 L. R. A. 221,
A. 33 and note, IS Am. St. Rep. 36 Am. St. Rep. 690.
843. 4. Act of Congress, July 2, 1890,
3. Richardson v. Buhl, 77 Mich. 26 Stat. 209.
632, 43 N. W. 1102, 6 L. R. A. 457 5. United States v. Freight Asso.,
and note. See, also. People v. Gas 166 U. S. 290, 17 S. Ct. 540.
Trust Co., 130 111. 268, 22 N. E. 6. United States v. Knight Co.,
788, 8 L. R. A. 497 and note, 17 156 U. S. 1, 15 S. Ct. 249.
360
Ch. 12 INDUSTEIAI. COMBINATIONS. § 323
holds that a combination to purchase refineries throughout the
United States is not a restraint of commerce, because the
products of the refineries thus purchased might never enter into
the channels of interstate trade. The authority of this case was,
in efiect, modified by the Addyston Pipe Company,^ where a
combination of pipe manufacturers sought to monopolize their
industry, and for that purpose allotted certain territory in dif-
ferent States to constituent companies wherein each of which
had the exclusive right, under certain conditions, to sell. The
court said, that though the manufacture of pipe was not com-
merce, yet the allotment of interstate territory for the sale of
pipe was a direct restraint of interstate commerce and therefore
the combination was illegal. This decision seems to conflict
with the Sugar Trust case as to what is interstate commerce.
A distinction exists between interstate and intrastate com-
merce. The former is regulated by Congress, the latter by the
State. So commerce carried on within a State cannot be reg-
ulated by Congress.^ Whenever a corporation of a State is ab-
sorbed by a foreign corporate trust, it ceases to be a domestic
corporation, and the trust owning it is a foreign corporation,
which must be subject to the same restrictions and duties as
domestic corporations, and has no greater power, if admitted
by comity into a State.® So where a corporate trust absorbs dif-
ferent corporations in different States, it and the corporations
absorbed become foreign to the State other than its situs, and
can be controlled by the State as to conditions of entry into
the State, and acceptance of imposed restrictions. A corpora-
tion as an entity, may not be able to create a corporate trust
or combination with itself, but its individual stockholders may,
7. Addyston Pipe and Steel Co. Anti-Trust Act."— 54 Cent. L. Jour.
V. United States, 175 U. S. 211, 20 349.
S. Ct. 96. See "A Remedy for the 8. Adyston Pipe and Steel Co. v.
Trust Evil."— 12 Yale L. Journal, United States, 175 U. S. 211, 20 S.
117; "The Power of Congress Over Ct. 96.
Combinations Affecting Interstate 9. Harding v. Am. Glucose Co.,
Commerce."— 17 Harv. Law Review, 182 111. 551. 55 N. E. 577, 74 Am.
83; "Combinations in Restraint of St. Rep. 189 and note.
Interstate Commerce Under the
361
§ 323 CONTRACTS AGAINST PUBLIC POLICY. Ch. 12
in controlling it, together with it, create snch trust or combina-
tion that will make it, with them, alike guilty, and the combina-
tion is illegal.^" Wherever there is a combination to suppress
competition, to fix the price of commodities and limit their pro-
duction, and to restrain trade, it is a monopoly and can be con-
trolled. And a corporate trust is created where a majority of
the stockholders, in competing companies, consolidate their in-
terests by conveying their property to a corporation, organized
for the purpose of taking their property, when the necessary
consequence of the combination is to control prices, limit pro-
duction or suppress competition in such a way as to create a
monopoly. ^^
Congress has endeavored to suppress interstate monopolies.
But when one reads the opinions of the United States Supreme
Court in United States v. Knight Co.^^ and Addyston Pipe and
Steel Co.,^^ he will agree that the law does not meet all the dif-
ficulties of the situation, for there is a seeming if not a real con-
flict in the two decisions. Whether the Sherman act^* has ex-
hausted the powers of Congress, is a question of which there
may be difference of opinion. It is certain that the anti-trust
act does not apply to contracts in restraint of trade, which in a
mere incidental way or in some remote manner comes into re-
lation with or between the source of interstate trafiic.^^ There is
a distinction betw^een the aggregation of properties by pur-
chase when the seller no longer retains any interest therein,
and a combination of owners and properties under one man-
agement where each owner's interest is continued in the opera-
tion. The first would not be in violation of the anti-trust law ;
the second undoubtedly would be. But where the transaction
10. Ford V. Milk Shippers Asso., 14. 26 U. S. Stat. 209, Act of
155 111. 166, 39 N. E. 651, 27 L. R. July 2, 1890; Compare United
A. 298 ; National Lead Co. v. Paint States v. Knight Co., 156 U. S. 1,
Store, 2 Mo. App. 723. 15 S. Ct. 249; Hopkins v. United
11. Harding v. Am. Glucose Co., States, 171 U. S. 578, 19 S. Ct. 40;
182 111. 551, 55 N. E. 577, 74 Am. Anderson v. United States, 171 U.
St. Eep. 189 and note. 8. 604, 19 S. Ct. 50.
12. 156 U. S. 1, rS S. Ct. 249. 15. United States v. Knight Co.,
13. 175 U. S. 211, 20 S. Ct. 96. 156 U. S. 1, 15 S. Ct. 249.
362
Cll. 12 INDUSTRIAL COMBINATIONS. §§ 323, 324
is of a mixed character, the seller accepting part cash and part
stock in payment it is not settled as to whether such combination
is in violation of the anti-trust act. If the seller parts with his
whole interest and agrees not to enter into the business within
the territory occupied by the combination, such agreement at
common law is not void.^^
§ 324. Pooling railroad business. — An agreement between
railroad companies, by the terms of which all their roads are to
be operated, as to through traffic, as if operated by one division
of such traffic, and, where this is not done, for a division of the
gross earnings thereof, the obvious purpose being to suppress
or limit competition, and to establish rates without regard to
their reasonableness, is contrary to public policy and void.^ A
railroad company is a (^^/osj-public corporation, and owes cer-
tain duties to the public, among wdiich are the duties to afford
reasonable facilities for the transportation of persons and prop-
erty, and to charge only reasonable rates for such service. Any
contract by which it disables itself from performing these
duties, or which makes it to its interest not to perform them
or removes all incentive to their performance, is contrary to
public policy and void; and, the obvious purpose of this con-
tract being to suppress or limit competition among the contract-
ing parties in respect to the traffic covered by the contract, and
to establish rates without regard to the question of their reason-
ableness, it is contrary to public policy, and void.^ So a contract
entered into between competing common carriers for the estab-
lishment and maintenance of freight rates, forming what is
known as a ''•pool," being a combination for no other purpose
16. Davis V. Booth (U. S. C. C. road Co. v. Closser, 126 Ind. 348,
A.), 37 Chicago L. News, 112, de- 26 N. E. 159, 9 L. R. A. 754 and
cided July 6, 1904. note, 22 Am. St. Rep. 593; West
1. Chicago, etc., K. R. v. Wabash, Virginia Trans. Co. v. Pipe Line
etc., R. R., 61 Fed. 993. Co., 22 W. Va. 600, 46 Am. Rep,
2. Gibbs V. Gas Co., 130 U. S. 527; Woodstock Iron Co. v. Exten-
396, 9 S. Ct. 553; Morris Run Coal sion Co., 129 U. «. 643, 9 S. Ct.
Co. V. Coal Co., 68 Pa, St. 173, 8 402; Arnot v. Coal Co., 68 X. Y.
Am. Rep. 159; Cleveland, etc.. Rail- 558, 23 Am. Rep. 1^0,
363
§ 324 CONTRACTS AGAINST PUBLIC POLICY. Ch. 12
than that of stifling competition, and providing means to ac-
complish that purpose, is illegal. Such a combination being
void,^ any one of the associated carriers has a right to provide
by special contract for a special rate to a shipper, and such con-
tract will be upheld when no element of partiality, oppression,
or improper favoritism entered into the contract.* But com-
peting and non-connecting railroads are not authorized by the
commerce act^ to make an agreement of maintenance of rates
and the curbing of competition. All combinations in restraint
of trade or commerce are prohibited by the commerce act,
whether they are in form of trusts or merger of corporations or
in any other form whatever.^ These cases show that the doc-
trine of unlimited competition applies to railroads; that they
cannot merge their lines and interests in order to keep prices
within certain prescribed limits; that the prohibition of rail-
road companies merging and thus secure unlimited competition
will produce the greatest good to the public and be no unreason-
able injury to the railroads.
In the Northern Securities Company Case,^ the company was
formed as an attempt to distinguish between an unincorporated
pool and a so-called holding company. It was argued that a cor-
3. Hunter v. Pfeifer, 108 Ind. 6. United States v. Freight Asso.,
197, 9 N. E'. 124; Atcheson v. Mai- 166 U. S. 290, 17 S. Ct. 540; United
Ion, 43 N. Y. 147, 3 Am. Rep. 678; States v. Nortiiern Securities Co.,
United States v. Freight Asso., 166 120 Fed. Rep. 729; Northern Se-
U. S. 290, 17 S. Ct. 540; Gibbs v. curities Co. v. United States, 36
Smith, 115 Mass. 592; Hannah v. Chi. L. News, 255, 191 U. S. 555,
Fife, 27 Mich. 172; People v. Sugar 24 S. Ct. 119, 48 L. Ed. 299.
Refining Co., 22 Abb. N. Cas. 317, 7. United States v. Northern Se-
121 N. Y. 582, 18 Am. St. Rep. 843; curities Co., 120 Fed. Rep. 729. See,
Cleveland, etc., R. R. Co. v. Closser, also, United States v. Joint Traffic
126 Ind. 348, 26 N. E. 159, 9 L. R. Asso., 171 U. S. 505, 19 S. Ct. 125;
A. 754 and note, 22 Am. St. Rep. Hopkins v. United States, 171 U. S.
593. 578, 19 S. Ct. 40; Anderson v.
4. Cleveland R. R. Co. v. Closser, United States, 171 U. S. 604, 19 S.
126 Ind. 348, 26 N. E. 159, 9 L. R. Ct. 50; Addyston Pipe and Steel
A. 754 and note, 22 Am. St. Rep. Co. v. United States, 175 U. S. 211,
593. 20 S. Ct. 96; Montague v. Lov?ry,
5. Act of July 2, 1890, 26 U. S. 193 U. S. 175.
S. at Large, 209.
3G4
Ch. 12 INDUSTRIAL COMBINATIONS. § 324
poration, as an individual, could own a majority of the stock of
two competing lines, and that such ownership of stock did not
constitute such a direct and necessary relation to commerce as
to subject it to Federal authority. The United States Circuit
Court held in this case that consolidation of parallel and com-
peting lines cannot be effected by the mere transfer of their
stock to a new corporation. Therefore the merger was illegal
and in conflict with interstate commerce. The question arises
whether their prohibition of such combinations is an unwise in-
terference with the right to contract; whether Congress should
so modify the Federal law as to permit the judiciary to deter-
mine whether a given restraint of trade is reasonable, and if so,
then to uphold the traffic.
The combinations or mergers hereafter to be made in the light
of the Northern Securities case will be combinations that do not
conflict with the law. The owners of the stock of one railroad
company may buy the stock of a competing line, and then there
can be no competition. The law cannot make two parallel lines
compete where the dividends go into the same treasury, any
more than it can make two merchants compete after the owner
of the one store has bought out the other. This principle is il-
lustrated in the Sugar Trust Combination which was held in-
valid by the courts of JSTew York. Then the different owners
of the constituent elements combined all the properties into one
corporation and the anti-trust law has no application.^
The decisions of the Ohio^ Court and the New York^" court
make all of the trusts, namely, combinations or partnerships of
corporations, illegal. This had the effect to dissolve the two
trusts. But the legislatures of these two States passed enabling
acts, permitting competing corporations to combine under one
management, that is, corporations may be formed to own and
8. See Park v. Druggists Asso., Ohio St. 137, 30 N. E. 279, 15 L. R.
175 N. Y. 1, 67 N. E. 136, 62 L. R. A. 145, 34 Am. St. Rep. 541.
A. 632, 96 Am. St. Rep. 578 and 10. People v. Sugar Refining Co.,
note. 121 N. Y. 582, 24 N. E. 834, 9 L. R.
9. State V. Standard Oil Co., 49 A. 33 and note, 18 Am. St. Rep.
843.
365
§ 324 CONTRACTS AGAINST PUBLIC POLICY. Ch. 12
hold the stock of other corporations without limit. In this way
the stockholders of any number of corporations are enabled to
turn their certificates of shares over to such a stockholding cor-
poration and receive in exchange the stock certificates of such
corporation, which in that way becomes the one owner and con-
troller of all such corporations. This method is, in effect, the
same as that by which several corporations were formerly put
in control of the same set of outside trustees in order to be un-
der one management, which was condemned as illegal. The
courts condemned in the States of Ohio and New York the
trusts, namely, all combinations or partnerships of competing
corporations, and then the legislature passed enabling acts for
such combinations to form and exist. The courts destroyed and
the legislature reconstructed and revived. It is by the acts of
the legislatures of Ohio and of New York that the Standard Oil
Company and the Sugar Eefining Company exist.
Another phase of this subject of merger was passed upon by
the United States Supreme Court in The Northern Securities
Co. V. United States,^^ where there was a combination or part-
nership of two interstate railroad companies, the Great North-
ern Railroad Company and the Northern Pacific Railroad Com-
pany. The companies had combined by a majority of the share-
holders, to turn over their stock to the Northern Securities Com-
pany, a business corporation formed in New Jersey for the sole
purpose of owning and controlling the stocks and securities of
other corporations, their share certificates being exchanged for
share certificates in such business corporation. The court held
this merger illegal under the anti-trust law^^ of Congress, be-
cause any combination which destroys or restricts free compe^-
tition among those engaged in interstate commerce is illegal.
And it does not change the rule as to such commerce whether the
combination is effected by the acts of the stockholders of the
11. 36 Chicago Leg. News, 255, Columbia L. Review, 168, 305, 315,
191 U. S. 555, 193 U. S. 197. 13 Yale L. Journal, 57, 17 Harv. L.
12. 26 U. S. St. at Large, 209. Review, 474, 533, 52 Am. L. Regis-
See "The Northern Securities Com- ter, 358.
pany."— 11 Yale L. Jour. 387, 3
366
Ch. 12 INDUSTKIAL COMBINATIONS. §§ 324, 325
several uniting corporations or whether it results by the stock-
holding corporation acquiring a majority of the stock of such
corporations ijTadually and as best it may, by stock purchasing
in open market, or otherwise.
But suppose the jSTorthern Securities Company had not been
formed by the stockholders of the two railroad companies, but
by others, and its directors had conceived and carried out the
scheme of getting control of the stock of the two companies by
purchase for cash, and thus changing them from competitors to
allies, would the court hold different? The question whether
the combination of several competing corporations under one
stocldiolding corporation, without any preconceived and worked-
out scheme by their shareholders, would be illegal remains to be
decided. This phase of the case opens up a vast field for care-
fully devised statutes and conservative court decisions.
§ 325. Rebates to shipper. — Common carriers may, within
the limits of fairness and impartiality, consult their own inter-
ests.^^ So a contract giving a special rate to a shipper, and pro-
viding for a drawback, is not in itself illegal and void. To
have that effect other elements must enter into the contract, but
when such elements are present in such form, as to make the
discrimination unjust or oppressive, the contract will be illegal.
Discrimination without partiality is inoffensive; partiality ex-
ists only in cases where advantages are equal, and one party is
unduly favored at the expense of another who stands upon an
equal footing. And whether a common carrier acts impartially
or not depends upon the circumstances of the particular case.
Mere discrimination will not invalidate a contract. If a com-
mon carrier makes a special contract to repay part of the sum
received from the shipper, he must perform his part of the con-
tract, unless he overthrows the presumption of fairness and
13. Louisville, etc. R. R. Co. v. 155; Easton v. Railroad Co., 32
Flanagan, 113 Ind. 488, 14 N. E. Fed. Rep. 897; Nicholson v. Rail-
370, 3 Am. St. Rep. 674; Chicago, road Co., 7 C. B., N. S. 755.
etc., R. R. Co. V. Iowa, 94 U. S.
367
§§ 325, 326 CONTKACTS AGAINST PUBLIC POLICY. Ch. 12
right bj countervailing facts. The shipper's right to recover
rests upon the contract providing for a rebate."
§ 326. Monopoly in interstate and international trade. —
Congress passed an act declaring all contracts void in the form
of trust or otherv^ise in restraint of trade or commerce among
the States, or with foreign nations.-^
The regulation of commerce applies to the subjects of com-
merce and not to matters of internal police. Contracts to buy,
sell, or exchange goods to be transported among the several
States, the transportation and its instrumentalities, and articles
bought, sold or exchanged for the purpose of such transit among
the States, or put in the way of transit, may be regulated, be-
cause they form part of interstate commerce. The fact that an
article is manufactured for export to another State does not
of itself make it an article of interstate commerce, and the in-
tent of the manufacturer does not determine the time when the
article or product passes from the control of the State and be-
longs to commerce.^ When a combination is made for private
gain in the manufacture of a commodity, but not through the
control of interstate or foreign commerce, the statute does not
apply. And it does not follow that an attempt to monopolize,
or the actual monopoly of, a manufacturer is an attempt,
14. Bayles v. Railroad Co., 13 (Tenn.), 609, 42 Am. Rep. 684;
Colo. 181, 22 P. 841; Erie and Hersh v. Railroad Co., 74 Pa. St.
Pacific Despatch Co. v. Cecil, 112 181; McDuffee v. Railroad Co., 52
111. 185; Root V. Railroad Co., 114 N. H. 430, 13 Am. Rep. 72; Garton
N. Y. 300, 21 N. E. 408, 4 L. R. A. v. Railway Co., 1 Best & S. 112;
33 and note, 11 Am. St. Rep. 643 Great Western Railway Co. v. Sut-
and note; Spoflford v. Railroad Co., ton, L. R. 4 H. L. 226; Boxendale
128 Mass. 326 ; Fitchburg R. R. Co. v. Railway Co., 5 C. B., N. S. 336 ;
V. Gage, 12 Gray (Mass.), 393; Ransome v. Railway Co., 1 C B.,
Christie v. Railroad Co., 94 Mo. 453, N. S. 437.
6 S. W. 656; Stewart v. Railroad 1. Act of July 2, 1890, ch. 647,
Co., 38 N. J. L. 505 ; Union Pacific 26 Stat. 209.
R. R. Co. V. United States, 117 U. 2. Coe v. Errol, 116 U. S. 517,
S. 355, 6 S. Ct. 772; Johnson v. 525, 6 S. Ct. 475; Kidd v. Pearson,
Railroad Co., 16 Fla. 623, 26 Am. 128 U. S. 20, 21, 22, 9 S. Ct. 6.
Rep. 731; Ragan v. Aiken, 9 Lea
368
Ch. 12 INDUSTRIAL COMBINATIONS. § 326
whether executory or consummated, to monopolize commerce,
even though, in order to dispose of the product, the instrument-
ality of commerce is necessarily invoked. Hence, when the
American Sugar Refining Company, a corporation existing un-
der the laws of the State of New Jersey, being in control of a
large majority of the manufactories of refined sugar in the
United States, acquired, through the purchase of stock in four
Philadelphia refineries, such disposition over those manufac-
tories throughout the United States as gave it a practical mo-
nopoly of the business, it created a monopoly in the manufac-
ture of a necessary of life, which could not be suppressed under
the statute,^ to protect trade and commerce against unlawful re-
straint and monopolies ; and the acquisition of the Philadelphia
refineries by a Xew Jersey corporation, and the business of
sugar refining in Pennsylvania, bear no direct relation to com-
merce among the States or with foreigTi nations.*
The monopoly and restraint denounced by the statute are a
monopoly in interstate and international trade or commerce,
and not a monopoly in the manufacture of a necessary of life ;
thus, this trust act does not apply to a company engaged in one
State in the refining of sugar, where such industry bears no
distinct relation to commerce between the States or with foreign
nations.^
But agreement as to rates by competing railroads for the
transportation of articles of commerce between th.e States do
come within and are condemned by this act. The act includes
every contract, combination in the form of trust, or otherwise,
or conspiracy in restraint of trade or commerce, among the sev-
eral States, or with foreigTi nations. Hence, an agreement by
railroads for the purpose of mutual protection by establishing
and maintaining reasonable rates, rules and regulations on all
freight traffic, both through and local, is void, as it puts a re-
3. Act of July 2, 1890, ch. 647, 156 U. S. 1, 15 S. Ct. 249, Harlan,
26 Stat. 209. J-, dissenting.
4. United States v. Knight Co., 5. United States v. Knight Co.,
156 U. S. 1. 15 S. Ct. 249.
369
§ 326 CONTEACTS AGAINST PUBI>IC 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 rec<jver what he has parted with under
the contract; and the test in determining when it applies to a
plaintiff is whether his cause of action is founded on, or arises
out of, the illegal contract. If the action is of that character,
Rep. 571; Sykes v. Beaden, 11 Ch. 18 Ves. o7D; Reyiiell v. Spiye, 8
Div. 195; Mexican Inter. Banking Hare, 222.
Co. V. Lichtenstein, 10' Utah, 3;;8, 6. Norton v. Blinn, 39 Ohio St.
37 P. 574. 145; De Leon v. Frevino, 49 Tex.
4. Savings Bank v. Burnes, 104 88, 30 Am. Rep. 101 and note;
Cal. 473, 38 P. 102; Bell v. Camp- Rhea v. White, 7 Lea (Tenn.), 628;
bell, 123 Mo. 1, 25 S. W. 359, 45 Compare Northrup v. Phillips, 99
Am. St. Rep. 505. III. 449.
5. White V. Bank, 22 Pick. 7. Lea v. Cassan, 61 Ala. 312.
(Mass.) 186; Osborne v. Williams 8. Wright v. Crabbs, 78 Ind. 487.
375
§§ 331, 332 CONTRACTS AGAINST PUBLIC POLICY. Cb. 12
whether it appear from his own stating, or is shown by way of
defense, he must fail; otherwise, not.^ If the plaintiff cannot
open his case without showing that he has broken the law, the
court will not assist him.^
While the general rule is that a demand on an illegal trans^
action will be enforced, if the plaintiff can make out his case
without disclosing the illegality,^ yet that rule has not been in-
variably applied to contracts, where the illegal consideration is
a violation of statute or an immorality detrimental to the public.
In such cases, the courts may overlook the parties, and consider
the question one of public policy.* The maxim, nemo allegans
turpitudinem suam, audiendus est, no one alleging his own
turpitude is to be heard, is inflexible, as between the parties, but
may yield to considerations of public policy and the duty of
preventing the consummation of a fraudulent and illegal pur-
pose. ISTor is the rule universal in its application to cases where
the consideration is violative of a statute.^
§ 332, Legality at time of enforcement. — As has already
been stated, the court will not lend its aid to enforce the contract
if, at the time its aid is sought, the contract is contrary to public
policy. If, however, at the time when the aid of the court is
sought to enforce the terms of an existing contract, the public
interests do not demand that the court should refuse to aid in
enforcing the contract according to its terms, the court will not
be justified in refusing its aid simply because at some previous
time, such aid would have been refused if then demanded.^
1. Nester v. Brewing Co., 161 Pa. 4. Irvin v. Irvin, 169 Pa. St.
St. 473, 29 A. 102, 24 L. R. A. 247, 529, 32 A. 445, 29 L. R. A. 292.
41 Am. St. Rep. 894. 5. Irvin v. Irvin, 169 Pa. St.
2. Swan v. Scott, 11 Serg. & R. 529, 32 A. 445, 29 L. R. A. 292.
(Pa.) 164; Morris Run Coal Co. v. 6. Hartford Fire Ins. Co. v.
Coal Co., 68 Pa. St. 173, 8 Am. Rep. Railroad Co., 62 Fed. Rep. 904. See,
159; Holman v. Johnson, Cowp. also, Ewell v. Daggs, 108 U. S.
343. 143, 2 S. Ct. 40B.
3. Evans v. Dravo, 24 Pa. St.
62, 62 Am. Dee. 359 ; Swan v. Scott,
11 Serg. & R. (Pa.) 155.
376
Ch. 12 INDUSTRIAL COMBINATIONS. § 332
To sustain the objection to the enforcement of such a con-
tract, it must appear that the contract is adverse to the existing
public policy of the State ; for, unless that be true, the court is
not justified in refusing its aid for the enforcement of a con-
tract which is good between the parties thereto. The inquiry is,
what is the public policy of the State where the action lies, when
enforcement is sought V
7. Hartford Fire Ins. Co. v.
Railroad Co., 62 Fed. Rep. 904.
377
CHAPTER XIII.
Trades Unions.
ARTICLE I.
Geneeal. Statement.
Section 333. Organization of Workingmen.
334. Trades Unions are Lawful Combinations.
§ 333- Organization of workingmen. — The organization of
■workingmen is legal and, of course, not against public policy.
The general rule is that men in all vocations may unite to
achieve that which a single person cannot in his individual
capacity. So partnerships are formed and corporations created
to subserve the necessities of business and all industrial pursuits.
So trades unions is a present need that the laborer may sell his
labor for a reasonable compensation. Public policy and the inter-
est of society favor the utmost freedom in the citizen to pursue
his lawful trade or calling. But the right of men to leave their
employment, where no contract is broken, is as perfect and com-
plete as is the correlative right of all men to seek employment
wherever they can find it, without let or hindrance, whether
belonging to labor organizations or not. These are common
rights,, secured by the constitution.^
§ 334- Trades unions are lawful combinations. — The au-
thorities in America and England hold that trades unions, in
the ordinary acceptation of that term, are not unlawful combi-
1. See "Do Trades Unions Limit and Organized Labor." — 34 Chicago
Output?"— 17 Political Science Legal News, 327.
Quarterly, 369 ; " The Injunction
378
Ch. 13 TRAJ)E UNIONS. § 334
nations, so long as they do not resort to acts of violence, or en-
deavor to accomplish some end that is contrary to public policy.
It is then not illegal, per se, for a union to adopt and endeavor
to mainain a scale of wages, or to endeavor to limit and regulate
the employment of apprentices.^
The later English authorities concede that members of trades
unions binding themselves not to work except under certain
conditions, and to support one another in the event of being
thrown out of emplojTiient in carrying out the views of the
majority, do not bring themselves within the criminal law or
make contracts against public policy.^ And so, the later Ameri-
can cases, where not against statute, hold that trades unions, in
the ordinary acceptation of the term, are not of themselves un-
lawful combinations. So a number of persons may associate
themselves together, and agree that they will not work for or
deal with certain men, or classes of men, or work under a cer-
tain price, or without certain conditions.^
But if the purpose of an organization or combination of
workingmen be to hamper or to restrict the right to contract,
and through contracts or arrangements with employers to coerce
other workingmen to become members of such union and to come
under its rules and conditions, under a penalty of the loss of
their position and of deprivation of employment, the purpose of
such organization is unlawful, because it is in conflict with that
principle of public policy which prohibits monopolies and ex-
clusive privileges, for it tends to deprive the public of the ser-
vices of men in useful employments and occupations.*
1. Longshore Printing Co. v. Am. St. Rep. 496. See, also, State
Howell, 26 Oreg. 527, 38 P. 547, 28 v. Glidden, 55 Conn. 46, 8 A. 890, 3
L. R. A. 464 and note, 46 Am. St. Am. St. Rep. 23; State v. Stewart,
Rep. 640. 59 Vt. 273, 9 A. 559, 59 Am. St.
2. Hormby v. Clark, L. R. 2 Q. Rep. 710 and note; State v. Dyer,
B. 151; Farrar v. Close, L. R. 4 67 Vt. 690, 32 A. 119; Murdock v.
Q. B. 602. Walker, 152 Pa. St. 595, 25 A. 492,
3. Carew v. Rutherford, 106 34 Am. St. Rep. 678; Barr v.
Mass. 14, 8 Am. Rep. 287. Trades Coimcil, 53 N. J. Eq. 101, 30
4. Curran V. Galen, 152 N. Y. 33, A. 881; Sherry v. Perkins, 147
39, 46 N. E. 297. 37 L. R. A. 802, 57 Mass. 212, 17 N. E. 307, 9 Am. St.
379
§ 334 CONTRACTS AGAINST PUBLIC POLICY. Ch.. 13
In Canada a trade union is "sncli combination, whetlier tem-
porary or permanent, for regulating the relations between work-
men and masters, or between workmen and workmen, or be^
tween masters and masters, or for imposing restrictive condi-
tions on tlie conduct of any trade or business, as would, if this
act had not passed, have been deemed to have been an unlawful
combination by reason of some one or more of its purposes being
in restraint of trade."
In England, prior to the Trade Union Act of 1871, strikes
were illegal. But since the Trade Union Act of 1875 ^ strikes
are legal. ^
iJ^otwithstanding the legality of trade unions, they have no
right to inflict injury on others of the community with im-
punity. And if the organization has no legal entity, it is not
without the control of the law; all of the members must be
reached under the law. Thus, where A brings an action against
the ofiicers of a trade union, alleging that the defendants and
the members of the union had illegally combined together to
injure him, and had prevented him from obtaining employ-
ment as a stonecutter, a good cause of action is shown.'
This is the law of England,^ and in the United States.^ So,
there can be no encouragement given to trade unions to evade in-
corporation and thereby become a legal entity, for such organ-
ized body, though having no legal existence as a body, must
come under the law, and all of its members reached by legal
process.
Rep. 689; Vegelahn v. Guntner, 167 Lumley v. Gye, 2 E. & B. 216; Tern-
Mass. 92, 44 N. E. 1077, 35 L. R. A. perton v. Russell, 1 Q. B. 715;
722, 37 Am. St. Rep. 443. Lyons v. Wilkins (1896), 1 Ch.
5. 38 and 39 Vict. c. 86. 811.
6. Temperton v. Russell, 1 Q. B. 8. Taff Vale Railroad Co. v. The
Div. 733; Lyons V. Wilkins (1896), Amalgamated Society of Railway
1 Ch. 828; Quinn v. Leatham Servants, 70 L. J., K. B. 905.
(1891), A. C. 495. 9. Beattie v. Callanan, 81 N. Y.
7. Perrault v. Gauthier (Can- S. 413, 82 App. Div. 7.
ada), 28 S. C. R. 211. See, also,
380
Ch. 13 TRADE UNIONS. § 335
ARTICLE II.
Contractual Relations.
Section 335. Liability of Trades Unions.
336. Picketing.
337. Blacklisting.
338. The Coal Stnke Commission.
§ 335. Liability of trades unions. — The liability of trades
unions has been settled in England, and the rule will be and is
followed in the United States. The English decision holds
these principles: 1. The test for liability of damages is
whether the injury was the natural incident or outgrowth of
the existing relations of the party doing the injury to the con-
dition out of which tlie act arose. 2. A malicious intent to in-
jure is not required to make the party civilly liable. 3. The
liability rests upon the whole body of the organization which
by its authorized agents and leaders produced the damage.
4. The damage may be collected from the general fund of the
association. 5. The members of the organization are joint
tort feasors.^ This clearly shows the liability of those organ-
izations which cause a strike and interfere in the contractual
relations of other parties.
It is also illegal for trade unions to issue lists of unfair firms
with a view of preventing men from working for such firms or
preventing other people from trading with them. It is illegal
for trade unions to strike in order to compel men to join them.
It is also illegal for trade unions during a dispute to peacefully
persuade men not to enter the employ of a firm in conflict with
trade unions.^ Yet it is legal for employers to refrain from
1. Taft Vale Railroad Co. v. The 2. Lyons v. Wilkins (1896), 1
Amalgamated Society of Railway Ch. 828, 68 L. J. Ch. 146 ; (1899), 1
Servants, 70 L. J., K. B. 905, over- Ch. 255.
ruling S. C. (1901), A. C. 426, S. 3. Reid v. Friendly Soc. of Opera-
C. (1901), 1 K. B. 170, S. C. 70 L. tive Stonemasons, Tl L. J., K. B.
J. K. B. 219. 634; (1902), 2 K. B. 88.
381
§ 335 CONTRACTS AGAINST PUBLIC POLICY. Cb. 13
trading with firms in order to compel the latter to join their
combinations.'*
So tbe law is that if a trade union, or similar combination,
commits a wrong as set fortb by the English courts, the person
injured by such wTong can maintain an action against them as
he would against other joint tort feasors ; and so far as the form
of the action is concerned, it may be brought against either rep-
resentative defendants, who fairly represent the whole body,
or they may be sued by their collective name, that is, in the
name of the union.^
It is a violation of right to interfere with contractual relations
recognized by law if there be no sufficient justification for the
interference. If the trade union is justified in interfering
there arises no liability.^ So where a labor organization malic-
iously induced persons contracting with employers to violate
their contract, the union is civilly liable in damages to the in-
jured employer.'^ So if a third party interferes without suf-
ficient ground and cause a workman to be discharged the third
party is liable in damages. Thus, where an employe of a cor-
poration under a contract, terminable at the will of either
party at any time, was discharged by his employer at the instance
of a guaranty company so as to compel him to surrender and
release a cause of action which he claimed against his employer,
and for the satisfaction of which the guaranty company was
liable as an insurer, and the employe was thereby damaged,
the guaranty company, or the third party interfering, is liable
in damages to the employe.^
4. Mogul Steamship Co. v. Mc- C. 510, 50 W. R. 139; National Pro-
Grregor, 23 Q. B. Div. 598. tection Asso. v. Cummins, 170 N.
5. Giblan v. Laborers' Union, 18 Y. 315, 63 N. E. 369, 58 L. R. A.
L. Times Rep. p. 500 (1903), 2 K. 135, 88 Am. St. Rep. 648.
B. 600; Glamorgan Coal Co. v. 7. Beattie v. Callanan, 81 N. Y.
South Wales Miners' Federation S. 412, 82 App. Div. 7.
(1903), 1 K. B. 118. See, also. Cur- 8. London Guaranty and Accident
ran v. Galon, 152 N. Y. 33, 46 N. E. Co. v. Horn, 206 HI. 493, 69 N. E.
297, 37 L. R. A. 502, 57 Am. St. Rep. 526, 99 Am. St. Rep. 185; Perkins
496; Flood V. Allen (1898), A. C. 1. v. Pendleton, 90 Me. 166, 38 A. 96,
6. Quinn v. Leatham (1901), A. 60 Am. St. Rep. 252. See, also,
382
Ch. 13 TRADE UNIONS. § 335
In the United States, injunctions have been granted against
the acts of labor organizations in many cases.' In some States
this right of action is governed by statute. Thus, in New York
under the code, when an incorporated organization is composed
of seven or more persons, action can be brought again it
in the name of the president or treasurer. An action was
brought for conspiracy resulting in plaintiff's discharge from
employment. The defendant set up an agreement between the
labor association and the employers' association that no em-
ploye should work more than four weeks without becoming a
members of the union. This defense was held bad on the ground
that such an agreement was illegal. This case clearly sustains
the liability of the unincorporated company to an action if it
has committed wrong.^" But if no wrongful act of the organ-
ization has been committed, then no action will lie.^^
This doctrine is upheld when, it seems, no statute controls,
and the organization is not incorporated.^^ The question to be
settled is, is the act wrongful ? if so, a right of action exists
though the organization of laborers is unincorporated.^^ A trade
union can be sued under its name, though it is neither a corpora-
tion nor an individual ; this is the undoubted rule in England
and in the United States, when such organization has committed
a wrongful act.
Doremus v. Hennessey, 176 111. 608, 74 Am. St. Rep. 421 ; Longshore
52 N. E. 924, 54 N. E. 524, 68 Am. Printing and Pub. Co. v. Howell
St. Rep. 203; Compare Allen v. 26 Oreg. 527, 38 P. 547, 28 L. R. A
Flood (1898), A. C. 1; Mogul 464, 46 Am. St. Rep. 640.
Steamship Co. v. McGregor, 21 Q. 10. Cur ran v. Galen, 152 N". Y.
B. D. 544; Huttley v. Simmons, 67 33, 46 N. E. 297, 37 L. R. A. 802
Q. B. D. 213; Quinn v. Leatham 57 Am. St. Rep. 496.
(1901), A. C. 495. See The Author- 11. Wunchv.Shankhind, 59 App
ity of Allen v. Flood, 1 Mich. Law Div. 482, 69 N. Y. S. 349.
Review, 28. 12. Parker v. Bricklayers' Un
9. Arthur v. Oakes,'4 Inter. Com. ion, 21 Ohio L. Jour. 223, 10 Ohio
Rep. 744, 11 C. C. A. 299, 24 U. S. Dec. Reprint, 458; Moores v. Brick
App. 239, 63 Fed. liep. 310, 25 L. layers' Union, 23 Ohio L. Jour. 48
R. A. 414; Beck v. Railway Team- 10 Ohio Dec. Reprint, 665.
sters' Protect. Union, 118 Mich. 13. Barr v. Essex Trades Coun-
497. 77 N. W. 13, 42 L. R. A. 407, cil, 53 N. J. Eq. 101, 30 A. 881.
383
§ 335 CONTRACTS AGAINST PUBLIC POLICY. Ch. 13
A combiiiation among traders to offer such facilities to cus-
tomers as will attract the whole trade to themselves and ruin
their rivals is not actionable, because every trader is entitled
not only to seek his own advantage by trading upon terms which
will injure his rivals, but he may also combine with others for
the same purpose. The right of his rivals to trade is not an abso-
lute, but a qualified right — a right conditioned by the like right
to all others, and a right, therefore, to trade subject to competi-
tion." So, also, every workman is entitled to dispose of his labor
on his own terms, but that right is conditioned by the right of
every other workman to do the same. Each laborer is at liberty to
decide for himself whether he will or will not work along with
another individual in the same employment ; and if all the work-
men but one determine that they will not continue their labor
in company with that one, they may inform their employer of
their decision without incurring liability.^^ In Allen v. Flood,^'
Allen, a walking delegate, informed his employers that unless
they discharged certain persons his associates would quit work.
It was held that there had been, in fact, no' threat made by the
delegate, but simply a statement of what the men had resolved
to do; the delegate neither uttered nor carried into effect any
threat at all ; he simply warned the employers of the discharged
men, of what his men themselves, without his persuasion or in-
fluence, had determined to do, and hence the delegate had incur-
red no liability.
In Quinn v. Leathem,^^ it was held that the combination of
workmen is perfectly legitimate so long as it does not take the
form of an attack on the right of the individual workman. Each
party, the individual workman on the one side, and the combina-
tion of workmen on the other, are entitled to the enjoyment of
their rights to dispose of their labor as they please, subject only
to the exercise of this right by the opposite party. But when the
combination interferes with the individual workman by threats
14. Mogul Steamship Co. v. Mc- (1903), 2 K. B. 600, 18 L. Times
Gregor (1892), A. C. 2^, 23 Q. B. Rep. 500.
D. Q. 25. 16. (1898), A. C. 1.
15. Giblan v. Laborers' Union, 17. (1901), A. C. 495.
384
Ch. 13 TEADE UNIONS. §§ 335, 336
■uttered by the employer, then tliis right of the individual work-
man is invaded, and if damages follow he has a right of action.
In Giblan v. Laborers' Union,^* two union officials bad com-
bined to prevent a workman obtaining employment by threaten-
ing to call out the other workmen if he was engaged. This work-
man, plaintiff in the case, had been a local treasurer of the
union, and was indebted in respect to union funds, and the ob-
ject was to make him pay this debt. The court held that the
aggressive use of power of the trade union officials was a cause
of action for interference with the plaintiff's right to dispose of
his own labor as he pleased. The action lay for the unjustifi-
able interference with a man's liberty of action, and the defend-
ants were held liable. So the indivdidual workman's rights can
be protected.
§ 336. Picketing. — In case of a strike, it is the practice of
the union to send out pickets to influence non-union laborers
from entering the employment of the business thus under con-
sideration. It is illegal to picket by labor unions, to intimidate
workmen who have taken the places of strikers.^ A laborer has
the undoubted right to leave his employment on a strike, but he
must flo so in a peaceful manner, and not in any manner injure
the business of his employer by intimidating others so that they
dare not take his place.^ Every act causing an obstruction to
another, which is done not in the exercise of the actor's own
18. (1903), 2 K. B. 600, 18 L. putes."— 40 Canada L. Jour. 410;
Times Rep. 500. See, " Do Trade " Liability of Trade Unions and
Unions Limit Output?"— 17 Politi- Their Members."— 28 Nat. Cor. Re-
cal Science Quarterly, 369; "Labor porter, 620, 621; "Ihe Relation of
Competition and tJie Law." — 19 Labor and Capital, Organization of
Law Quarterly Rev. 37 ; " Some Employers and Employees, 29 Nat.
English Cases on Trade and Labor Cor. Rep. 46, 47, 48.
Disputes," — 42 Am. Law Register, 1. Union Pac. R. R. Co. v. Ruef,
N. S. 125; "Government by Injunc- 120 Fed. Rep. 102; Vegelahn v.
tion." — 11 Am. Lawyer, 5; " Inci- Guntner, 167 Mass. 92, 44 N. E.
dental Relief in Federal Injunction 1077, 25 L. R. A. 722, 57 Am. St
Cases,"— 23 Law Register, 150; Rep. 443.
" Trade and Labor Unions, Just 2. Wabash R. R. Co. v. Hanna-
Cause and Excuse in Labor Dis- ban, 121 Fed. Rep. 563.
385
§ 336 CONTKACTS AGAINST PUBLIC POLICY. Ch. 13
right but for the purpose of obstruction, would, if damages
should be caused thereby to the party obstructed, be a violation
of the prohibition of the law against interference with the full-
est right of every person to dispose of his labor or capital accord-
ing to his own will,^ and is therefore illegal. ISTor does it mat-
ter whether the wrongdoer effects his object by persuasion or by
false representation. The courts look through the instrumen-
tality or means used to the wrong perpetrated with the malic-
ious intent, and base the right of action upon that.^ An agree-
ment to employ none but union laborers is against public pol-
icy and in violation of common right, and tends to create a mon-
opoly and cannot be enforced.^
Picketing has been practiced in cases of strikes, whereby
members of the union are stationed around the place of bus-
iness to keep non-union men from engaging to work for the
proprietors who have been placed on the unfair list. Whenever
this picketing, the number of pickets being great or small, is
sufficient in itself to intimidate men from entering the employ-
ment of the proprietors thus listed, then such picketing is un-
lawful, and intereferes with the contractual relations of em-
ployer and employe. Peaceable persuasion, without intimida-
tion, is legal.® Agreements whereby employers are required
to unionize their business against their will, are against public
policy and against the spirit of our institutions,^ and the em-
ployers will be protected.
3. Plant V. Wood, 170 Mass. 492, Mass. 92, 44 N. E. 1077, 25 L. R.
57 N. E. 1011, 51 L. R. A. 339, 79 A. 722, 57 Am. St. Rep. 443; Union
Am. St. Rep. 330. Pac. R. R. Co. v. Ruef, 120 Fed.
4. iiarr v. Trades Council, 53 Rep. 102; Beaton v. Tarrant, 102
N. J. Eq. 101, 30 A. 881. See, also. 111. App. 124; American Steel Co.
Beck V. Teamsters' Protective Un- v. Wire Drawers' Union, 90 Fed.
ion, 118 Mich. 49, 77 N. W. 13, 42 Rep. 598.
L. R. A. 407, 74 Am. St. Rep. 421; 7. Curran v. Galen, 152 N. Y.
Shoe Co. V. Saxey, r31 Mo. 213, 32 33, 46 N. E. 297, 57 Am. St. Rep.
S. W. 1106, 52 Am. St. Rep. 622; 496; Lucke v. Clothing Cutters, 77
Flaccus V. Smith, 199 Pa. St. 128, Md. 396, 26 A. 505, 19 L. R. A.
48 A. 894, 85 Am. St. Rep. 779. 408, 39 Am. St. Rep. 421; Mills v.
5. Curran v. Galen, 152 N. Y. 33, U. S. Printing Co., 32 N. Y. L. Jour.
■46 N E. 297, 57 Am. SI. Rep. 496. 1037, 100 App. Div. .
6. Vegelahn v. Guntner, 167
386
Ch. 13 TRADE UNIONS. § 336
Strikers have the right to argue or discuss tlie subject of em-
ployment with the new employes, and persuade, if they can ; but
the new employes must be allowed the right to come and go with-
out fear or molestation, and without being compelled to discuss
this or any other question, and without being guarded or pick-
eted. Persistent and continuous persuasion by members is of
itself intimidation. Picketing which in fact annoys or intimi-
dates employes is clearly an intercference with their rights.
Any unlawful nuisance may be created by a congregation of per-
sons sufficient to obstruct a highway, although they are entirely
peaceable. When a large number of persons assemble with the
express purpose of harrassing or annoying others, to deter them
from engaging in lawful employment, their conduct is unlaw-
ful. And especially where picketing is accompanied by more
aggressive intimidation, not only by language villainous, vulgar
and obscene, mixed with execrable oaths and threats of murder,
and by outrageous and brutal assaults, these acts are unlawful.*
And a patrol of strikers in front of a factory is unlawful, be-
cause it is a means of intimidation w'hen used in combination
with social pressure, threats of personal injury and the like.^
Picketing in and of itself, when properly conducted, is not un-
lawful, but it is so when accompanied by violence or any manner
of coercion or intimidation. But it is very doubtful whether
picketing has ever been, or will be, used by strikers except for the
purpose of intimidation. And if a strike is ordered on buildings
under construction, where work cannot be stopped without in-
jury to the owner, such strike is unlawful, though the action was
to force out non-union men or compel them to join the union. ^^
What is unlawful picketing is a question not settled. Mere
picketing, if it is peaceable and without threats or intimidation,
cannot really be considered as unlawful." But the use of
threats, violence, or intimidating with the intent of preventing
8. Union Pac. R. R. Co. v. Ruef, 10. Eidnian v. :MitchelI, 207 Pa.
12u Fed. Rep. 102. 79, 5G A. 327, 63 L. R. A. 534.
9. Vegelahn v. Guntner, 167 11. Foster v. Protective Asso.,
Mass. 92, 44 N. E. 1077, 51 Am. St. 78 N. Y. S. 860, 39 Misc. K. 48.
Rep. 443, 35 L. R. A. 722.
387
§ 336 CONTRACTS AGAINST PUBLIC POLICY. Ch. 13
laborers from entering the employment of employers or prevent-
ing- customers entering the stores of merchants, is unlawful. It
is held that picketing itself is a threat which produces in the
minds of non-union men a feeling of fear.^^ But this doctrine
is not generally upheld, and when there is no intimidation the
picketing is not unlawful. ^^ But there can be picketing which
is unlawful, though there is no physical violence. So calling
non-union men by approbrious names is unlawful interference.^*
So to hold up non-union laborers to the ridicule and contempt of
bystanders is wrong. ^^ So holding a banner in front of a factory
requesting workmen to keep away is a means of threat and in-
timidation to prevent laborers from entering the employment
of the factory.^®
The fact that the imion strikers assemble in great crowds
seems to be a threat and to convert persuasion into intimida-
tion."
The act committed must be unlawful and productive of in-
jury of the party complaining. If the act is lawful and may be
lawfully performed, it is an injury without a remedy.^^ But
a combination to do injurious acts expressly directed to another,
by way of intimidation or constraint, either of himself or of
persons employed or seeking employment by him, is a wrong-
ful interference with the contractual rights of others. ^^
12. Otis Steel Co. v. Local Union, 17. American Steel Wire Co. v.
110 Fed. Rep. 698. Wire Drawers, 90 Fed. Eep. 608;
13. Krebs v. Rosenstein, 67 N. United States v. Kane, 23 Fed. Rep.
Y. S. 630, 56 App. Div. 619; Stand- 750; People v. Wiljig, 4 N. Y. Cr.
ard Tube v. Inter. Union, 9 Ohio 403; Makall v. Ratchford, 82 Fed.
Dec. 692. Rep. 41.
14. O'Neil V. Behanna, 182 Pa. 18. Macauley v. Turney, 19 R.
St. 243, 37 A. 843, 61 Am. St. Rep. I. 255, 33 A. 1, 61 Am. St. Rep.
702 and note; Murdock v. Walker, 770, 37 L. R. A. 455.
152 Pa. St. 595, 25 A. 492, 34 Am. 19. Vegelahn v. Guntner, 167
St. Rep. 678. Mass. 92, 44 N. E. 1077, 35 L. R.
15. Wick China Co. v. Brown, A. 722, 57 Am. St. Rep. 443;
164 Pa. St. 449, 30 A. 261. O'Neil v. Behanna, 182 Pa. St. 236,
16. Sherry v. Perkins, 147 Mass. 37 A. 843, 38 L. R. A. 382, 61 Am.
212, 17 N. E. 307, 9 Am. St. Rep. St. Rep. 702.
689.
388
Ch. 13 TRADE UNIONS. §§ 336, 337
I
In general, threats of physical injury, or injury to the prop-
erty of an employer, especially if accompanied by assaults or
overt acts, which will intimidate a man of ordinary courage so
as to make him abandon his employer, — are an unlawful inter-
ference with personal rights.^"
In the United States mere threats not producing intimidation
are not lawful.^^ But in England, by statute, such threats
are unlawful."^ A statute may provide that a peaceable com-
bination may organize for or against employment ; and in such
case where there is no intimidation, the acts of the employes are
not unlawful. ^^ But such statute does not make it lawful for
such combination to injure a man in his business by a concerted
action on the part of an immense number of persons to cease
dealing with him, by threats to withdraw their custom from
him, for the purpose of obliging him to accede to their de-
mands, or, in other words, to boycott him.^
§ 337- Blacklisting. — An employer may keep in a book the
names of employes discharged because they were members of a
labor union, and may invite inspection of that book by other
employers, even though the latter therefore refuses to hire the
discharged employes. The employer has a right to keep a black-
list which may be referred to by those interested.^
However, a statute which prohibits blacklisting is constitu-
20. Beck V. Protective Union, Co. v. Glass Bottle, etc. Asso., 59 N.
118 Mich. 497, 77 N. W. 13, 42 L. J. Eq. 49, 46 A. 208.
R. A. 407, 74 Am. St. Rep. 427; 22. Lyons v. Wilkins (1896), 1
Manufacturers' Outlet Co. v. Long- Ch. 811, 74 L. T. 3o8, 60 J. P. 325.
ley, 20 R. I. 86, 37 A. 535; Curran 23. Mayer v. Stone Cutters, 47
V. Galen, 152 N. Y. 33, 46 N. E. N. J. Eq. 519, 20 A. 492.
297, 37 L. R. A. 8^92, 57 Am. St. 24. Barr v. Trades Council, 53
Rep. 496; Cumberland Glass Manuf. N. J. Eq. 101, 30 A. 881. See, " In-
Co. V. Glass Bottle, etc. Asso., 59 junction and Organized Labor.'' —
N. J. Eq. 49, 46 A. 2^06 ; In re Debs, 34 Chi. L. News, 327 ; " Picketing a
158 U. S. 564, 15 S. Ct. 900, 64 Store— Injunction."— 52 Am. Law-
Fed. Rep. 724; Allen v. Flood Register, 531.
(1898), A. C. 1. 1. Boyer v. Western Union Tel.
21. Cumberland Glass Manuf. Co., 124 Fed. Rep. 246; Young v.
Railroad Co. (Ind.), 69 N. E. 300.
389
§ 337 CONTRACTS AGAINST PUBLIC POLICY. Cll. 13
tional, whore there is express or implied malice.^ This statute
should only apply to employers who act maliciously and want-
only, on their own initiative, and endeavor to prevent their em-
ployes from obtaining employment elsewhere ; this is the only
rational interpretation of such statute, because under the con-
stitution. State and Federal, an employer, without malice, has
a right to give information with respect to a former employe.
It may be laid down as a general principle, that it is a violation
of legal right to interfere with contractual relations recognized
by law if there be no sufficient cause justifying the interference.^
So an employer has a right, in the absence of contractual re-
lations, to discharge any employe with or without notice at any
time, even for belonging to, or for joining a labor organization,
and the same right to leave the service of an employer is ac-
corded the employe; and the employer has the right to main-
tain, without malice, a blacklist and give it out to others.*
Because it is against public policy and common right, to com-
pel another against his will, or to compel one to retain in his
employment a man he does not want.
But it is held that a statute is constitutional which prohibits
employers from combining for the purpose of interfering with
or preventing any person, either by threats or blacklisting, from
procuring employment.^
In blacklisting a correct account must be given. And so if
a railroad company has a custom of keeping a record of the
cause of the discharge of employes, and to decline to employ
those discharged for certain causes, it is a part of the contract
of employment that no false entry as to the cause of such dis-
2. State V. Justus, 85 Minn. 279, A. 115, 83 Am. St. Rep. 289; Per-
88 N. W. 759, 5B L. R. A. 757, 89 kins v. Pendleton, 90 Me. 166, 38
Am. St. Rep. 550. A. 96, 60 Am. St. Rep. 252.
3. London Guar, and Accident 4. Boyer v. Western Union Tel.
Co. V. Horn, 206 III. 493, 69 N. E. Co., 124 Fed. Rep. 246.
626, 99 Am. St. Rep. 185; Hollen- 5. State v. Justus, 85 Minn. 279,
back V. Restine, 114 Iowa, 358, 86 88 N, W. 759, 56 L. R. A. 757, 8»
N. W. 377; Moran v. Dunphy, 177 Am. St. Rep. 550.
Mass. 485, 59 N. E. 125, 52 L. R.
390
Ch. 13
TKADE UNIONS.
§§ 337,338
charge shall be made, or communicated, if made, to any other
railroad company.^
§ 338. The coal strike commission. — In 1903 an anthracite
coal strike occurred in Pennsylvania and the President ap-
pointed a commission to settle it. The commission justified the
use of the malitia to keep the peace, condemned boycotts and
violence, and forbid any effort of the strikers to restrict the
output of mines, except by agreement with the operators, and
also forbid discrimination against any workman because of
membership or non-membership in any labor organization, and
any interference by union men, and any interference by any
labor organization. This decision is of the highest value, be-
cause it comes from eminent men from the most varied posi-
tions and vocations in life. This commission gave no counten-
ance to t^Tanny, whether by capitalists or by unions, and
tolerated no lawlessness.^
6. Hundley v. Louisville, etc. R.
R. Co. (Ky. ) , 63 L. E. A. 289.
1. See "A Word More on the
Coal Mines." — 14 Green Bag, 570;
" Legislation to Control the Anthra-
cite Coal Corporations." — 64 Al-
bany Law Journal, 418; "The Coal
Mines and the Law." — 14 Green
Bag, 514; "Cause of the Coal
War." — 42 Legal Advisor, 176; "A
Problem in Mining Law: Walrath
V. Champion Mining Company." —
16 Harvard Law Review, 94.
391
Pi^RT T\r.
OPEEATIOE" OF CONTRACTS.
(393)
Pi^HT IV.
CHAPTER XIV.
Contractual Relations.
ARTICLE I.
CoNTRiVCTUAL RELATIONS.
Section 339. Persons AflFectcd.
340. Meeting of Minds — Right of Privacy.
341. Master and Servant — Interference of Third Parties — Boycott.
342. Duty not to Interfere In Any Contract.
343. Restricting the Rule to Servants.
344. When the Period of Employment is not Certain.
345. Doing an Act which is Legal in Itself.
346. Fraudulent Representations.
347. To Sustain an Action the Discharge Must Take Place.
348. As to Priorities of the Parties.
349. Water Companies — Rights of Third Persons.
350. Assignment of City Contract.
351. No Priority of Parties or of Consideration.
§ 339- Persons affected. — Generally onlv parties to a corn-
tract are affected by it. Hence, a contract cannot impose liabil-
ities on persons not parties to it, nor confer rights on them. In
case of agency the agent is obeying his principal's orders and is
therefore acting for his principal, and so this is not, in fact,
an exception to the general rule. And so the exception that
rights and liabilities of a contract may pass by assignment by the
parties or by operation of law to others, is only apparent. The
assignees are substituted to the rights of the original parties.
There can be no privity of contract only to those who are made
395
§ 339 OPEEATION OF CONTEACTS. Cll. 14
parties.^ However, the trend of decisions now is that a party
for whom a contract is made may sue on it. This is upon the
ground that the party, for whose benefit the contract was made,
when he accepted the act of the original parties, is brought into
privity with the promisor, and can therefore enforce it against
him.^ But the law seems to be otherwise in England.^ But
where no contractual relations exist, a party has no right to
appropriate or take the property of another for his own benefit.
Thus, a party has no right to copy from the electrical instru-
ments and printing machines of another, known as tickers, for
the purpose of publishing through his own tickers, or otherwise
disposing of, or using any of the news or information which may
thereafter be collected. Such information is the private prop-
erty of the owner of the ticker and can only be used as he sees
fit.* But if property is dedicated to the public, the owner's
rights are divested. Thus, when an architect publishes his
plans of a building, he loses his exclusive right to them.^ So
a publisher cannot control the price of his publication by a res-
ervation printed on the page following the title-page that if the
book is sold for a less price than specified, he will consider it
an infringement of the copyright. Because when a publisher
transfers his title to a copy of his book, either to a reader, sub-
scriber, or retailer, he has exercised his sole liberty of vending
that particular copy, and is the only right protected by the copy-
right law.® If a publisher wishes to control the sale of his
work in the possession of the retailer, it must be by an agree-
1. Boston Ice Co. v. Potter, 123 rence v. Fox, 20 K. Y. 268 ; Pingrey
Mass. 28, 25 Am, Rep. 9; Sehmoling on Mortg. 326, 1028, 1031.
V. Thomlinson, 6 Taunt. 147 ; Fen- 3. Tweddle v. Atkinson, 1 B. & S.
der V. Kelly, 58 111. App. 283; Law- 393; Compare In re Rothehan, etc.
rence v. United States, 71 Fed. Rep. Co., 25 Ch. D. 111.
228; Gaitskill v. Chenaelt, 32 S. 4. National News Tel. Co. v.
W. 757, 17 Ky. L. J. 828; Martin Western Union Tel. Co., 119 Fed.
V. Peet, 92 Hun, 133, 36 N. Y. S. Rep. 294, 56 C. C. A. 198, 60 L. R.
554; Freeman v. Railroad Co., 173 A. 805.
Pa. St. 274, 33 A. 1034. 5. WrigKt v. Eisle, 83 N. Y. S.
2. Tweeddale v. Tweeddale, 116 887, 86 App. Div. 306.
Wis. 517, 93 N, W. 440, 61 L. R. A. 6. Edison Phonograph Co. v.
509, 96 Am. St. Rep. 1003; Law- Pike, 116 Fed. Rep. 863; Victor
396
Ch. 14 CONTEACTUAT. RELATIONS. §§ 339, 340
ment. A reservation as to price cannot control, or be, an in-
fringement.
§ 340. Meeting of minds — Right of privacy. — In order to
form a contract there mnst be a meeting of minds. So a party
has a right to select the party with whom he will contract, and
cannot therefore be compelled to contract with a party withont
his consent.^
Where there is no privity of contract, the possession and use
of property will not support an implied contract ;^ and no pre-
sumption of assent can be implied from the reception and use
of property, where the recipient has no knowledge that it was
furnished by one party, when he had a right to suppose that
it was furnished by another under an express contract.*
But if the recipient of the property has received notice that
the contract to furnish property to him has been assigned to an-
other, and he continues to receive it, then an implied contract
is created and a contract with the assignee exists.*
A voluntary payment made by one of a debt by another with-
out his request creates no assumpsit on the part of the latter to
the former,^ because a party cannot make another his debtor
without the latter's consent.® Under this head the question of
the right of privacy comes. It has been decided that a party had
no right to privacy in his photogi'aph ; that a photograph may
be used as a trade-mark, and the subject whose photograph is
used has no remedy.^ Such a doctrine is unjust and unwise,
Talking Mach. Co. v. The Fair, 118 4. Mudge v. Oliver, 1 Allen
Fed. Rep. 609; Bobbs-Menill Co. v. (Mass.). 74; Orcuft v. Nelson, 1
Snellenburg, 131 Fed. Rep. 530. Gray (Mass.), 536; Mitchell v. La-
See, also, Harrison v. Maynard, 61 page. Holt. N. P. 253.
Fed. Rep. 689, 10 C. C. A. 17, 26 5. Hearn v. Cullin, 54 Md. 533.
U. S. App. 99; Publishing Co. v. 6. Durnford v. Messiter, 5 Maule
Smyth, 27 Fed. Rep. 914. & Sel. 446.
1. Sehmoling v. Tbomlinson, 6 7. Roberson v. Box Co.. 171 N. Y.
Taunt. 147. 538, 64 X. E. 442, 59 L. R. A. 478;
2. Hills V. Snell, 104 Mass. 173, Marlin Fire Arms Co. v. Shields,
177. 171 N. Y. 384, 64 N. E. 163, 59 L.
3. Boston lee Co. v. Potter, 123 R. A. 310; Changed by statute of
Mass. 28. 1903, Ch. 132.
397
§ 340 OPERATION OF CONTRACTS. Cll. 14
and against the common sense of people in general, and has
been repudiated in England, and the right of privacy upheld.
The case is this : A father employed a photographer to photo-
graph his two daughters and ordered and paid for a certain,
number of photographs. The photographer's successors in bus-
iness, of their own accord, made enlargements of the photo-
graphs and exhibited them in their studio for the purpose of
their trade. To this the father objected, and, on the photo-
graphers refusing to desist from exhibiting the photographs,
brought an action of injunction, and the court held that a pho-
tographer who had been employed by a customer to take a por-
trait has no right to print copies of it for sale or exhibition
without the customer's consent. The nature of a photographer's
right in the negatives of photographs taken by him in the ordi-
nary course of business was discussed, and it was held the pho-
tographer is entitled to the custody of the negative in order to
secure to himself the privilege of supplying possible future
orders, while the customer has an interest in it to the extent
of entitling him to prevent the photographer using it except on
his order and with his consent.^ This decision is in accord with
reason and common sense. In fact, it is a doubtful question
whether the State even has the right to take the photograph and
the Bertillon measurement and publish them, of a suspected
criminal.'^
It should be held that an implied contract exists between the
photographer and the sitter that the negative shall not be used
for any other purpose than to furnish photographs at the order
of the sitter, and, therefore, the photographer has no right to
sell the negative or to print photographs, only as ordered by the
sitter.^"
It is said that the right of privacy during life dies with the
person, and therefore no person can maintain an action to pre-
8. McCosh V. Crow, English 10. Pollard v. PTiotograph Co.,
Court of Sessions, March 17, 1903. 40 Ch. D. 345; Levyeau v. Cle-
9. Owen v. Partridge, 82 N. Y. ments, 175 Mass. 376, 56 N. E. 735,
S. 248. 50 L. R. A. 391 and note; Boucas v.
Cooke (1903), 2 K. B. 227.
398
Ch. 14 CONTRACTUAL RELATIONS. §§ 340, 341
vent the exhibition of a picture of a deceased relative, unless the
injury caused by that display is to himself, and the action can-
not be brought simply because the exhibition will be disagreeable
to the person whose portrait is to be exhibited had he been liv-
ing.^^ And where a party in his lifetime has permitted his
photograph to be printed in newspapers and various other pub-
lications, and he is a public man, there is no reason for prevent-
ing his photograph from publication after his death.^^ Un-
doubtedly a distinction should exist between private and public
persons. A private individual should be protected in his right
of privacy.
The photograph and measurement of a prisoner taken by
officers in the line of their duty, cannot be surrendered to the
prisoner after he has been set at liberty by reversal of the con-
viction. The photograph and measurements are a part of the
other records which go to make up the inevitable track of the
released prisoner, and to undertake to blot out this record would
be a public inconvenience, if not an impossibility.^^
§ 341. Master and servant — Interference of third parties
— Boycotts. — While a contract does not impose a duty upon
parties not in privity, yet it does impose a duty not to interfere
with its operation. So an action of a servant can be main-
tained against a person who has maliciously procured the master
to discharge such servant from employment in which he is en-
gaged under legal contract for a certain period, provided dam-
ages resulted to the employe from such discharge.^ So boycotts
11. Schuyler v. Curtis, 147 N. vacy Based on Breach of Trust or
Y. 434, 42 N. E. 22, 49 Am. St. Confidence." — 57 Cent. L. Jour.
Rep. 671, 31 L. R. A. 286; Atkin- 3G1; "The Right of Privacy.'"— 36
son V. Doherty, 121 Mich. 372, 80 Chicago Legal News, 126.
N. W. 285, 46 L. E. A. 219, 80 Am. 1. Chiplcy v. Atkinson, 23 Fla.
St. Rep. 507. 206, 1 So. 134, 11 Am. St. Rep. 367
12. Corliss V. Walker Co., 57 Jones v. Blocker, 43 Ga. 331
Fed. Rep. 434, 31 L. R. A. 283 and Walker v. Cronin, 107 Mass. 555
note, 64 Fed. Rep. 380. Lucke v. Clothing Cutters, 77 Md.
13. In re Molineux, 83 N. Y. S. 396, 26 A. 505, 19 L. R. A. 408, 39
943, 41 Miscel. 154. See, "Actions Am. St. Rep. 421; Jones v. Stanley,
for Infringement of Right of Pri- 76 N. Car. 355; Haskins v. Roys-
399
341
OPEEATION OF CONTKACTS.
Ch. 14
■with unlawfulness and malicious intent are illegal. For every
person has a right as between his fellow-citizen and himself, to
carry on his business, within legal limits, according to his own
discretion and choice, with any means which are safe and
healthful, and to employ therein such persons as he may select;
and every other person is subject to the correlative duty arising
therefrom, to refrain from any obstruction of the fullest exer-
cise of this right, which can be made compatible with the exer-
cise of similar rights by others.^
ISTo one has a right to interfere with the business of another,
his occupation, profession, or way of obtaining a livelihood ;
and it does not matter whether the interference is tainted with
any moral turpitude or not.^
But it is said that this rule applies only to actions by masters
or servants for interference of third party in their contracts for
hire. Beyond this, it is held, the rule does not go, and has no
ton, 70 N. Car. 601, 16 Am. Rep.
780; Lumley v. Gye, 2 El. & Bl.
216; Gregory v. Brunswick, 6 Man.
& G. 205; Perkins v. Pendleton, 90
Me. 16G, 38 A. 96, 60 Am. St. Rep.
252; Temperton v. Russell (1893),
1 Q. B. 715; Carew v. Rutherford,
106 Mass. 1, 8 Am. Kep. 287; Van
Horn V. Van Horn, 52 N. J. L. 284,
20 A. 485, 10 L. R. A. 184; Curran
V. Galen, 22 N. Y. S. 826, 152 N.
Y. 33, 46 N. E. 297, 37 L. R. A.
802, 57 Am. St. Rep. 496; Bradley
V. Pierson, 148 Pa. St. 502, 24 A.
65; Moores v. Bricklayers' Union
(Ohio), 23 Week. L. Bui. 48; Delz
V. VVinfree, 80 Tex. 400, 16 S. W.
Ill, 23 Am. St. Rep. 705; Jackson
V. Stanfield, 137 Ind. 592, 36 N. E.
345, 37 N. E. 14, 23 L. R. A. 588;
Bixby V. Dunlap, 56 N. H. 456;
Manstick v. Ranege, 9 Neb. 390, 2
N. 739, 31 Am. Rep. 415; Barr v.
Trades Council, 53 K. J. Eq. 101,
30 A. 881; Garrett v. Taylor, Cro.
Jac. 567; Keeble v. Hickeringill, 11
East, 574; Young v. Hicks, 6 Ad.
& E. 606; Bowen v. Hall, 6 Q. B.
Div. 333.
2. Barr v. Trades Council, 53 N.
J. Eq. 101, 30 A. 881; Hilton v.
Eckersley, 6 EL & Bl. 47. See, also,
Mogul Steamship Co. v. McGregor,
23 Q, B. 608; Toledo, etc. Co. v.
Penn. Co., 54 Fed. Rep. 730, 738;
Hopkins v. Stove Co., 83 Fed. Rep.
912, 28 C. C. A. 99, 49 U. S. App.
709; Exchange Tel. Co. v. Gregory,
73 L. T. 120.
3. Doremus v. Hennessey, 62 111.
App. 391, 176 111. 608, 52 N. E.
924, 54 N. E. 524, 43 L. R. A. 791,
68 Am. St. Rep. 203; Bowen v.
Hall, 6 Q. B. D. 33; O'Neill v. Be-
hanna, 182 Pa. St. 236, 37 A. 843,
38 L. R. A. 382, 61 Am. St. Rep.
702 and note; Lumley v. Gye, 2 El.
& Bl. 216; Mogul Steamship Co. v.
McGregor, 21 Q, B. 544, 553, 23 Q.
B. 598.
400
Ch. 14 CONTKACTUAI. RELATIONS. § 341
application to ordinary contracts ;* but this is not upheld by the
weight of authority.
Neither can the State boycott in running an employment bu-
reau, by discriminating against employers whose employes are
on a strike or locked out, and not allowing such employers to
patronize the bureau. Such statute is in conflict with Four-
teenth Amendment to the Federal Constitution.^
As to boycotts in general, the following rules are controlling:
1, All laborers may lawfully combine and form unions for their
mutual benefit, and may use all lawful means to promote their
own interests, if they do not infringe upon the rights of others ;
2, they may refuse to work on terms offered by the employer;
3, it is an unlawful means to hinder or prevent others from work-
ing for an employer under such terms as they shall see fit f 4,
one means of such hindering and preventing is in various ways,
to render it either difficult or uncomfortable for such willing
workmen so to labor ; 5, another unlawful means is to hinder or
prevent willing workmen from working and to compel employ-
ers to accede to terms which they would not otherwise adopt — •
this is the boycott in its various forms.^
All the courts hold that contracts binding the employer to
engage none but union employes, and to discharge no employe
except for cause satisfactory to the union, are against public
policy and unconstitutional. All men. have a right to work
where they desire when engaged, and the employers have a
right to engage men from whatever source they please without
discrimination against any on account of their affiliations or
non-affiliations with organized labor. So in case of a strike the
employer has the right to engage other workmen. He may de-
clare for an open shop, thereby engaging any laborer, and the
4. Gleneoo Sand Co. .v. Hudson, 7. Mathew v. People, 202 111. 389,
138 Mo. 439. 40 S. W. 93, 36 L. R. 67 N. E. 28, 95 Am. St. Rep. 241;
A. 840, 60 Am. St. Rep. 560. Kellyville Coal Co. v. Harrier. 207
5. Mathews v. People. 202 111. 111. 624, 99 Am. St. Rep. 240. See,
389, 67 N. E. 28, 95 Am. St. Rep. also, Connelly v. United States Sew-
241. er Pipe Co., 184 U. S. 540, 22 S.
6. Martin v. McFall (^. J. Eq.), Ct. 431.
55 A. 465.
401
§§ 341, 342 OPERATION OF CONTRACTS. Ch. 14
laborers cannot legally bind him to keep closed shop, or to hire
none but union men. The right to contract cannot be circum-
scribed by contract.^
So a statute forbidding, under penalty, an employer to dis-
charge an employe because he is a member of a labor organiza-
tion, violates the constitutional right of liberty and is therefore
void.*
§ 342. Duty not to interfere — In any contract. — It is held
that a third party has no right to interfere in any contract
whether it be between master and servant or other parties. So
remedies given by the common law in cases of malicious inter-
ference of third parties, are not in terms limited to any discrip-
tion of servants or service ; so in all cases where a man has a
temporal loss or damage by the wrong 'of another, he may have
an action upon the case, to be repaired in damages.^ Thus,
where a third party has maliciously influenced an opera singer
to break an engagement to sing at a theatre, the plaintiff may
recover damages from the wrongdoer,^
And so it is held that an action will lie for the malicious pro-
curement of a breach of contract, though not for personal ser-
vice, if by the procurement damage is intended to result and did
result to plaintiff.^
8. Gray V. Building Trades Coun- Car. 601, 16 Am. Rep. 780; Chip-
cil (Minn.), 97 N. W. 633, 63 L. R. ley v. Atkinson, 2^ Fla. 206, 11 Am.
A. 753. St. Rep. 367; Walker v. Cronin,
9. State V. Kreutsberg, 114 Wis. 107 Mass. 555; Bowen v. Hall. 6
530, 90 N. W. 1098, 58 L. R. A. Q. B. Div. 339; Jones v. Blocker,
748, 91 Am. St. Rep. 934. See "The 43 Ga. 331; Lucke v. Clothing Cut-
Law of Strikes and Boycotts."— 52 ters, 77 Md. 396, 39 Am. St. Rep.
Am. L. Register, 73. 421, 26 A. 505, 19 L. R. A. 408;
1. Temperton v. Russell (1893), Doremus v. Hennessey, 62 HI. App.
1 Q. B. 715; Bowen v. Hall, 6 Q. B. 391, 176 111. 608, 52 N. E. 924, 54
Div. 339; Haskins v. Royster, 70 N. E. 524, 43 L. R. A. 797, 68 Am.
N. Car. 601, 16 Am. Rep. 780. St. Rep. 203; Tarlton v. McGawley,
2. Lumley v. Gye, 2 El. & Bl. Peak, N. P. C. 270; Clifford v.
216, 228. Brandon, 8 Camp. 358; Gregory v.
3. Lumley v. Gye, 2 El. & Bl. Brunswick, 6 Man. & G. 205; Gar-
216; Haskins v. Royster, 70 N. rett v. Taylor, Cro. Jac. 567.
402
Cll. 14 COXTKAC'TUAIv KELATIOA'S. § 342
In England it is held that malice or indirect motive, though
accompanied by loss to another, is now definitely declared to be
in itself no cause of action. There must be some independent,
unlawful act. Therefore, it is actionable for A knowingly to
procure B to break his contract with C ; it is also actionable for
A, by the use of illegal means, to procure B to do an act detri-
mental to C. But in both cases the gist of the action is the
prima facie unlawfulness which amounts to a civil wrong if it
is accompanied by knowledge on his part of the effect of his
conduct.'* The facts of this case are these: In April, 1804, two
shipwrights. Flood and Taylor, were employed by the Glengall
Iron Co. in repairing a steamship. Upon the same job other
millwrights were employed, and also a number of ironworkers,
who were members of the Boilermakers' Society, and it was a
rule of their union that ironworkers ought to work in iron only
and shipwrights in wood. Upon this job Flood and Taylor
were working in accordance with the rule, but on a former occa-
sion they had violated it by working in iron, and the iron work-
ers decided to have no association with them. Mr. Allen, the
delegate of the boilermakers' society, was called upon to present
these objections to the company, which he did, saying that un-
less Flood and Taylor were discharged the other men would quit
work. They were discharged. This course was rendered prac-
ticable without any obvious illegality by the fact that the men
of both classes were engaged merely by the day.
The discharged men brought an action against Allen, who
had not procured any breach of contract on the part of the com-
4. Allen v. Flood (1898), A. C. of the high court. Tlie ease was
1, 177. This case came on for trial then carried to Oie House of Lords,
before a judge and jury in 1894, the court of last resort, which re-
and a verdict was rendered, for the versed the case, the judges standing
plaintiff, of 20 pounds damages, six for reversal to three for affir-
the jury finding fliat Allen had mation. In the courts where this
acted maliciously. Allen appealed, case was heard, from first to last,
and the Court of Appeals unani- twenty-one judges were engaged, of
mously affirmed the judgment, after whom thirt<'en decided in favor of
hearing two arguments and con- the discharged men. See Huttloy
suiting officially with the law lords v. Simmons, 14 Times L. R. 150.
403
§§ 342-344 OPERATION OF CONTKACTS. Cll. 14
pany, nor in bringing pressure to bear upon the manager had
he used, or threatened to use, any violence. The only way,
therefore, of supporting the action was to base it upon malice;
that is, upon the intention of injuring Flood and Taylor for the
sake of proving a benefit of the boilermakers' society. In this
case Allen did nothing unlawful. The House of Lords held
that the action was based solely on malice, which was not enough
to sustain the action.
§ 343. Restricting this rule to servants. — One line of cases
holds that the malicious interference of a third party does not
give the party injured any right of action, unless he be an ap-
prentice, menial servants and others whose means of living is
by manual labor ; but this exception exists by virtue of statute.^
Thus, when this statutory rule is adopted, if the defendant malic-
iously interfered and prevented a performance of a contract,
not for labor, the plaintiff has no remedy for damages sus-
tained.^
In those jurisdictions where this statutory doctrine has not
been adopted, the interference of a third person in any kind of
a contract comes under the rule as to damages.
§ 344. When the period of employment is not certain. —
ISTeither the fact that the term of service interrupted is not for
a fixed period nor the fact that there is not a right of action
against the person who is induced or influenced to terminate
the service or to refuse to perform his agreement, is of itself
a bar to an action against a third person maliciously and wan-
tonly procuring the termination of or a refusal to perform the
1. Statute of Lalwrers. 25 Ed- Me. 225, 46 Am. Rep. 373; Payne
ward III. V. Railroad Co., 13 Lea (Tenn.),
2. Chambers v. Baldwin, 91 Ky. 507, fQ Am. Rep. 666; Glencoe
121, 15 S. W. 57, 11 L. R. A. 545 Sand Co. v. Hudson, 138 Mo. 439,
and note, 34 Am. St. Rep. 165; 40 S. W. 93, 36 L. R. A. 804, 60
Ashley v. Dixon, 48 N. Y. 430, 8 Am. St. Rep. 560; Rourlier v. Ma-
Am. Rep. 559; Boyson v. Thorn, 98 cauley, 91 Ky. 135, 15 S. W. 00, 11
Cal. 578, 33 P. 442, 21 L. R. A. 233 L. R. A. 550, 34 Am. St. Rep. 171.
and note; Heywood v. Tillson, 75
404
Cll. 14 CONTKACTUAL KEJ.ATIONS. §§ 344, 345
agreement. So long- as the employer is willing and ready to
perform, it is not the legal right, but is wrong on the part of
a third party maliciously and wantonly, to procure the employer
to terminate or refuse to perform the contract, which makes
the third party liable. A servant who is earning a living or
otherwise enjoying the fruits and advantages of his industry
or enterprise or skill, has a right to pursue such employment
undisturbed by mere malicious or wanton interference.^
And for a master to maintain an action it is enough if the
service is one at will, if subsisting when interrupted by an un-
lawful act,^ and the rule applies as to the employe.^
§ 345. Doing an act which is legal in itself. — Where one
does an act which is legal in itself and violates no right of an-
other person, it is generally held that the fact that the act is
done for malice or other bad motive toward another, does not
give the latter a right of action against the former. Though
there be a loss or damage resulting to the other from the act,
and the doer is prompted to it solely by malice, yet if the act be
legal and violates no legal right of the other person there is no
right of action to the injured person.'* But there are decisions
1. Chipley v. Atkinson, 23 Fla. Compare Roycroft v. Tayntor, 68
206, 11 Am. St. Rep. 367. Vt. 219, 35 A. 53, 33 L. R. A. 225,
2. Salter v. Howard, 43 Ga. 601 ; 54 Am. St. Rep. 882.
Sykes v. Dixon, 9 Ad. & El. 244. 4. Bradford Corporation v. Pick-
See, also, Rice v. Manly, 66 N. Y. les (1895), A. C. 587; Phelps v.
82, 23 Am. Rep. 30; Gunter v. As- Xowlin, 72 N. Y. 3D, 28 Am. Rep.
tor, 4 J. B. Moore, 12; Glass Co. v. 03 and note; Acton v. Blundell, 12
Binney, 4 Pick. (Mass.) 425; Com- :\rees. & Wei. 324; Orr v. Ins. Co.,
pare Hart v. Aldridge, Cowp. 54; 12 La. Ann. 255; Wheatly v. Baugh,
Green v. Button, 2 Cromp. M. & R. 25 Pa. St. 528, 64 Am. Dec. 721 and
707 ; Harvester Co. V. Meinhardt, 24 note; Chatfield v. Wilson, 28 Vt.
Hun (N. Y.), 489; Benton v. Pratt, 49; South Royalton Bank v. Bank,
2 Wend. (N. Y.) 385, 20 Am. Dec. 27 Vt. 505; Howard v. Benton, 32
623 and note. Vt. 724; Bradley v. Fuller, 118
3. Flood V. Jackson (1895), 2 Alass. 239; Hunt v. Simonds, 19
Q. B. 21. See, also, Doremus v. :V[o. 583; Jenkins v. Fowler, 24 Pa.
Hennessy, 62 111. App. 391, 176 HI. St. 308; Glendon Iron Co. v. Uhler,
008, 52 N. E. 924, 54 N. E. 524, 43 75 Pa. St. 467, 15 Am. Rep. 599;
L. R. A. 797, 68 Am. St. Rep. 203; J?radford v. Pickles (1895), 1 Ch.
405
§§ 345-348 OPEBATION OF CONTEACTS. Oil. 14
that bold a contrary doctrine. Thus, if a party dig a well on
his own land for the sole purpose of inflicting damages upon
his neighbor who has a right to a spring, he will be liable,^ which
is the rule of the civil and not of the common law.^
§ 346. Fraudulent representations. — Where a contract
would have been fulfilled but for false and fraudulent repre-
sentations of a third person, an action for damages will lie
against such person, although the contract could not have been
enforced.' An action will lie by a party to a contract against
a third person for fraudulent representations by the latter, in-
ducing the other party to the contract to break it.^
§ 347. To sustain an action the discharge must take place.
— ^An act done or attempt made by a third party with the malic-
ious intent to procure such a discharge, but not successful in
procuring it, will not support an action brought for maliciously
procuring the discharge. The actual procurement of the dis-
charge is an essential to such an action.^ If the servant is not
discharged, but voluntarily leaves the employment on account
of the conduct of the party charged with having procured his
discharge, the action cannot be maintained.^"
§ 348. As to privity of the parties — Negligence. — Where
there is no question of agency or assignment of a contract, a
145; Hague v. Wheeler, 157 Pa. St. 8. Rice v. Manley. 66 N. Y. 82,
424, 27 A. 714; Chasemore v. Eich- 23 Am. Rep. 30; Ashley v. Dixon,
ards, 7 H. L. Cas. 349, 387 48 N. Y. 430, 8 Am. Rep. 559.
5. Chesley v. Kinor. 74 Me. 104, 9. Chipley v. Atkinson, 23 Fla.
43 Am. Rep. 5G9; Flalieity v. Mo- 206, 11 Am. St. Rep. 367.
ran, 81 Mich. 52, 45 N. W. 381, 8 10. Chipley v. Atkinson. 23 lla.
L. R. A. 183, 21 Am. St. Rep. 206, 11 Am. St. Rep. 367. See, also,
510. Reynolds v. Everett, 144 N. Y. 189,
6. Pingrey on Real Prop. 230, 39 N. E. 72; People v. Hughes, 137
231. N. Y. 29, 32 N. E. 1105; People v.
7. Benton v. Pratt, 2 Wend. (N". Barondess, 133 N. Y. 649, 31 N. E.
Y.) 385, 20 Am. Dec. 623 and note; 240.
Green v. Biilton, 2 Cromp. :M. & R.
707.
406
Cll. 14 CONTBACTUAI. RELATIONS. § 348
stranger caunot acquire any rights under it. Where there is
a contract between two parties, and a third party is a mere
stranger and is not in privity with either of the contracting
parties, and the contract is not made for his benefit, the third
party has no rights under it and cannot claim any benefits.^
It is not every promise made by one to another, from the
performance of Avhich a benefit may ensue to a third, which
gives a right of action to such third person, he being neither
privy to the contract nor to the consideration. The contract
must be made for his benefit, as its object, and he must be the
party intended to be benefited.^ The rule is not so far
extended as to give to a third person, who is only indirectly and
incidentally benefited by the contract, a right to sue upon it.
But the name of the person to be benefited by the contract need
not be given, if he is otherwise sufficiently described or desig-
nated. He may be one of a class of persons, if the class is suf-
ficiently described.^
In every case in which an action has been sustained there
has been a debt or duty owing by the promisee to the party
claiming to sue upon the promise. Whether the decisions rest
upon the doctrine of agency, the promisee being regarded as the
agent of the third party, who, by bringing his action adopts his
acts, or upon the doctrine of a trust, the promisor being regarded
as having received money or other thing for the third party, is
not material. In either case there must be a legal right founded
upon some obligation of the promisor, in the third party, to
adopt and claim the promise so made for his benefit.*
1. Martin v. Peet, 92 Hun, 133, 25 Am. Rep. 195; Wright v. Terry,
36 N. Y. S. 554; 71 N. Y. St. 725; 23 Fla. 160; Austin v. Seligman,
Fenden v. Kelly, 58 HI. App. 283; 18 Fed. Rep. 519; Burton v. Lar-
Insurance Co. v. Water Co., 42 Mo. kin, 36 Kan. 246, 13 P. 308. 59
App. 118; Howesmon v. Water Co., Am. Rep. 541.
119 Mo. 304, 24 S. W. 784. 23 L. 3. Burton v. Larkin, 36 Kan.
E. A. 146 and note, 41 Am. St. Rep. 246. 13 P. 398, 59 Am. Rep. 541 ;
654; Freeman v. Railroad Co.. 173 Johannes v. Ins. Co., 66 Wis. 50. 27
Pa. St. 274, 33 A. 1034. X. W. 414, 57 Am. Rep. 249.
2. Simon v. Brown. 68 N. Y. 355; 4. Vrooman v. Turner. 69 X. Y.
Vrooman v. Turner, 69 X. Y. 280, 280, 25 Am. Rep. 195. See, also,
407
§§ 348, 349 OPERATION OF CONTEACTS. CJl. 14
Thus, where a party after agreeing to improve and sell de-
fendant's lots, and with the proceeds pay for the lots, agrees to
pay a third party commission for making the sale, defendant is
not liable for such commission, as there is no privity of con-
tract.^
And this principle is illustrated in the case of an action for
negligence. So the acceptance of a thing sold, by the vendee,
except under special circumstances, relieves the vendor from
liability to a stranger for an injury resulting to him from the
negligent manufacture or construction of the thing sold. Neg-
ligence to be actionable must occur by breach of a legal duty
arising out of a contract or otherwise owing to the person sustain-
ing the loss. In such case there is no privity of contract between
the manufacturer and the stranger, and hence the third party
is without remedy, for the negligent manufacture of the article
sold to the vendee.^
At common law a death of person by negligence or wrongful
act gave no right of action. And so where an employer con-
tracts with his employe to protect him from the wrongful acts
of strikers, and the employe is killed by them, no action sur-
vives, and the employer is not responsible.^
§ 349. Water companies — Rights of third persons. — The
owner of property which has been destroyed by fire cannot main-
tain an action to recover damages from a water company, on the
ground that the property was destroyed by the failure of the
Lawrence v. Fox, 20 N". Y. 268; 27 L. R. A. 583, 11 C. C. A. 253, 24
Howsmon v. Water Co., 119 Mo. U. S. App. 7; Standard Oil Co. v.
304, 24 S. W. 784, 23 L. R. A. 146 Murry, 119 Fed. Rep. 572, 57 C.
and note. C. A. 1, 35 Chi. L. News, 71; Brag-
5. Crawford v. Brown, 21 Colo. don v. Perkins-Campbell Co.. 87
272, 40 P. 692. See, also, Lewis Fed. Rep. 109, 30 C. C. A. 567, 58
V. Land Co., 124 Mo. 672, 28 S. W. U. S. App. 91; Necker v. Harvey,
324. 49 Mich. 517, 14 N. 503.
6. Savings Bank v. Ward, 100 7. Lewis v. Coal Co., 112 Ky.
U. S. 195; Hill v. Lane, 37 N. J. 845, 66 S. W. 1044. See 56 Cent.
L. 5; Goodlander Mill Co. v. L. J. 365.
Standard Oil Co., 63 Fed. Rep. 400,
408
Ch. 14 CONTRACTUAL ItKLATIONS. § 349
water company to furnish a supply of wator as required by the
terms of its contracts with the town, since there is no privity
of contract between the parties to the action,^ And the fact
that the ordinance granting the franchise requires the company
to supply the city and its inhabitants with sufficient water to
put out fires, or to maintain the water at a certain pressure, does
not create the necessary privity of contract.^
But where the statute requires that every action must be
prosecuted in the name of tlie real party in interest, it has been
held in Kentucky that when the contract of a water company
with a city declares that it is made for the benefit of the in-
habitants, and for the protection of private property against
destruction by fire, the owner of the property which is taxed for
water rent, and is destroyed by fire through the failure of the
company to supply a sufficient quantity of water to extinguish
the same, may in his own name, sue the company on its con-
tract with the city.^
And unless made so by statute, a city is not liable for failing
to protect the inhabitants against the destruction of property
1. Howsmon v. Water Co., 119 48, 51 N. W. 84, 29 Am. St. Rep.
Mo. 304, 24 S. W. 784, 23 L. R. A. 856 j House v. Water Works, 88
146 and note, 41 Am. St. Rep. 654; Tex. 233, 31 S. W. 179, 28 L. R. A.
Insurance Co. v. Water Co., 42 532; Kansas City v. O'Connell, 99
Mo. App. 118; Davis v. Water Mo. 357, 12 S. W. 791; Mott v.
Works, 54 Iowa, 59, 6 N. 126, 37 Water Co., 48 Kan. 12, 28 P. 989,
Am. Rep. 185; Nickerson v. Hy- 15 L. R. A. 375, 30 Am. St. Rep.
draulic Co., 46 Conn. 24, 33 Am. 267.
Rep. 1 and note; Ferris v. Water 2. Fowler v. Water Works Co.,
Co., 16 Nev. 44, 40 Am. Rep. 485; S3 Ga. 219, 9 S. E. 673, 20 Am.
Fowler v. Water Works Co., 83 Ga. St. Rep. 313; Eaton v. Water Works
219, 9 S. E. 673, 20 Am. St. Rep. Co., 37 Neb. 546, 56 N. W. 211, 21
313; Atkinson v. Water Works Co., L. R. A. 653, 40 Am. St. Rep. 510;
L. R. 2 Exch. 441; Eaton v. Water Britton v. Water Works Co., 81
Works Co., 37 Neb. 546, 56 N. W. Wis. 48, 51 N. W. 84, 29 Am. St.
291, 21 L. R. A. 653, 40 Am. St. Rep. 856.
Rep. 510; Wainwn'fflvt v. Water 3. Paduca Lum. Co. v. Water
Works Co., 78 Hun, 146, 28 N. Y. Co., 89 Ky. 340, 12 S. W. 554, l-*?
S. 987, 60 N. Y. St. 204; Foster v. S. W. 249, 7 L. R. A. 77, 25 Am.
Water Co., 3 tea (Tenn.), 42; Brit- St. Rep. 536.
ton V. Water Works Co., 81 Wis.
409
§§ 349, 350 OPERATION OF CONTRACTS. Ch. 14
by fire.* And the business to furnish water to extinguish fire
does not authorize the owner of property destroyed thereby to
maintain an action of tort, since a non-breach, by omission
only, of a contract entered into with the public, is not a tort,
either direct or indirect, to the private property of an indi-
vidual.^
Not even will a statute requiring the pipes to be kept charged
at a certain pressure give a citizen a right of action.^
The owner cannot maintain an action, even though the city
has raised by taxation a special fund to which the planitiff con-
tributed, to pay for a sufficient supply of water for use in case
of fire;^ nor if the citizens pay a special tax to tBe company,
under its contract with the city.*
§ 350. Assignment by city of contract. — A city has no such
interest in the property destroyed as to give it a right of action
against the water company, and therefore, the owner of the
property destroyed cannot maintain an action against the com-
pany as assignee of the right of action of the city.^ And a
municipality has no power to contract by ordinance or otherwise
with an individual or company, to indemnify a citizen and
taxpayer for damages wdiich he may sustain by reason of
a failure to furnish water as provided in tlie contract, so as to
enable the citizen to maintain an action therefor in his own
name; nor is such power conferred by a statute authorizing
cities to contract for the building and operation of waterworks
by individuals or companies.^
4. Wright V. Augusta, 78 Ga. 146 and note, 41 Am. St. Rep. 654.
241, 6 Am. St. Rep. 256. 1. Ferris v. Water Co., 16 Nev.
5. Fowler v. Water Works Co., 44, 40 Am. Rep. 486.
83 Ga. 219, 9 S. E. 673, 20 Am. 2. Vanhorn v. Des Moines. 63
St. Rep. 313. Iowa, 447, 19 N. 293, 50 Am. Rep.
6. Atkinson v. Water Works Co., 750; Becker v. Water Works, 79
2 Exch. 441. Iowa, 419, 44 N. W. 694, 18 Am.
7. Becker v. Water Works, 79 St. Rep. 377 and note; Mott v.
Iowa, 419, 44 N. W. 694, 18 Am. Water Works, 48 Kans. 12, 28 P.
St. Rep. 377 and note. 989, 15 L. R. A. 375, 30 Am. St.
8. Howsmon v. Water Co., 119 Rep. 267; Ins. Co. v. Water Co., 42
Mo. 304, 24 S. W. 784, 23 L. R. A. Mo. App. 118.
410
Cli. 14 OONTEACTUAI. RELATIONS. § ^51
§ 351, No privity of parties or of consideration. — Before a
third party can avail himself of a condition in a contract be-
tween two others, he must show that it was made for his benefit
as its object, and that he was the party intended to be benefited.^
Thus, a manufacturing company, for a bonus, contracted to con-
struct its plant on a land company's land, and to maintain it
there for a certain time. The land company, to raise the
bonus, sold lots, conditioned on the plant being placed on certain
ground. Under the circumstances the purchasers of the lots
were not parties to the contract requiring the maintenance of
the plant for a certain time, so as to authorize them to rescind
the purchases, because the plant was abandoned after construc-
tion.^ The location of the plant having been secured, the fact
that the requisite number of lots was not sold, or the full
amount of bonus was not paid, is not a sufficient around for the
rescission of notes given in completion of the contracts for the
sale of the lots, as the latter conditions were merely minor mat-
ters conducing to the location of the plant ;^ and this is especially
so as the lot purchasers derived no benefit whatever from the
performance of the minor conditions, except as they caused the
location of the plant.^ Because, if the end to be obtained has
been secured, and if the contract has been substantially per-
formed, minor matters and measures conducing thereto, which
are means and conduits to that end, although they remain to
some extent unperformed, will be disregarded.^
1. Safe Co. V. Ward, 46 N. J. L. 4. Conn v. McCollongh, 12 :\rn.
19; Lampert v. Gas Light Co., 14 App. 356; Railroad Co. v. Tygard,
Mo. App. 383; Simpson v. Bro%vn, 84 Mo. 264, 54 Am. Rep. 97; Peo-
68 N. Y. 355; Vrooman v. Turner, pie v. Holden, 82 111. 93: Bridge
69 N. Y. 280, 25 Am. Rep. 195; Co. v. Pomroy, 15 Pa. St. 151;
Burton v. Larkin, 36 Kan. 246, 13 CouTtA\Tight v. Deeds, 37 Iowa.
P. 398, 59 Am. Rep. 541; Land Co. 503; Railroad Co. v. Stockton, 51
V. Pitt, 114 Mo. 135, 139, 21 S. W. Cal. 334; State v. Hastings, 24
449. Minn. 78; Holmes v. Oil Co.. 138
2. Lewis V. Land Company, 124 Pa. St. 546, 21 A. 231 21 Am. St.
Mo. 672, 28 S. W. 324. Rep. 919: Jackson v. Stookbridge,
3. Lewis V. Land Company, 124 29 Tex. 394, 94 Am. Dec. 290.
Mo. 672, 28 S. W. 324. 5. Lewis v. Land Co.. 124 Mo.
672. 28 S. W. .124.
411
§ 352 OPERATION OF CONTKACTS. Cll. 14
ARTICLE II.
Promise for the Beneft of a Third Person.
Section 352. When Third Person May Become a Party to a Contract.
353. Assumption of Mortgage Debt — Right of Mortgagee to Sue.
354. Must be Something More Than a Mere Promise.
355. Acceptance by Tliird Person.
356. Contract for Benefit of Third Person — Modification of the
General Rule.
357. Exceptions to the Modified Rule.
358. Party to the Consideration — Trust.
359. Promisee as Agent.
360. English Doctrine.
361. Next of Kin— Right to Sue.
362. Covenants.
363. Covenants — Another Rule.
364. Who May Bring Suit on Simple Contract.
365. Description of the Debts.
366. Agreement to Save Harmless.
367. Many Promisors — Suit Against.
§ 352. When a third person may become a party to a con-
tract. — The general rule is that in order that a promise made
bj one person to another, for the benefit of a third person, shall
constitute the first a debtor of a third, and entitle the latter to
sue the first on such promise, it must appear that there was a
clear intent upon the part of the parties to the contract that the
first person shall become such debtor. The mere fact that the
third party may be benefited is not sufl&cient.^
1. State V. Railroad Co., 125 Mo. v. Ins. Co., 56 Minn. 38, 57 N. W.
698, 28 S. W. 75; Ellis v. Harrison, 314, 45 Am. St. Rep. 438 and note;
104 Mo. 270, 16 S. W. 198; Bank v. Barneft v. Pratt, 37 Neb. 349, 55
Benoist, 10 Mo. 521; Meyer v. N. W. 1050; Gifford v. Corrigan,
Lowell, 44 Mo. 328; Howsmon v. 117 N. Y. 257, 22 N. E. 756, 6 L.
Water Co., 119 Mo. 304, 24 S. W. R. A. 610 and note, 15 Am. St.
784, 23 L. R. A. 146 and note, 41 Rep. 508: McDowell v. Laev, 35
Am. St. Rep. 654; Wright v. Terry, Wis. 171; Bohanan v. Pope, 42 Me.
23 Fla. 160, 2 So. 6; Simson v. 93; Wood v. Moriarity, 15 R. I.
Brown, 68 N. Y. 355; Merrill v. 518, 9 A. 427; Mason v. Hall, 30
Green, 50 N. Y. 270 ; Turk v. Ridge, Ala. 599; Brice v. King, 1 Head
41 N. Y. 201; Lovejoy v. Howe, (Tenn.), 152; Allen v. Thomas, 3
55 Minn. 353, 57 N. W. 57; Barnes Met. (Ky.) 198, 77 Am. Dec. 169;
412
Ch. 14
CONTR-VCTUAL ILEI.ATIONS.
§ 352
Thus, where a debtor assigus his property to a purchaser who,
in consideration thereof, agrees to pay the claim of the credi-
tors of the assignor, such creditors may sue the purchaser di-
rectly upon his agreement.^ And so, where a wife has separ-
ated from her husband, and the brother of the wife executes a
mortgage for a consideration to the husband to support the wife,
the wife may claim the benefit from the mortgage.^
The third person must be legally competent to receive the
thing or benefit, and perform his part,^ and receive the benefit
with full knowledge,^ and take the entire benefit or nothing,®
and if fraudulent the acceptance must include the fraud and
the consequences.'
If a party promises the father that if he will let him name
the child of the former he will pay the child money, and the
request is granted, the child can reecover on such contract f and
Ballas V. Fogely, 19 Pa. St. 273;
Joslin V. Car Spring Co., 36 N. J. L.
141 ; Kauffman v. Cooper, 46 Neb.
644, 65 X. W. 796; Pugh v. Barnes,
108 Ala. 167, 19 So. 370; Knott v.
Railroad Co., 84 Iowa, 462, 51 N.
W. 57 ; First Nat. Bank v. Rowley,
92 Iowa, 530, 61 N. W. 195; Cramp-
ton V. Ballard, 10 VI. 251; Babeock
V. Cbase, 92 Hun, 264, 36 N. Y. S.
879, 72 N. Y. St. 4D1; Coleman v.
Whitney, 62 Vt. 123, 20 A. 322, 9
L. R. A. 517; Maxfield v. Schwartz,
43 Minn. 221, 45 N. W. 429; Hen-
drick V. Lindsay, 93 U. S. 143;
Steene v. Aylesworth, 18 Conn. 244;
Flint V. Cadenasso, 64 Cal. 83, 28
P. 62 Hecht v. Caughron, 46 Ark.
135; Devol v. Mcintosh, 23 Ind.
529; Jones v. Thomas, 21 Gratt.
(Va.) 96; Brown v. O'Brien, 1
Rich. (S. Car.) L. 268, 44 Am. Dec.
254; Burr v. Beers, 24 N. Y. 178,
80 Am. Dec. 327 and note; Cook v.
Berrott, 66 Hun, 633, 21 N. Y. S.
358; Bassett v. Hughes, 43 Wis.
319; Bristow v. Lane, 21 111. 194;
Urquhart v. Brayton, 12 R. I. 169.
2. Maxfield v. Schwartz, 43 Minn.
221, 45 N. W. 429: Lovejoy v.
Howe, 55 Minn. 353, 57 N. W. 57.
3. Coleman v. Whitney, 62 Vt.
123, 20 A. 322, 9 L. R. A. 517.
4. McCraeken v. San Francisco,
16 Cal. 591; Ashbury, etc. Co. v.
Riche, 7 H. L. 653, 674. See "Con-
tracts for the Benefit of Thiid
Persons." — 15 Harv. L. Review, 767.
5. Rowan v. Hyatt, 45 N. Y. 138;
Clark V. Lyon, 7 Nev. 75; Dickin-
son V. Conway, 12 Allen (Mass.),
487 ; Lime Co. v. Green, L. R. 7
C. P. 43.
6. Southern Express Co. v. Pal-
mer, 48 Ga. 85 ; Henderson v. Cum-
mings, 44 111. 325.
7. Cranz v. Hunter, 28 N. Y. 389
Law V. Grant. 37 Wis. 548; Com-
pare Brook V. Hook, L. R. 6 Exch.
89.
V. Libbey, 165 Mass.
E. 1127, 52 Am. St.
8. Eaton
218, 42 N.
Rep. 511.
413
§§ 352, 353
OPERATION OF CONTRACTS.
Oil. 14
the same rule applies where a child's name is changed hy re-
quest of a third j)artj.^
§ 353- Assumption of mortgage debt — Right of mortgagee
to sue. — When the purchaser of mortgaged lands assumes the
mortgage debt and agrees to pay it as a part of the consideration,
the mortgagee can sue him for the debt, though some of the
decisions hold that the suit must be brought in equity.^
The purchaser, by accepting the estate conveyed, must as a
matter of law be presumed to have agreed to pay the notes se-
cured upon it ; for he does not simply buy the estate subject to
the mortgage, but impliedly assumes to pay the mortgage as a
part of the consideration.^
The contract, being implied, is not within the statute of
frauds ; and not being under seal, may be enforced by an action
of assumpsit.^ The agreement implied between the purchaser
and the mortgagor inures to the benefit of the mortgagee, so as
to enable the mortgagee, as is generally held, to sue the pur-
chaser of the mortgaged premises directly, as there is thus a
privity of contract established.*
9. Babcock v. Chase, 92 Hun,
264, 36 N. Y. S. 879, 7'2 N. Y. St.
401.
1. Pingrey on Mort. 1028-1031,
and cases cited; Winn v. Invest-
ment Co., 125 Mo. 528, 28 S. W.
998.
2. Braman v. Dowse, 12 Cush.
(Mass.) 227; Pike v. Brown, 7
Cush. (Mass.) 133; Furnas v. Dur-
gin, 119 Mass. 500, 20 Am. Rep.
341; Crawford v. Edwards 33 Mich.
354; Thorp v. Coal Co., 47
Barb. (N. Y.) 439; Gifford v. Cor-
recan, Il7 N. Y. 257, 27 N. E. 756,
6 L. R. A. 610 and note, 15 Am. St.
Rep. 508.
3. Pike V. Brown, 7 Cush.
(Mass.) 133; Goodwin v. Gilbert,
9 Mass. 5^10; Felch v. Taylor, 13
Pick. (Mass.) 133; Huff v. Nicker-
son, 27 Me. 106; Hinsdale v. Hum-
phrey, 15 Conn. 431; Rawson v.
Copland, 2 Sand. Ch. (N. Y.) 251.
4. Burr v. Beers, 24 N. Y. 178, 80
Am. Dec. 327 and note; Lawrence
V. Fox, 20 N. Y. 268 ; Joslin v. Oar
Spring Co., 36 N. J. L. 141; Bas-
sett V Hughes, 43 Wis. 319; Lamb
V. Tucker, 42 Iowa, 118; Putney v.
Farnham, 27 Wis. 187, 9 Am. Rep.
459; Bristow v. Lane, 21 111. 194;
Bohanan v. Pope, 42 Me. 93 ; Brown
V. Ins. Co., 5 R. I. 394; Motley v.
Ins. Co., 29 Me. 337, 50 Am. Dec.
591; Carnegie v. Morrison, 2 Met.
(Mass.) 381; Brewer v. Dyer, 7
Cush. (Mass.) 337; Pingrey on
Mort. 1031, and cases cited; Com-
pare Mellen v. Whipple, 1 Gray
414
Ch. 14
CONTRACTUAL RELATIONS.
§§ 353,354
And a servant may sne the purchaser of his master's business
for back wages, wliich the purchaser assumes as part of the price
of the business.^
§ 354- Must be something more than a mere promise. —
According to the general rule it is not sufficient that the per-
formance of tlie promise may benefit a third person. It must
be made for his benefit, or at least such benefit must be the
direct result of performance and so within the contemplation of
the parties, and in addition, the grantor must have a legal in-
terest that the promise be performed in favor of the party
claiming performance.^
If one party promises to do something for the benefit of a
stranger to the contract, there being nothing but the promise,
and no consideration from the stranger, and no duty or obli-
gation to him on the part of the promisee, the third party cannot
recover upon such promise.^
Where a debt already exists from one person to another, a
promise by a third person to pay such debt, inures only to the
debtor, and the original creditor can bring no action against
the promisor to collect such debt.^
Where a promise is made by one person to another for the
benefit of a third, in the absence of any liability of the promisee
to such third person, the latter cannot enforce it,* and if a
(Mass.), 317; Crowell v. Currier,
27 N. J. Eq. 152.
5. Barnett v. Praff. 37 iSTeb. 349.
55 X. W. 1050.
1. Gornsey v. Rogers, 47 N. Y.
233. 7 Am. Rep. 440; Vrooman v.
Turner. 69 N. Y. 280. 25 Am. Rep.
195; Lorillard v. Clyde, 122 N. Y.
498, 2^ N. E. 017, lU L.- R. A. 113;
Burnherr v. Rau. 135 N. Y. 210.
32 N. E. 49 ; this limits Lawrence v.
Fox, 20 K Y. 268.
2. Jefferson v. Asoh, 53 Minn.
446. 39 Am. St. Rep. 618, 55 X. W.
604, 25 L. R. A. 5o7 and note. See.
also. Wheat v. Rice, 97 N. Y. 302 ;
Clark V. Howard, 74 Hun (N. Y.),
228. 26 X. Y. S. 62D. 56 X. Y. St.
322.
3. Bank v. Grand T^dge, 98 U.
S. 123.
4. Townsend v. xvockham, 143 N.
Y. 516. 58 X. E. 731; Coleman v.
Hiler, 85 Hun (N. Y.). 547, 33 N.
Y. S. 357 ; Linncman v. ^foross, 98
'SUch. 178, 57 X. W. 103, .39 Am. St.
Rep. 528 and note; Jackson Iron
Co. V. Concentration Co., 65 Fed.
Rep. 298, 12 C. C. A. 636, 31 U. S,
App. I.
415
§§ 354-356 opeejVtion of contracts. Cli. 14r
stranger incidentally receives a benefit from the promise he
cannot enforce it.^
§ 355- Acceptance by third person. — Where a party for
whose benefit a contract has been made is a minor, it is not
necessary that he should accept the same as the law puts in an
acceptance for him.^ If the third party is an adult, a subsequent
bringing of an action based on the contract is a sufficient ac-
ceptance of the same.^
The parties to the contract can mutually rescind it at any
time before acceptance by the third.^ After acceptance, tlie
rescission requires the concurrence of the third.*
§ 356. Contract for benefit of third person — Modification
of gereral rule. — In some of the States the general rule is
modified. Several States hold that a person who is not a party
to a simple contract, and from whom no consideration moves,
cannot sue on the contract, and consequently a promise made
by one person to another, for the benefit of a third person who is
a stranger to the consideration, will not support an action by
the latter.^ Hence, when the promise is to pay to another an
existing indebtedness of the promisee, upon a consideration
5. Crandall v. Payne, 154 111. 5. Mellen v. Whipple, 1 Gray
627, 39 N. E. 601; Burton v. Lar- (Mass.), 317; Millard v. Baldwin,
kin, 36 Kan. 246, 13 P. 398, 59 Am. 3 Gray (Mass.), 484; Field v. Craw-
Rep. 541; Second Nat. Bank v. ford, 6 Gray (Mass.), 116; Dow v.
Grand Lodge, 98 U. S. 123. Clark, 7 Gray (Mass.), 198; Col-
1. Copeland V. Summers, 138 Ind. burn v. Phillips, 13 Gray (Mass.),
219, 35 N. E. 514, 37 N. E. 971; 64; Flint v. Pierce, 99 Mass. 68, 96
Nolte V. Libbert, 34 Ind. 163; Am. Dee. 691; Exchange Bank v.
Pruitt V. Pruitt, 91 Ind. 595. Rice, 107 Mass. 37, 9 Am. Rep. 1 ;
2. Copeland v. Summers, 138 Rogers v. Union Stone Co., 130
Ind. 219, 35 N. E. 514, 37 N. E. Mass. 581, 39 Am. Rep. 478;
971. Wheeler v. Stewart, 94 Mich. 445,
3. Amonett v. Montague, 75 Mo. 54 N. W. 172; Pipp v. Reynolds,
43; Thompson v. Parker, 83 Ind. 20 Mich. 88; Edwards v. Clement,
96. 81 Mich. 515, 45 N. W. 1107; Wil-
4. Levistone v. Landreaux, 6 La. bur v. Wilbur, 17 R. I. 295, 21 A.
Ann. 26. See, also, Grant v. Beard, 497 ; Woodland v. Newhall, 31 Fed.
50 N. H. 129; Williams v. Butler, Rep. 434; Second Nat. Bank v.
35 111. .'544. Grand Lodge, 98 U. S. 123; Adams
416
Ch. 14 CONTBACTUAL RELATIONS. §§ 356, 357
moving wholly from the latter, such promise is for the benefit
of the promisee, the original debtor, and must be released or
enforced by him."
§ 357. Exceptions to the modified rule. — There are excep-
tions to this modified rule. Thus, where one person enters into
a contract with another to pay money to a third, or to deliver
some valuable thing, and such third party is the only party in-
terested in the payment or the delivery, he can release the prom-
isor from performance or compel performance by suit. And
among the exceptions are cases where the promise to pay the
debt of a third person rests upon the fact that money or prop-
erty is placed in the hands of the promisor for that particular
purpose. Also where one buys out a stock of goods of a trades-
man and undertakes to take the place, fill the contracts, and pay
the debts of his vendor.^ The right to sue by the third party
arises out of an independent contract created by law^ between
the promisor and the third person.^ And so where a contractor
agrees to abandon negotiations for the erection of a building
and to allow another to obtain the contract, there is a sufficient
consideration for the promise of such other party to pay a debt
owed by the contractor to a third party ; and such third party
can sue the party promising to pay the debt and legally collect
it'
V. Kuehn, 119 Pa. St. 76, 13 A. 184; 2. Adams v. Kuehn, 119 Pa. St.
Compare Carnegie v. Morrison, 2 76, 13 A. 184; Taylor v. Taylor, 20
Met. (Mass.) 381; Brewer v. 111. 650; Lewis v. Sawyer, 44 Me.
Dyer, 7 Cush. (Mass.) 337. 332; Carnegie v. Morrison, 2 Met.
6. Adams v. Kuehn, 119 Pa. St. (Mass.) 381; Putnam v. Field, 103
76, 13 A. 184; Blymere v. Boistle, Mass. 556; Wood v. Moriarity, 15
6 Watts (Pa.), 18S, 31 Am. Dec. R. I. 518, 9 A. 427; Hostetter v.
458. Hallinger, 117 Pa. St. 606, 12 A.
1. Mellen v. Whipple, 1 Gray 741; Grim v. Iron Co., 115 Pa. St.
(Mass.), 317; Frost v. Gage, 1 Allen 611, 8 A. 595: O'Neal v. Board, 27
(Mass.), 262; Putnam V. Field, 103 Md. 227; Hosford v. Kanouse, 45
Mass. 556; Exchange Bank v. Rice, Mich. 620. 8 N. 567: Keene v. Sage.
107 Mass. 43; Rogers v. Union 75 Me. 138.
Stone Co., 130 Mass. 581, 39 Am. 3. Moore v. Nat. Bank (Ala.).
Rep. 478. 36 So. 777.
417
§§ 358, 359 OPERATION OF CONTEACTS. Cll. 14
§ 358. Party to the consideration — Trusts. — Where one
buys out the stock of a tradesman and undertakes to take the
place and carry on the business, paying debts and filling con-
tracts of his vendor, and where one receives money or property
on the promise to pay or deliver to the third person, are case?
which create a condition in which the third person, although
not a party to the contract, may be fairly said to be a party to
the consideration on which it rests. In good conscience the
title to the money or the thing which is the consideration of the
promise passes to the beneficiary, and the promisor is turned
in effect into a trustee.^
But these cases hold that when a promise is made to and in
relief of one to whom the promise is made, upon a consideration
moving from him, no particular fund or means of payment be-
ing placed in the hands of the promisor out of which the pay-
ment is to be made, there is no trust arising in the promisor and
no title passing to the third person. The beneficiary is not an
original creditor who is a stranger to the contract and the con-
sideration, but the original debtor who is a party to both, and the
right of action is in him alone.^
But where the promise is so framed as to make the promisor
a trustee for such third person, the latter may enforce it.^
§ 359- Promissee as agent. — These cases establishing the
modified doctrine do not permit the person, for whose benefit a
promise is made to another person from whom the only con-
sideration moves, to maintain an action against the promisor,
unless either the latter has also made an express promise to the
plaintiff, or the promisee acts as the plaintiff's agent merely.^
Where the promisee is in fact acting as the agent of a third
1. Adams v. Kuehn, 119 Pa. St. Pye, 18 Ves. 140; Davis v. Coburn,
76, 13 A. 184. 128 Mass. 377; Chase v. Chapin,
2. Adams v. Kuehn, 119 Pa. St. 130 Mass. 128; Duncan v. Jandon,
76, 13 A. 184. 15 Wall. (U. S.) 165; Shaw v.
3. Preachers' Aid Soc. v. Eng- Spencer, 100 Mass. 321.
land, 106 111. 125; Hory V. Michael, 4. Exchange Bank v. Rice, 107
18 Md. 227. See, also. Ex parte Mass. 37, 9 Am. Rep. 1.
418
Ch. 14 CONTRACTUAL RELATIONS, §§ 359, 360
person, although that is unknown to the promisor, the prin-
cipal is the real party to the contract, and may therefore sue in
his own name on the promise made to his agent.^
§ 360. English doctrine. — The English doctrine is in accord
with the modified rule. So in England the rule does not permit
the person, for whose benefit a promise is made to another per-
son from whom the only consideration moves, to maintain an
action against the promisor, unless either the latter has also
made an express promise to the plaintiff, or the promisee acted
as the plaintiff's agent merely.^
In equity, in England, where money is payable to one person
for the benefit of another, the latter can claim under the con-
tract as if it had been with himself.'
: If the contract is so framed as to make one of the parties
trustee for a third person for whose benefit it is made, such
third person acquires rights by virtue of the trust.^ Where a
transfer of property is made with a declaration of trust in favor
of a third person, it must be distinguished from a mere cove-
nant to pay money to that person.®
But a mere contract between two parties, that one of them
shall pay money to a third, does not, as a rule, make the third
person a cestui que trust }^ In order to do this there must be
5. Sims V. Bond, o Barn. & Ad. 411; Price v. Easton, 4 Barn. & Ad.
389, 2 Nev. & Man. 608 ; Huntington 433 ; Tweddle v. Atkinson, 1 Best
V. I^ox, 7 Cush. (Mass.) 371; & S. 393.
Barry v. Page, 10 Gray (Mass.), 7. Touche v. Warehousinu' Co.. G
398; Hunter v. Giddings, 97 Mass. Ch. App. 671; Spiller v. Skating
41, 93 Am. Dec. 54; Ford v. Wil- Rink, 7 Ch. Div. 368; Compare
liams, 21 How. (U. S.) 287; John- Eley v. Life Assur. Co., 1 Exch.
son V. Welch, 42 W. Va. 18, 24 Div. 88; In re Empress Eng. Co.,
S. E. 585. See, also. Barber As- 16 Ch. Div. 125.
phalt Paving Co. v. Denver, 72 Fed. 8. Murray v. Flavell. 25 Ch. Div.
Rep. 336, 19 C. C. A. 139, 36 U. S. 89. See. also, Strong v. Bird, L. K.
App. 499. 18 Eq. 315.
6. Chitfc on Cont. 53 : Sims v. 9. Gregory v. Williams. 3 Moriv.
Bond, 5 Barn. & Ad. 38^, 2 Nev. & 582 ; Lamb v. Nice, 6 Mees. & Wei.
Man. 608. See, also, Lilly v. Hays, 467 ; Tomlinson v. Gill, Amb. 330.
5 Ad. & El. 548, 1 Nev. & Per. 26; 10. In re Rotheram Alum Co., 25
Walker v. Rostron, 9 Mees. & Wei.
419
§§ 360-362 OPERATION OF CONTEACTS. Ch. 14r
some undertaking by one of the contracting parties to stand to
the third person in the relation of trustee to the benficiary."
§ 361. Next of kin — Right to sue. — It was formerly held
in England that a child might sue for a promise made to his
parents for the former's benefit.^ But such doctrine has been
reversed by the English courts, so that the next of kin are now-
considered as mere volunteers and cannot therefore sue.^ And at
one time, in Massachusetts, a child might sue upon a promise
made for its benefit to his father.^ But this is not the law now
in this State; and so a child cannot recover, on the ground of
relationship, upon a promise made for his benefit to his father,
if the consideration for such promise moves wholly from the
father ;* and this seems to be the general doctrine.^
But the nearness of the relationship may be evidence that
the promise to the father was made to him acting in behalf of,
and as the agent of, the son, and therefore may be a promise to
the son ; but when it appears that the promise was not made to
the son, and that the consideration did not move from him, the
nearness of the relationship cannot change the general rule of
law.^
Still some of the States hold that a child can recover for a
promise made for his benefit to his parent, even if the consider-
ation moves wholly from his parent.^
§ 362. Covenants. — The general rule is extended, by many
courts, to sealed instruments. So where one person, for a val-
Ch. Div. 103 ; Eley v. Life Assur. change Bank v. Price, 107 Mass. 37,
Co., 1 Exch. Div. 20, 88. 9 Am. Rep. 1.
11. Murray v. Flavell, 25 Ch. 5. Hall v. Huntoon, 17 Vt. 244,
Div. 89. 251, 44 Am. Dec. 332; Ross v.
1. Dutton V. PooTe, 2 Lev. 210; Milne, 12 Leigh (Va.), 204, 223, 37
Bourne v. Mason, 1 Vent. 6. Am. Dec. 646; Wilbur v. Wilbur,
2. Tweddle v. Atkinson, 1 Best 17 R. I. 295, 21 A. 497.
& S. 393. 6. Marston v. Bigelow, 150 Mass.
3. Felton v. Dickinson, 10 Mass. 45, 22 N. E. 71, 5 L. R. A. 43.
287. 7. Benze v. Hiatt, 82 Ky. 666, 56
4. Marston v. Bigelow, 150 Mass. Am. Rep. 912. See, also, Clark v.
45, 22 N. E. 71, 5 L. R. A. 43; Ex- McFarland, 5 Dana (Ky.), 45.
420
Ch. 14 CONTRACTUAL RELATIONS. §§ 362, 363
liable consideration, engages with another, whether by simple
contract or by covenant under seal, to do some act for the bene-
fit of a third person, the latter may maintain an action against
the promisor for breach of the covenant.^ So where one person
contracts, whether with or without seal, with another for the
benefit of a third person, such third person may maintain an
action on the agreement.^
§ 363. Covenants — Another rule. — But another line of au-
thorities holds that a covenant cannot be sued on by the person
for whose benefit it is made, if he is not a party to the debt, but
the suit must be brought in the name of the person with whom
the covenant is made.^
In regard to contracts under seal, in many of the States, the
law has always been that only those who were parties to such
contracts could sue upon them.* And so a covenant cannot be
created to arise wholly in the future between the covenantor and
a party who at the time is unascertained, and from whom no
consideration is to move, and who is not in any way privy to any
present agreement by the covenantor.^
1. Bassett v. Hughes, 43 Wis. sumpsit in his own name, on the
319; McDowell v. Laev, 35 Wis. contract, whether the contract is
171; Gifford v. Corrigan, 117 N. Y. simple or under seal." — Webster v.
257, 22 N. E. 756, B L. R. A. 610 Fleming, 178 111. 140, 52 N. E. 975.
and note; 15 Am. St. Hep. 508; 3. Moore v. House, 64 111. 162;
Coster V. Pruyn, 43 N. Y. 399. Gautzert v. Hoge, 73 111. 30; Dean
2. Van Schaick v. Kailroad Co., v. Walker, 107 111. 540, 47 Am.
38 N. Y. 346; Rogers v. Gosnell, Rep. 467; Hinckley v. Fowler, 15
51 Mo. 466; Fitzgerald v. Baker, 85 Me. 285; Cocks v. Varney, 45 N. J.
Mo. 14; Ellis V. Harrison, 104 Mo. Eq. 72, 17 A. 108; Millard v. Bald-
270, 16 S. W. 198; State v. Rail- win, 3 Gray (Mass.), 484; Seigman
road Co., 125 Mo. 596, 28 S. W. v. Hoffacker, 57 Md. 321; Hen-
1074; Kimball v. Noyes, 17 Wis. dricks v. Lindsay, 93 U. S. 143.
695; Webster v. Fleming, 178 111. 4. Sanders v. Filly, 12 Pick.
140, 52 N. E. 975, affirming Dean (Mass.) 554; Johnson v. Foster, 12
V. Walker, 107 111. 540, 47 Am. Rep. Met. (Mass.) 167; Northampton v.
467 and note, and overruling Harms Elwell, 4 Gray (Mass.), 81; Flynn
V. McCormick, 132 111. 104, 22 N. E. v. Ins. Co., 115 Mass. 449; Flynn
511. In Illinois, under the statute, v. Benefit Asso., 152 Mass. 288, 25
"a third party, for whose benefit a N. E. 716.
contract is made, may bring as- 5. Saunders v. Saunders, 154
421
§§ 364, 365 OPERATION OF CONTRACTS. Ch. 14r
§ 364. Who may bring suit on simple contracts. — Where a
promise, is made to one person for the benefit of another it is
generally held that the suit may be brought either by the third
party or by the promisee.^ And the promisee may maintain
an action against the promisor without first paying the debt him-
self. The measure of damages in such case is the amount of the
debt agreed to be paid.^
In trust, the suit at law is in the name of the trustee;^ in
equity, oftener in the name of the cestui que trust, sometimes
the trustee joining.*
Closely allied to this rule where a beneficiary may sue, is the
right of a real estate broker to sue a purchaser for his commis-
sion, when the latter has refused to complete the deal. Thus,
when the sale has been made and the purchaser refuses to take
the property, the purchaser is liable to the broker for the dam-
ages thereby suffered by the broker, though he had agreed to
look to the seller for his commission.^ And so one who, by mis-
take, sells to a person a poisonous drug for a harmless medicine
is liable to a third person, who without negligence takes the drug
for medicine, for damages resulting to him.®
§ 365. Description of the debts. — It is not necessary to
specify the debts which the promisor assumes and agrees to pay.
It is enough to speak of them as a class, and the particular debt
in question may be shown to be one which falls within that
class.'' So if a person makes an agreement with a party by which
Mass. 337, 28 N. E. 270 . As to the 3. Treat v. Stanton, 14 Conn.
Code States, see Bliss on Code PI. 445.
241. 4. Dunn v. Seymour, 3 Stockt.
1. Steene V. Aylesworth, 18 Conn. (N. J.) 220.
244; Bell v. Chaplain, Hard. 321; 5. Livermore v. Crane, 26 Wash.
Button V. Poole, 1 Vent. 318, 2 Lev. 529, 67 P. 221, 57 L. R. A. 401.
210; Garnett v. Handley, 4 Barn. 6. Peters v. Johnson, 50 W. Va.
& Cr. 664. 644, 41 S. E. 190, 57 L. R. A. 428,
2. Merriam v. Lumber Co., 23 88 Am. St. Rep. 909 and note.
Minn. 314; In re Negus, 7 Wend. 7. Schmidt v. Glade, 126 111. 485,
(N. Y.) 499; Wicker v. Hoppock, 6 18 N. E. 762; Schuster v. Railroad
Wall. (U. S. 94; Seigman v. Hof- Co., 60 Mo. 290; State v. Railroad
facker, 57 Md. 321. Co., 125 Mo. 596, 28 S. W. 1074;
422
Ch. 14 CONTRACTUAL KELATIONS. §§ 805-367
he buys of tho other party credits and assumes to pay all his
debts, a creditor of tho second, part}' may recover his debt of
such first party.*
§ 366. Agreement to save harmless. — If the agreement or
covenant is simply one to indemnify and save harmless one of
the parties to the contract against the claims of a third person,
then such third person cannot sue upon the agreement or cove-
nant. Such a contract under seal or not is not a contract for the
benefit of the third person within the meaning of the rule.^ Thus
where two railroad companies enter into an agreement whereby
one agrees to save harmless the other from all its obligations,
and to pay and surrender them paid as fast as they were ob-
tained, it does not give a creditor a right to sue the first for the
debts of the second.^"
§ 367. Many promisors — Suit against. — When the prom-
isors are very numerous it is often impracticable to bring them
before the court. In chancery, under such circumstances, as
there is privity of interest, the court will allow a bill to be
brought by some of the parties in behalf of themselves and all
the others, taking care that there shall hv a due representation of
all substantial interests before the court. ^
But at law this rule has not been adopted. Thus where an
Dean v. Walker, 107 111. 540, 47 304, 24 S. W. 784, 23 L. R. A. 146
Am. Rep. 467 and note; Redels- and note, 41 Am. St. Rep. 654;
heimer v. Miller, 107 Ind. 486, 8 N. State v. Railroad Co., 125 Mo. 596,
E. 447; Cross v. Trusdale, 28 Ind. 28 S. W. 1074.
44; Kingsbury v. Earle, 27 Kans. 10. State v. Railroad Co., 12.5 Mo.
141; Deianey v. Anderson, 54 Ga. 596, 28 S. W. 1074.
586; Railroad Co. v. Hopkins, 18 1. Story on Eq. PI. 07: Taylor
Kans. 494; Raum v. Kaltwasser, 4 v. Salmon, 4 Mylne & Cr. 134; Wal-
Mo. App. 573 ; AntBony v. Heman, worth v. Holt, 4 Mylne & Cr. 619
14 Kans. 494. Small v. Atwood, 1 Younge, 407
8. Snell V. Ives, 85 111. 279. Chancey v. May, Prec. in Ch. 592
9. Kansas City v. O'Connell, 99 Lilly v. Tobbein. 103 Mo. 477, 15
Mo. 357, 12 S. W. 791; Waller v. S. W. 618, 23 Am. St. Rep. 887;
Goble, 66 Iowa, 113, 23 X. W. 290; Piatt v. Colvin, 50 Ohio St. 703,
Houseman v. Water Co.. 119 Mo. 36 N. E. 735.
423
§367 OPERATION OF CONTEAOTS. Oil. 14:
■unincorporated society has made a contract, and stipulated that
the right of action should be vested in a manager or agent, the
courts will not sustain such agreement.^
Many of the States have enacted that when the parties are
very numerous and it is impracticable to bring them all before
the court, one or more may sue for the benefit of all ; and this
applies to legal as well as to equitable actions.^
AETICLE III.
Joint and Several Contracts.
Section 368. Joint Contracts.
369. Disability of One Joint Promisor.
370. Judgment Against Joint Debtors.
371. Survivorship of Joint Liability.
372. In Equity — Survivorship of Joint Liability.
373. Under the Codes.
374. Surety.
375. Release by Act of Creditor.
376. Covenant Not to Sue.
377. Joint Creditors or Obligees.
378. Release with Provision.
379. Release Should be Under Seal.
380. Survivorship of Joint Creditors.
381. Release by Creditor.
382. Several Interests.
383. Subscriptions to Establish Business Enterprise.
384. Revocation.
385. Validity of Subscription Contracts.
386. Joint and Several Contracts.
387. Release of Joint and Several Promisors by Law.
388. Contribution.
389. In What Property Payment May Be Made.
390. Right to Receive Contribution.
391. Insolvency of Co-sureties.
2. Gray v. Pearson, L. R. 5 C. P. Jones, 97 N. Car. 121, 1 S. E. 692;
568. Gieske v. Anderson, 77 Cal. 247, 19
3. Piatt V. Colvin, 50 Ohio St. P. 421; Alexander v. Gish, 88 Ky.
703, 36 N. E. 735; Bronson v. Ins. 13, 9 S. W. 801; Gibson v. Trust
Co., 85 N. Car. 414; Thames v. Co., 58 Hun, 443, 12 N. Y. S. 444.
424
Ch. 14 CONTRACTUAL RET.ATIONS. § 368
Section 392. Must the Principal Debtor Be Insolvent.
393. Sureties Discharged by Act of rromisce.
394. In Case of Tort.
§ 3^8. Joint contracts. — A joint contract is one in which
the contractors are jointly bound to perform the promise or ob-
ligation therein contained, or entitled to receive the benefit of
such promise or obligation. Thev must contract jointly as one
party. Then they are jointly and not severally liable, and
should all be sued if within the jurisdiction of the court.^
It is a general rule in ex contractu that obligations to the non-
joinder of a defendant can be taken only by plea in abatement,
thereby giving the plaintiff a better writ, by therein disclosing
the names of those who ought to be joined.^
But to this rule there is an exception, that if it appears from
the face of the declaration or other pleading on the part of the
plaintiff, that a person not made a defendant was a joint con-
tractor with those who are defendants in the suit, there being
no averment of the death of such person, then such non-joinder
is good ground for demurrer, as well as abatement.^ And if one
of the joint promisors agrees with the other promisor that he
will pay the debt himself, it does not give the promisee the right
to sue such promisor alone.^ And at common law, in suing a
partnership, all the partners must be made parties, as they were
considered joint promisors ; but statutes may change this rule.^
If a joint promisor, who is sued alone, pleads to the merits,
then he has lost his right to object and show that he is only one
1. Meyers v. Estes, 164 Mass. Dee. 338; Smith v. Miller, 40 N. J.
457, 41 N. E. 683, 32 L. R. A. 283; L. 521, 13 A. 39; Henderson v.
Forst V. Leonard, 112 Ala. 296. 20 Hammond. 19 Ala. 340; Bledsoe v.
So. 587 ; Field v. Runk, 22 N. J. L. Irvin, 35 Ind. 293.
525; Eller v. Lacy, 137 Ind. 436, 3. Harwood v. Roberta. 5 Me.
36 N. E. 1088; Murphy v. Weil, 92 442; Richmond v. Toothaker, 69
Wis. 467, 66 N. W. 532. Me. 455; McGregor v. Baleh. 17 Vt
2. Harwood v. Roberts, 5 Me. 567.
442; Reid v. Wilson. 39 Me. 586
Richmond v. Toothaker, 69 ^le. 455
Potter V. McCay, 5B Pa. St. 458
4. Lodge V. Dicas, 3 Barn. & Aid.
Gil.
5. Wibaux v. Live Stock Co., 9
Nash V. Skinner, 12 Vt. 219, 36 Am. INIont. 154.
425
§§ 368-370 OPERATION OF CONTRACTS. Cll. 14
of joint contractors,^ and will therefore become liable for the
whole debt;^ in this way he becomes severally liable.^ But
parties to a contract may not, without statutory authority, des-
ignate a person to be sued for its breach, who is nowise liable
upon its breach.^
§ 369. Disability of one joint promisor. — When joint debt-
ors execute a joint note and one is not bound by reason of some
disability, the other remains bound especially when the facts
which constitute the disability are known to the other.^°
Thus, in those States where a married woman is not liable
upon a promissory note made by her and her husband, payable
to the latter's order and indorsed by him, the husband is liable
as maker, though his wife will be discharged. "^^
§ 370- Judgment against joint debtors. — A plaintiff when he
has received a judgment against joint promisors, may take out
an execution against one of them only and have only one satis-
faction, thus making any one of them responsible for the whole
debt.^ The entire cause of action is merged in such judgment,
and any action is barred against any other joint debtor.^
The common law rule in England and in the United States is
that a judgment against one upon a joint contract of several
6. Whelpale's Case, 5 Co. 119: 9. Knorr v. Bates, 35 N. Y. S.
Eice V. Shute, 5 Burr. 2613. 1060, 14 Misc. 501, 70 N. Y. St.
7. Nash V. Skinner, 12 Vt. 219, 686.
36 Am. Dee. 338; Hieks v. Cram, 17 10. Woodward v. Newhall, 1 Pirk.
Vt.449;Ricev. Shute, 5 Burr. 2611; (Mass.) 500; Tuttle v. Cooper, 10
Richards v. Heather, I Barn. & Aid. Pick. (Mass.) 281; Yale v. Whee-
29; Abbot v. Smith, 2 W. Bl. 947; lock, 109 Mass. 502.
King V. Hoar, 13 Mees. & Wei. 494. 11. Browning v. Carson, 163 Mass.
8. Beeler v. Bank, 34 Neb. 348, 255, 39 N. E. 1037.
51 N. W. 857; Maurer v. Midway, 1. Bird v. Randall, 1 W. Bl. 387,
25 Neb. 575, 41 N. W. 395; Davis 388.
V. Chouteau, 32 Minn. 548, 21 N. 2. Mason v. Eldred, 6 Wall. (U.
748; Sandwich Manuf. Co. v. Her- S.)231, overruling, in effect, Sheehy
riott, 37 Minn. 214. 33 N. W. 782; v. Mandeville, 6 Cranch (U. S.),
Willson v. McCormick, 86 Va. 995, 254, and explaining Rice v. Shute,
11 S. E. 976; Elder v. Tliompson, 5 Burr. 2511.
13 Gray (Mass.), 91.
426
Ch. 14 CONTRACTUAX, RELATIONS. §§ 370, 371
persons, bars an action against the others, though the latter were
dormant partners of the defendant in the original action, and
this fact was unknown to the plaintiff when the action was com-
menced, when the contract is joint, and not joint and several,
the entire cause of action is merged in the judgment. The joint
liability of the parties not sued with those against whom the
judgment is recovered, being extinguished, their entire liability
is gone. They cannot be sued separately for they have incurred
no several obligation ; they cannot be sued jointly with the
others, because judgment has been already recovered against
the latter, who would otherwise be subjected to two suits for the
same cause.^
If a judgment is against one of several joint promisors, the
claim against the others is extinguished, at common law.* On
the same principle, if one of the partnership gives his individual
bond for a simple contract debt of the firm, the claim against
the other partners is discharged.^ And so where an oral contract
has been merged in a specialty, the former is merged and dis-
charged.®
§ 371. Survivorship of joint liability. — The general rule is
that when one of joint promisors dies, a joint suit may be prose-
cuted against all of the surviving obligors or promisors, and
3. Mason v. Eldred, 6 Wall. (U. 379, 80 Am. Dec. 90, for applica-
S.) 231; Robertson v. Smitli, 18 tions of such statutes.
Johns, (^r. Y.) 459, 9 Am. Dec. 227: 4. Robertson v. Smith. 18 Johns.
Ward V. Johnson, 13 Mass. 148; (N. Y.) 459, 9 Am. Dec. 227; Mc-
Wann v. McNulty, 2 Gil. (111.) Master v. Vernon, 3 Duer (N. Y.),
359, 43 Am. Dec. 58; Smith v. 249; Clinton Bank v. Hart, 5 Ohio
Black, 9 Serg. & R. IPa.) 142, 11 St. 33; Ward v. Johnson, 13 Mass.
Am. Dee. 686; King v. Hoar, 13 148; Smith v. Black, 9 Serg. & R.
Mees. & Wei. 493; Trafton v. (Pa.) 142, 11 Am. Dec. 686; Can-
United States, 3 Story, C. C. 651. dee v. Smith, 93 N. Y. 349: Ben-
in most of the States the riile of son v. Fame, 2 Hilton (N". Y.),
the common law is changed with 552.
respect to judgments upon demands 5. Banorgee v. Henly, 5 Mass. 11,
of joint debtors, when some only of 4 Am. Dec. 17: Tom v. Goodrich, 2
the parties are served with process. Johns. (N. Y.) 213.
See Oakley v. Aspinwall, 4 N. Y. 6. Curson v. Monteiro, 2 Johns.
513; Bonesteel v. Todd, 9 Mich. (X. Y.) 308.
427
§§ 371, 372 OPEBATION OF CONTEACTS. Ch. 14
the personal representatives of the deceased promisor or obligor
must not be joined, since the same judgment could not be ren-
dered against the surviving debtors and the executor or admin-
istrator of the deceased obligor or promisor.^
The death of one joint party transmits both his interest and
his burdens., not to his administrator, but to his survivors. This
rule extends to ordinary joint contractors and to partners.^
But when there remains no survivor, then all goes to the ad-
ministrator of the one v^ho died last.^ This is the common
law rule, which has been changed by statute, and the court of
equity will sometimes take jurisdiction to charge the estate of
the deceased joint debtor.
§ 372. In Equity — Survivorship of joint liability. — "Where
the obligators are all principal debtors, or receive some benefit
from the joint obligation, courts of equity have taken jurisdic-
tion in the case of death of one of the obligors, and enforced
the obligation against his representatives.. This is done upon
the ground that in conscience the estate of the deceased obligor
ought to respond to the obligation ; and they will give relief in
all cases where, in consequence of a primary liability on the
part of the deceased obligor, or of a benefit received by him
from the joint obligation, it is morally and equitably just that
his estate should be made liable, and unconscionably that it
should be discharged.* In cases of partnership, courts of equity
1. Cummings v. People, 50 111. 393; Walker v. Maxwell, 1 Mass.
132; 1 Chitty on PI. 50; Ballance V. 104; Smith v. Franklin, 1 MaS3.
Samuel, 3 Scam. (111.) 380; Eg- 480; Hedderly v. Downs, 31 Minn,
gleston V. Buck, 31 111. 254; Stevens 183, 17 N. 274; Daley v. Ericsson,
V. Catlin, 152 111. 56, 37 N. E. 1023; 45 N. Y. 786; Calder v. Rutherford,
Dicey on Parties, 238 ; Richards v. 3 Brod. & B. 302 ; Jell v. Douglass,
Heather, 1 Barn. & Aid. 29 ; Gere 4 Barn. & Aid. 374.
V. Clark, 6 Hill (N. Y.), 350; Clark 3. Raus v. Yates. Yelv. 177;
V. Parrish, 1 BibB (Ky.), 547; Stowell v. Drake, 23 N. J. L. 310;
Foster V. Hooper, 2 Mass. 572; At- G«re v. Clark, 6 Hill (N. Y.),
well V. Milton, 4 Hen. & M. (Va.) 350.
253. 4. Gere v. Clark, 6 Hill (N. Y.),
2. Haskinson v. Eliot, 62 Pa. St. 350; Richardson v. Draper, 87 N.
Y. 337.
428
Ch. 14r CONTltACTUAL RELATIONS. §§ 372, 373
treat joint contracts as several and thus transmit a right or obli-
gation to the administrator of the deceased party.^
If, through fraud, ignorance or mistake, the joint obligation
does not express the meaning of the parties, it will be reformed
so as to conform to it. This has been done where there is a
previous equity which gives the obligee the right to a secured
indemnity from each of the obligors, as in the case of money
lent to both of them. There a court of equity will enforce the
obligation against the representatives of the deceased obligor,
although the bond be joint and not several, on the ground that
the lending to both creates a moral obligation in both to pay,
and that the reasonable presumption is the parties intended
tlieir contract to be joint and several, but through fraud, ignor-
ance, mistake, or want of skill, failed to accomplish their ob-
ject'
§ 373- Under the codes. — The English courts no longer fol-
low the old common law rule, making the solvent surviving joint
obligor alone liable to the obligee in the joint contract. They
permit the action to be brought at law against the administrator
in the first instance, whether the survivor be solvent or not. Sev-
eral of the American States hold with the English courts.^
However, some of the code States deny this procedure, and the
suit must be brought in equity, if it can be brought at all.^
The judgment against the administrator should be that he
pay in due course of administration the amount due.^ If a
5. Sumner v. Powell. 2 Meriv. Humph. (Tenn.) 110; Williams v.
30; Beresford v. Browning, 1 Cli. Bradley, 5 Ohio Cir. Ct. 114. See,
D. 30, Story's Eq. 162-164. also, Bachelder v. Fiske, 17 Mass.
6. United States v. Price, 9 How. 464.
(U. S.) 90. 2. Voorhis v. Child, 17 N. Y.
1. Pom. Rem. and Kem. Riirhti, 354; Sherman v. Kreul, 42 Wis.
302-304: Bliss Code PI. 105, 106; 33.
Braxton v. State, 25 Ind. 82; Bur- 3. Rice v. Inskeep, 34 Cal. 224;
gojne V. Ins. Co., 5 Ohio St. 586; Seneseal v. Bolton. 7 N. Mex. 351,
Trimmer v. Thompson, 10 S. Car. 34 P. 446; Fisher v. Hopkins, 4
164; Fisher v. Hopkins, 4 Wyo. 379, Wyo. 379. 34 P. 899.
34 P. 899: Taylor v. Taylor, 5
429
§§ 373-3Y5 OPEKATION OF CONTRACTS. Cll. 14
judgment is entered against the administrator de bonis propriis
it is error/ because tlie executor or administrator will not be
personally liable; the judgment should be de bonis testatoris^
or in his representative capacity.
§ 374. Surety. — In case of joint obligation of sureties, if one
of the sureties dies his representatives are, at common law,
discharged, provided he receives no benefit whatever from the
joint obligation, and the survivors alone can be sued f and the
estate of the deceased is absolutely discharged both at law and in
equity.'
The surety's duty is measured alone by the legal force of the
bond, and he is under no moral obligation whatever to pay the
obligee, independent of his covenant, and consequently there is
nothing on which to found an equity for the interposition of a
court of chancery.^
But the death of a surety does not terminate his liability,
where his contract is a continuing one; a continuing suretyship
is not terminated by the death of the surety, but his estate is
liable.^
§ 375. Release by act of creditor. — It is ordinarily true that
a release of one of joint obligees is a release of all,^ although
4. Smith V. Chapman, 93 U. S. 26 Am. Rep. 528; Waters v. Riley,
41. 2 Har. & G. (Md.) 305, 18 Am.
5. Smith V. Chapman, 93 U. S. Dee. 302; Compare Susong v.
41. Vaiden, 10 S. Car. 217, 30 Am. Rep.
6. Richardson v. Draper, 87 N. Y. 50 and note.
337. 8. Pickersgill v. Lahens, 15 Wall.
7. Towers v. Moore, 2 Vern. 98; (U. S.) 140; Sumner v. Powell, 2
Simpson v. Vaughan, 2 Atk. 31; Meriv. 30, 1 Tur. & Rus. 423;
Bradley v. Burwell, 3 Denio (N. Weaver v. Shy rock, 6 Serg. & R.
Y. ), Gl; Richter v. Pappenhausen, (Pa.) 262; Richardson v. Horton, 6
42 N. Y. 393 ; Pickersgill v. Lahens, Beav. 185 ; Rawstone v. Parr, 3
15 Wall. (U. S.) 140; Getty v. Russ. 539.
Binsse, 49 N. Y. 388, 10 Am. Dec. 9. Pingrey's Surety, and Guar.,
379; Risley v. Brown, 67 N. Y. 160; sees. 84, 85, 201.
United States v. Price, 9 How. (U. 1. Brodeck v. Farnum, 11 Wash.
S.) 90; Davis v. Van Buren, 72 N. 565, 40 P. 189; Maslin v. Hiett, 37
Y. 587; Wood v. Fisk, 63 N. Y. 245, W. Va. 15, 16 S. E. 437; Tucker-
430'
Ch. 14
CONTRACTUAL RELATIONS.
§§ 375,376
he may not, in fact, be liable for any of the obligation." And
a payment made by one of several joint debtors inures to the
benefit of all the debtors, as a credit upon the debt.^
But where a release is given on a general settlement with a
joint debtor without any reference to the joint debt, it is no
bar to the plaintiff to recover the share due from the other
debtor, notwithstanding such settlement.*
The plaintiff must sue all the joint debtors, if of full age ^ and
alive,^ And if the plaintiff does not sue all, his suit, if properly
defended, will not prevail.'
In many States this matter has been regulated by statute,
which must be consulted to know the law in this respect.
§ 376. Covenant not to sue. — If a promise is made not to
6ue a debtor, if he be a sole debtor, it will release the debt;
that is, if the covenant is perpetual, it will bar the covenantor's
suit where there are no joint debtors f but, if he be one of two
or more joint debtors, such covenant cannot be set up in bar of
a suit.^ Such a covenant is not properly a release, and cannot
be pleaded in bar to an action.^"
mail V. Newhall, 17 Mass. 581;
Halo V. Spaiilding, 145 Mass. 482,
14 N. E. 534, 1 Am. St. Rep. 475;
Houston V. Darling, 16 Me. 413;
Hall V. Gray, 54 Me. 230; AUin v.
Shadburne, 1 Dana (Ky.), 68, 25
Am. Dec. 127 and note; Newcomb v.
Raynor, 21 Wend. (N. Y.) 108, 34
Am. Dec. 210; Stone v. Dickinson,
5 Allen (Mass.), 29, 81 Am. Dec.
727; Compare State v. Watson, 44
Mo. 305.
2. Leddy v. Barney, 139 Mass.
394, 2 N. E. 107.
3. Crafts v. Sweeney, 18 R. I.
730, 30 A. 658. See, also. Hale v.
Spaulding, 145 Mass. 482, 14 N. E.
534, 1 Am. St. Rep. 475; Clapp v.
Pawtucket Inst., 15 R. I. 489, 8 A.
697, 2 Am. St. Rep. 915.
4. Cutts V. Gordon, 13 Me. 474,
29 Am. Dec. 520.
5. Livingston v. Tremper, 11
Johns. (N. Y.) 101.
6. Douglass V. Chapin, 26 Conn.
76; Bragg v. Wetzel, 5 Blackf.
(Ind.) 95.
7. Livingston v. Tremper, 11
Johns. (N. Y.) 101; Tuttle v.
Cooper, 10 Pick. (Mass.) 281;
Compare Bergman v. McGuire, 32
Ark. 733. See Pingrey's Surety,
and Guart. sec. 91.
8. Ford V. Beech. 11 Q. B. 852;
Cuyler v. Cuyler, 2 Johns. (N. Y.)
186.
9. Shed V. Pierce, 17 Mass. 623.
10. Winston v. Dalby, 64 N. Car.
299; Dean v. Newhall, 8 Term R.
168. '
431
§§ 376, 377 OPERATION OF CONTRACTS. Cll. 14:
A covenant not to sue one of several obligors is not pleadable
in bar to an action on the bond ; it does not amount to a release,
but is a covenant only, and the covenantee is put to his crossr
action to recover the damages which a breach may occasion him.
As an exception to this rule, a sole obligor may plead such
covenant in bar, to avoid circuity of action ; for he should]
recover for breach of the covenant precisely the same damage
that he had suffered by suit on the bond.^^
§ 377- Joint creditors or obligees. — Joint contractors must
all sue upon their joint contract.^ So, if the promise on which
a suit is brought is made jointly to two or more persons, they
must all, if living, join in the action, or they will be non-suited
on the trial by a proper defense.^ So one joint obligee in a
joint contract cannot sue upon the contract alone. But payment
in full by obligor to one of the joint obligees discharges the
obligation.^
And so, a release of any one of several promisees is good as
against all.^ Thus, where one partner signs and seals a compo-
sition deed it bars the partnership's claim.^ But a mere coven-
ant not to sue is without effect except as foundation for a coun-
ter action.^
11. Lacy V. Kinoston, 1 Ld. Ray. McGilvery v. Moorhead, 3 Cal. 267.
688; Hosack v. Eogers, 8 Paige (N. 3. Henry v. Township, 70 Mo.
Y.), 237; Goodnow v. Smith, 18 500; Gark v. Cable, 21 Mo. 223, 64
Pick. (Mass.) 414, 29 Am. Dec. Am. Dec. 234 and note ; Slingersby's
600; Couch v. Mills, 21 Wend. (N. Case, 5 Coke, 19; Morrow v. Starke,
Y.) 424; Solly v. Forbes, 2 Brod. & 4 J. J. Marsh. (Ky.) 367.
B. 38. 4. Wild v. Williams, 6 Mees. &
1. Angus V. Robinson, 59 Vt. Wei. 490; Wilkinson v. Lindo, 7
585, 8 A. 497, 59 Am. Rep. 758. Mees. & Wei. 81 ; Myrick v. Dame,
2. Gould V. Gould, 6 Wend. (N. 9 Cush. (liass.) 248; Eastman v.
Y.) 263; Wright v. Post, 3 Conn. Wright, 6 Pick. (Mass.) 316.
142; Hewes v. Bayley, 20 Pick. 5. Wells v. Evans, 20 Wend. (N.
(Mass.) 96; Archer v. Bogue, 3 Y.) 251; Bruen v. Marquand, 17
Scam, (ni.) 526 ; Wilson V. Wallace, Johns. (jST. Y.) 58; Morse v. Bel-
8 Serg. & R. (Pa.) 53; Pease v. lows, 7 N. H. 549; Smith v. Stone,
Hirst, 10 Barn. & Cr. 122; Hatsall 4 Gill & J. (Md.) 310.
V. Griffith, 2 Cromp. & M. 679; 6. Walmesley v. Cooper, 11 Ad.
Sweigart v. Berk, 8 Serg, & R. 308; & El. 216; Clayton v. Kynaston, 2
432
Cll. 14 CONTBACTUAL. RELATIONS. §§ 377, 378
All must sue. Even a disclaimer by one of the obligees, un-
less consented to by the obligor, will not authorize the other
joint creditors to sue alone.^
When there is a misjoinder of plaintiffs, the defendant may
plead in abatement. If the defect appears upon the record, it
may be objected to by demurrer, or by motion in arrest of judg-
ment, or by error.*
If the defect does not appear of record, the proof would not
correspond to the pleadings, and this would prove fatal, unless
the pleadings were amended.^
The principle that joint obligees or creditors must all sue
upon their joint contract, is not varied by the fact that one of
them has been settled with, unless all the parties agree to the
severance of the joint interest, and the obligor promises to pay
each his several share, and the suit is based upon the new prom-
ise. Then each may sue therefor, the suit being based upon the
promise to pay each severally, and not on the original joint
promise.^"
§ 378. Release with provision, — Where a release is given to
one of joint obligors, which operates as an absolute discharge of
suchi obligor, it w'ill also operate to release his co-obligors, not-
withstanding the instrument contains an express provision that
such co-obligors shall not thereby be released.^ But if the in-
strument provides that if suit is brought against the obligor, the
instrument shall become a good bar thereto and operate as an
Salk. 573; Couch v. Mills, 21 Wend. Bos. & Pul. 67; Balcer v. Jewell, 6
(N. Y.) 424; Walker v. McCulloch. Mass. 460, 4 Am. Dec. 162; Petrie
4 Me. 421; McClellan v. Bank, 24 v. Berry, 3 Barn. & C. 353; Pugh
Me. 566; Rowley v. Stoddard, 7 v. Stringfield, 3 C. B., N. S. 2;
Johns. (N. Y.) 207. Davis v. Chouteau. 32 :Minn. 548,
7. Angus V. Robinson, 59 Vt. 21 N. 748.
585, 8 A. 497. 59 Am. Rep. 758; 9. Chanter v. Leese, 4 Jlces. &
Wetherell v. Langston, 1 Exch. Wei. 295.
634. 10. Angus v. Robinson, 59 Vt.
8. Wiggin V. Cumings. 8 Allen 585, 8 A. 497. 59 Am. Rep. 758.
(Mass.), 3a3; Beach v. Hotchkiss. 1. Parnielee v. Lawrence, 44 111.
2 Conn, 697; Scott v. Godwin, 1 405.
433
§§ 378, 379 OPEKATION OF CONTIiii.CTS. Cll. 14
absolute release and acquittance on the bond as to him, and
which declares that it was not intended thereby to release or
discharge the other sureties, it is a covenant not to sue, and not
a release, and cannot be set up by the defendant ;^ but it gives a
right of action for every violation of the terms of the provision.
§ 379- Release should be under seal. — An agreement not un-
der seal to discharge a particular party, or an agreement not to
sue or the like, will not have that effect because it does not ex-
tinguish it.^ And so, a release not under seal of one joint
debtor by a creditor in consideration of a payment of part of
the debt, is no discharge of the residue.^ The reason is because
it cannot be inferred from such a covenant it was the intention
of the parties to discharge the debt.
But a technical release to one of several joint debtors, being
under seal, may be pleaded in bar to a suit.^
Though this rule rests upon reasons technical rather than
satisfactory, it has been adopted and is supported by the great
weight of authority.^ But it has been said that this rule has be-
come so overburdened with exceptions and nice distinctions, and
equivocal approbations by the numerous cases decided, that it is
sometimes difficult to ascertain what the law is as applicable to a
particular case,^
But the rule is, that where one of several joint debtors had
been discharged from his share of the debt by an instrument
2. Bowne v. Bank, 45 N. J. L. man, 12 Gray (Mass.), 341; Drink-
360; Dean v. Newhall, 8 Term R. water v. Jordan, 46 Me. 432;
168; Thompson v. Lock, 3 C. B. Walker v. McCullocli, 4 Me. 421;
540; Crane v. Ailing, 15 N. J. L. Catskill v. Messenger, 9 Cow. (N.
423; Solly v. Forbes, 2 Brod. & B. Y.) 37; Brown v. Marsh, 7 Vt.
38; Williams v. Hitchings, 10 Lea 327; Shed v. Prince, 17 Mass. 623.
(Tenn.), 326; Nortli v. Wakefield, 3. Drinkwater v. Jordan, 46 Me.
13 Q. B. 536; Price v. Barker, 4 El. 432; Line v. Nelson, SB N. J. L.
& B. 760. 358.
1. Shaw V. Pratt, 22 Pick. 4. Daniels v. Hafch, 21 N. J. L.
(Mass.) 305; Pond v. Williams, 1 393, 47 Am. Dec. 169.
Gray (Mass.), 630. 5. Morris Canal v. Van Vorst, 21
2. Bemis v. Hoseley, 16 Gray N. J. L. 119.
(Mass.), 63; Harriman v. Harri-
434
Ch. 14 CONTRACTUAL RELATIONS. §§ 379-381
not under seal, even though made upon adequate consideration,
such discharge constitutes no defense to any of them, in an
action against them f and the remedy of the discharged debtor,
if he should be afterwards molested on account of the debt, will
be by an appropriate action founded upon a breach of the con-
tract of discharge.^
Of course a release by deed must be under seal, except in those
States where the private seal is abolished, as a seal at common
law imports a consideration. But there may be equally valid
releases without any sealed instrument, as those by operation
of law, or releases made in States where the private seal is
abolished, or releases made by the parties upon good and val-
uable consideration, which are effectual and valid.*
§ 380. Survivorship of joint creditors. — When one of the
joint creditors dies the survivors take the whole interest, and
they alone can sue. Thus, upon the death of one of the partners
of a firm, the firm is dissolved, and the rights to recover all
debts and choses in action, in his own name, survives to the sur-
viving partner, to enable him to collect all dues, but no general
and ultimate right of property by survivorship arises, as in cases
of joint tenancy, at common law\^ The representatives of the
deceased creditor cannot sue for the debts, as this right belongs
to the survivors.^
§ 381. Release by creditor. — One of the several creditors
may release the debt and give acquittance to all the debtors.^
6. Harrison v. Close, 2 Johns. 3 Allen (Mass.), 47i; Goss v. EUi-
(N. Y.) 447; Rowley v. Stoddard, son, 136 Mass. 503.
7 Johns. (K Y.) 207; Frink v. 1. Burnside v. INIerrick, 4 Met.
Green, 5 Barb. (N. Y.) 455; Shaw (Mass.) 537; Murphy v. Bank, 5
V. Pratt, 22 Pick. (Mass.) 305; Ala. 421.
Crane v. Ailing, 15 N. J. L. 423. 2. Peters v. Davis, 7 Mass. 257 ;
7. JfcAllister v. Sprague, 34 Me. Anderson v. Martindale, 1 East,
296 ; Drinkwater v. Jordan, 46 Me. 497 ; Richards v. Heather, 1 Barn. &
432. Aid. 29; Daley v. Ericsson, 45 N.
8. Dunham v. Branch, 5 Cush. Y. 786; Calder v. Rutherford. 3
(Mass.) 558; Brown v. Cambridge, Brod. & B. 302; Walker v. Max-
well. 1 Mass. 104, 113.
435
§§ 381, 382 OPERATION" OF CONTRACTS. Ch. 14r
So, a release by two of three joint creditors is a bar to a suit by
the third for one-third of the benefits.^ A release by one of joint
creditors or promisees will not be set aside unless it is shown
to have been made in fraud to the other promisees, or unless
the promisor be a mere nominal party to the action, having no
interest whatever in the subject-matter of the contract.^ If
one of the joint creditors has parted with all his interest he can-
not then release.^
But so long as a person has an interest in a joint business, his
interest, however small it may be, is sufficient to enable him to
release the promisor.^
§ 382. Several interests. — Where the interest of each person
to a contract is several and distinct, each may maintain a sepa-
rate action for a breach without joining the others on the same
side as himself. A contract by and between several persons
ascertaining a separate and distinct interest, gives to each a
right of action in his own name.^ The party suing may pro-
ceed against one or each singly, or jointly against all, but not
against more than one and less than all.^ If a joint defendant
pays the debt, it is discharged, and no judgment can be rendered
against another.^
Where the contracts are in every respect as distinct and sev-
eral as if contained in separate instruments, in each of which
1. Tuckerman v. Newhall, 17 Martin, 56 Ala. 336; Burton v.
Mass. 580; Bruen v. Marquard, 17 Henry, 90 Ala. 281, 7 So. 925;
Johns. (N. Y. ) 58; Wilkinson v. Browning v. Carson, 163 Mass. 255,
Lindo, 7 Mees. & Wei. 81. 39 N. E. 1037.
2. Myrick v. Dame, 9 Cush. 2. Streatfield v. Halliday, 3 Term
(Mass.) 248. R. 779; Cleremont Bank v. Wood,
3. Rawstorne v. Gaudell, 15 12 Vt. 252; Bangor Bank v. Treat,
Mees. & Wei. 304. 6 Me. 207, 19 Am. Dec. 210.
4. Phillips V. Clagett, 11 Mees. 3. Wallace v. Kelsall, 7 Mees. &
& Wei. 84. Wei. 264; Husband v. Davis, 10 C.
5. Rawstorne v. Gaudell, 15 B. 645; Beaumont v. Greathead, 2
Mees. & Wei. 304. C. B. 494; Griffin v. Thomas, 21
1. Chitty on PI. 9-13; Boyd v. Ga. 198.
436
Ch. 14 CONTRACTUAL RELATIONS. §§ 382, 383
the promisee has been named, it is a several contract though
contained in one instrument*
Debtors bj mere account are not joint makers or promisors
with one who has by a separate contract guaranteed payment
of the account. The two contracts are several, not joint. The
liability of each is several. Those who contracted the account
are not liable at all on the guarantee, and he who made the
guaranty is not liable at all on the account.^
And where the contract is several as to the promisees, they
must sue separately,® except where the statute has changed this
rule.^ The statute must be consulted in respect to joint and sev-
eral contracts.
Of course, the doctrine of survivorship cannot apply to sev-
eral contracts.^
§ 383. Subscriptions to establish business enterprises. —
Where subscribers to a contract for the establishment of a busi-
ness or location of a corporate plant, agree to pay the amount
opposite their names, it is a several contract, unless other pro-
visions control, and each subscriber is liable to pay the amount
of his individual subscription only.-^ The amount which each
subscriber agrees to pay is limited to the amount he has sub-
4. Barabacher v. Lee, 16 Mich. N. W. 302; Wallis v. Carpenter, 13
1G9; Yates v. Foot, 12 Johns. (N. Allen (Mass.), 19; Costigan v.
Y.) 1; Geer v. School Dist., 6 Vt. Lunt, 104 Mass. 217.
76; Hall v. Leigh, 8 Cranch (U. 8. Carthrae v. Brown. 3 Leigh
S.), 50; Catawissa R. R. Co. v. (Va.), 98, 23 Am. Dec. 2.15.
Titus, 49 Pa. St. 277; Chanter v. 1. Davis v. Belford, 70 :\Iich. 120,
Leese, 4 Mees. & Wei. 295. 37 N. W. 919; Manufacturing Co.
5. Sims V. Clark, 91 Ga. 302, 18 v. Barber, 51 Fed. Rep. 148; Gibbons
S. E. 158. V. Grinell, 79 Wis. 370, 48 N. W.
6. Price v. Railroad Co., 18 Ind. 255; Frost v. Williams, 2 S. Dak.
137; Independence v. Qtt, 133 Mo. 457, 50 N. W. 964; Davis v. Jones,
301, 36 S. W. 624; Davis v. Bel- 66 Fed. Rep. 124; Davis v. Murray,
ford, 70 Mich. 120, 37 X. W. 919. 102 Mich. 217, 60 N. W. 437;
7. Wibaux v. Live Stock Co., 9 Davis v. Cupp, 89 Wis. 673, 62 N".
Mont. 154, 22 P. 492; Brown v. W. 520; Compare Davis v. Shafer.
McKee, 108 N. Car. 387, 13 S. E. 8; 50 Fed. Rep. 764; Davis v. Crcam-
SteflFes v. Lemke, 40 Minn. 27, 41 ery Co., 48 Neb. 471, 67 N. W. 436.
43Y
§§ 383, 384 OPERATION of contkacts. Ck 14
scribed ; otherwise, a few responsible subscribers might be made
liable for numerous irresponsible parties.^
But there may be provisions in the contract by which the sub-
scribers may assume joint liability or obligations for the pay-
ment of the whole money subscribed for the enterprise or crea-
tion of a corporation, as by giving a joint note for the debt.'
But all subscription contracts, to be valid, must be delivered to
a person to perform or secure the performance of the conditions
therein irnposed, as delivery as in other contracts, is essential.'*
§ 384. Revocation. — ^While a subscription to an enterprise by
several subscribers is a several contract between the promisors
and promisee, it is also in a sense a contract among the sub-
scribers themselves, and cannot be withdravsm or revoked as to
one without the consent of all.^ Each of the subscribers con-
tracts with the others to accomplish the purpose, and can compel
the performance of the contract to the extent necessary to pro-
tect himself from any other or different liability than that which
he assumes.^
While such a contract creates a several liability on the part of
each subscriber to the amount of his subscription only, yet in
other respects the interests of the subscribers are joint, and all
must unite in order to repudiate and renounce an executory con-
tract, subjecting themselves to such damages as will compensate
the other party for being stopped in the performance of the con-
2. Landworlen v. Wheeler, 106 4. Heller v. Board of Trade, 18
Ind. 523, 5 N. E. 888; Erie, etc. R. Ind. App. 188, 47 N. E. 649.
R. Co. V. Patrick, 2 Kejes (N. t^.), 1. Cravens v. Cotton Mills Co.,
256. See, also, Davis v. Creamery 120 Ind. 6, ^1 N. E. 984, 16 Am. St.
Co., 10 Ind. App. 42, 37 N. E. 549; Rep. 298; Current v. Fulton, 10
Price V. Railroad Co., 18 Ind. 137; Ind. App. 617, 38 N. E. 419.
Davis V. Booth, 10 Ind. App. 364, 2. Zabriskie v. Railroad Co., 18
37 N. E. 549; Gibbons v. Bente, 51 N. J. Eq. 184; Erwin v. Nav. Co.,
Minn. 499, 53 N. W. 756, 22 L. R. 27 Fed. Rep. 625; Brewer v. Bos-
A. 80 and note. ton Theater, 104 Mass. 378; Clear-
3. Davis V. Knoke, 55 Minn. 368, water v. Meredith, 1 Wall. (U. S.)
67 N. W. 62. 25 ; Henry v. Dietrich, 84 Pa. St.
286.
438
Ch. 14 CONTR^VCTUAL RELATIONS. §§ 384-386
tract ;^ one of the subscribers cannot revoke — it will tako all of
them."* He can have no such authority or agency, nor can he
bind the others, so as to alter, renew or extend their liability.
Where the relation is merely that of joint debtor, neither is
agent of the other to make new contracts.^
§ 385. Validity of subscription contracts. — It is well settled
that any benefit or advantage to the party making the promise,
or any inconvenience or damage sustained by the party to whom
the promise is made, is a sufficient consideration to' support a
promise to pay by each subscriber. And many authorities hold
that where several persons subscribe, or agree to contribute,
to a common object, the promise of each is a good considera-
tion for that of the others. But all the authorities agree that
where the persons to whom the subscription runs have expended
money or incurred obligations on the faith of such subscriptions,
it is a sufficient consideration to support the contract.^
§ 386. Joint and several contracts. — It is a familiar princi-
ple that where several persons contract, jointly and severally,
3. Gibbons v. Bente, 51 Minn. Bente, 51 Minn. 499, 53 N. W. 756,
499, 53 N. W. 756, 22 L. R. A. 80. 22 L. R. A. 80.
4. Gibbons v. Bente, 51 Minn. 1. Egeleshimer v. Van Antwerp,
499, 53 N. W. 756, 22 L. R. A. 80: 13 Wis. 546; Lathrop v. Knapp, 27
Compare Davis v. Bronson, 2 N. Wis. 214; LaFayette «S: ^f. Corpo v.
Dak. 300. 50 ^T. W. 826, 33 Am. St. Maofoon, 73 Wis. 027, 42 N". W. 17.
Rep. 783 and note, 16 L. R. A. 655 3 L. R. A. 761 and note; Gibbons
and note. v. Grinell, 79 Wis. 365, 48 N. W.
5. Willoughby v. Irish, 35 Minn. 255; Troy Conference Academy v.
63, 27 N. W. 379, 59 Am. Rep. 297; Nelson, 24 Vt. 189; Barnes v. Per-
Van Kensen v. Parmelee, 2 X. Y. ine, 12 N. Y. 18; Pitt v. Gentle. 49
523. 51 Am. Dec. 322 and note: Mo. 74: Homan v. St<>elp. 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. <k
See, also, Fitch v. Constantine Hy- W. 387.
draulic Co., 44 Mich. 74, 6 N. 91. 10. Drew v. Peer, 93 Pa. St. 236.
8. See Hoadley v. Transportation 11. 109 U. S. 3, 42, 3 S. Ct. 18.
Co., 115 Mass. 304, 15 Am. Rep.
106.
578
Cll. 17 ASSIGNMENTS. §§ 510, 511
frier of the goods to the vendor, for their delivery to the con-
signee. J^Tnmerous decisions both in England and America
hold that where goods are consigned by the vendor to the vendee,
under bills of lading in the usual form, an attempt by the ven-
dor to stop the goods in transitu will be unavailing as against
an assignee of the bill of lading, who took it in good faith, for
a valuable consideration, in the usual course of business, be-
fore the attempted stoppage.^
If the bill of lading is assigned, and the legal title passes
to a bona fide purchaser for a valuable consideration before
the right of stoppage is exercised, the lien of the vendor ceases
as against the assignee, on the well known principle that a
secret trust will not be enforced as against a bona fide holder
for value of the legal title.^ The vendor places in the hands
of the vendee a muniment of title, clothing him with the appar-
ent ownership of the goods ; and a person dealing with him in
the usual course of business, who takes an assignment for a
valuable consideration, without notice of such circumstances
as under the bill of lading, not fairly and honestly assignable,
has a superior equity to that of the vendor asserting a recent
lien, known, perhaps, only to himself and the vendee.^
The right of stoppage by the vendor is lost when, before it
is exercised, the vendee has sold the goods and indorsed the
bill of lading to a sub-purchaser for value in good faith.*
§ 511. Drawing of draft by consignor. — The discount of a
draft drawn by a consignor upon his consignee, which is ac-
companied by the delivery of a bill of lading to the party
making the advance, not only passes to such party the legal
title to such property, but in the eye of the law the transfer
1. First Nat. Bank v. Schmidt, 3. Brewster v. Sims, 42 Cal. 130;
6 Colo. App. 216, 40 P. 479: Lick- Becker v. Hallgarten, 86 N. Y. 167;
barrow v. Mason, 2 Term R. 63, 1 Forbes v. Railroad Co., 133 Mass.
Smith, Lead. Cas. 825. 154; Kearney Milling and Elevator
2. Newhall v. Railroad Co.. 51 Co. v. Railroad Co., 97 Iowa, 719, 66
Cal. 345, 21 Am. Rep. 713. N. W. 1059, 59 Am. St. Rep. 434.
4. Loeb V. Peters, 63 Ala. 130.
579
§§ 511, 512 OPEEATION OF CONTEACTS. Ch. 17
of the bill of lading is regarded as an actual delivery and an
actual change of possession of the property.^ And the fact
that the bill of lading is drawn to order does not prevent its
transfer by delivery to a third person without indorsement.^
§ 512. Bills of lading — Negotiability. — It does not neces-
sarily follow that because a statute has made bills of lading
negotiable by indorsement and delivery, all the consequences
of an indorsement and delivery of bills and notes before
maturity ensue or are intended to result from such negotia-
tion. As to promissory notes the purchaser is not to look be-
yond the instrument.^ This rule was first applied to the case
of a lost bank-note,^ and was put upon the ground that the inter-
ests of the trade, the usual course of business, and the fact
that bank-notes pass from hand to hand as coin, require it.
It was subsequently held applicable to drafts.^
But these principles can have no application to the case of
a lost or stolen bill of lading, because the function of that
instrument is entirely different from that of a bill or note. It
is not a representative of money, used for transmission of
money, or for the payment of debts or for purchases. It does
not pass from hand to hand as bank-notes or coin. It is a
contract for the performance of a certain duty. The pur-
chaser of a bill of lading who has reason to believe that his
vendor was not the owner thereof, or that it was held to secure
an outstanding draft, is not a bona fide purchaser, nor entitled
to hold the property covered by the bill against its true owner.*
5. Bank v. Jones, 4 N. Y. 497, 55 1. Goodman v. Harvey, 4 Ad. &
Am. Dec. 290 and note; First Nat. E. 870; Goodman v. Simonds, 20
Bank v. Kelly, 57 N. Y. 37, 4 Am. How. (U. S.) 343; Murray v. Lard-
Rep. 650; City Bank v. Railroad ner, 2 Wall. (U. S.) 100; Matthews
Co., 44 N. Y. 13G; Merchants' Bank v. Poytress, 4 Ga. 287.
V. Railroad Co., 69 N. Y. 379 ; First 2. Miller v. Race, 1 Burr. 452.
Nat. Bank v. Railroad Co., 85 Hun, 3. Peacock v. Rhodes, 2 Doug.
160, 32 N. Y. S. 604, 66 N. Y. St. 633.
172. 4. Shaw v. Railroad Co., 101 U.
6. Merchants' Bank v. Railroad S. 557. Compare Tiednian v. Knox,
Co., 69 N. Y. 379; First Nat. Bank 53 Md. 612.
V. Railroad Co., 85 Hun, 160, 32
N. Y. S. 604, 66 N. Y. St. 112.
580
Ch. 17 ASSIGNMENTS. §§ 512, 613
Therefore, a stolen bill of lading-, or which has been illegally
transferred, gives no rights even to a bona fide indorsee ; it is
at most a contract assignable, but incapable of giving a better
title than is possessed by the assignor.^
A bill of lading, though transferable by delivery like mer-
cantile paper, is unlike such paper in this: the assignor cannot
acquire a better title to the property thus symbolically deliv-
ered than his assignor had at the time of the assignment.^ And
the possession of the bill of lading by one other than the con-
signee without indorsement does not justify the delivery of the
goods to him.'
§ 513. Warehouse receipts. — ^Warehouse receipts are made
negotiable by most of the States by statute, and have, in many
respects, the characteristics of negotiable paper. So the in-
dorsement and delivery of a warehouseman's receipt by the
owner of the property described in the receipt, to secure a
debt, passes the title of the property to the indorsee, as against
the claims of purchasers and creditors of the indorser,^ If the
transfer is made by the owner of the property, to whom the
receipt was given, for the purpose of securing a debt for ad-
vances of money made on the faith of such transfer, it is a sym-
bolic delivery of the property that the receipt purports to repre-
sent, sufficient to create a pledge, and is equivalent to an
actual delivery, and will protect the person to whom it is trans-
ferred against the claims of creditors and purchasers. The
indorsement and delivery of the receipt have the same effect
in transferring the title as the delivery of the property. The
5. Shaw V. Railroad Co., 101 U. 6. Emery v. Bank, 25 Ohio St.
S. 557; Gurney v. Behrend, 3 El. & 360, 18 Am. Rep. 299: Straus v.
Bl. 622; Tison v. Howard, 57 Ga. Wessel, 30 Ohio St. 211.
410; Decan v. Shipper, 35 Pa. St. 7. Louisville, etc. R. R. Co. v.
239, 78 Am. Dec. 334; Emery v. Barkhouse, 100 Ala. 543, 13 So.
Bank, 25 Ohio St. 300, 18 Am. Rep. 534.
299; Straus v. Wessel, 30 Ohio St. 8. Bank v. Hirsch, 59 Ark. 225,
211; Dows V. Perrin, 16 N. Y. 325; 27 S. W. 74.
First Nat. Bank v. Shaw. 61 N. Y.
283.
581
§§ 513, 514 OPEHATION OF CONTKACTS.
Ch. 17
warehouseman becomes the bailee of the holder of the receipt to
whom it is transferred, and ceases to hold for the former owner.*
While a warehouse receipt is not negotiable in the sense in
which that term is applied to a promissory note, yet the trans-
fer of such a receipt, accompanied by a sale or pledge of the
property specified in the receipt, will have the same effect as
the delivery of the property to the transferee.^"
§ 514. Nature of a warehouse receipt. — The receipt is not
required to be in any particular form.^ If the warehouse re-
ceipt is a contract it cannot be contradicted by oral evi-
dence;^ but if it is a mere receipt it can, be explained like
other receipts.^ An instrument executed and signed by the
warehouseman giving full description of the property so that
it can be identified is sufficient;* though no minute descrip-
tion of the property is necessary.^
9. Harris v. Badley, 2 Dill. C. C.
284; Shepardson v. Gary, 29 Wis.
34; Puckett v. Reed, 31 Ark. 131;
Durr V. Hervey, 44 Ark. 301, 51
Am. Rep. 594; Ferguson v. Bank,
14 Bush (Ky.), 555, 29 Am. Dec.
418; Young v. Lambert, L. R. 3 C.
P. 142; Stewart v. Ins. Co., 9 Lea
(Tenn.), 104; McNeil v. Hill, 1
Woolw. C. C. 96; Yenni v. Mc-
Namee, 45 N. Y. 614; Broadwell
V. Howard, 77 HI. 305.
10. Burton v. Curyea, 40 111. 320,
89 Am. Dec. 350; Gibson v. Stevens,
8 How. (U. S.) 384.
1. Gibson v. Stevens, 8 How. (U.
S.) 384. See, also, Harris v. Brad-
ley, 2 Dill. C. C. 284; Puckett v.
Reed, 31 Ark. 131.
2. Stewart v. Ins. Co., 9 Lea
(Tenn.), 104; Johnston v. Browne,
37 Iowa, 200.
3. Hughes V. Stanley, 45 Iowa,.
622; Carrall v. Railroad Co., 14
Mo. App. 490.
4. Harris v. Bradley, 2 Dill. C. C.
284: Puckett v. Reed, 31 Ark. 131.
5. Bank v. Hirsch, 59 Ark. 225-
27 S. W. 74.
582
Ch. 17 ASSIGNMENTS. § 515
ARTICLE II.
Assignment of Wages and Salary.
Section 515. In Equity — Unearned Wages.
516. Etlcct of Assignor's Discharge in Bankruptcy.
517. Unearned Salary of Public Officers.
§ 515. In equity — Unearned wages. — It is settled that in
equity an assignment of moneys not yet due or earned, but
which are expected to be earned in the future under an exist-
ing contract, is binding and will be enforced.^ But such an
assignment may be subject to claims of other parties and must
be taken by the assignee cum onere}
A person, however, who assigiis his future earnings must
be in the actual employment of another. One not engaged in
any employment for another, and not under contract for em-
ployment, cannot, even for a valuable consideration, make a
valid assignment of wages he may earn in the future. Such an
assignment is a mere possibility of a sebsequent acquisition of
property, which is too vague and uncertain to be sustained as a
valid assigTiment and transfer of property.^
So a school teacher who is indebted to another has the legal
right to make an assignment of his wages to accrue under his
contract with the school board; and when he draws an order
on the school treasurer in favor of his creditor, which is ac-
1. Brewer v. Griesheimer, 104 v. Butler County, 44 Neb. 110, 62
111. App. 323, 35 Chic. L. News, 144; N. W. 308.
Mallan v. Wenham, 209 111. 253; 2. Union Pacific, etc. R. R. Co.
East Lewisburg L. & Manuf. Co. v. Bank. 42 Neb. 469, 60 N. W.
V. Marsh, 91 Pa. St. 96; Ruple v. 886.
Bindley, 91 Pa. St. 296; Taylor v. 3. Lehigh Valley R. R. Co. v.
Lynch, 5 Gray (Mass), 49; Payne Woodring, 116 Pa. St. 513, 9 A. 58;
V. Mayor, 4 Ala. 333, 37 Am. Dec. Mulhall v. Quinn, 1 Gray (Mass.),
744; Greene v. Bartholomew, 34 105, 61 Am. Dec. 414; Hamilton v.
Ind. 235; Spain v. Hamilton, 1 Rogers, 8 Md. 301. Compare Ed-
Wall. (U. S.) 604; Codev. Carlton, wards v. Peterson, 80 Me. 367, 14
18 Neb. 328, 25 N. W. 353; Perkins A. 936, 6 Am. St. Rep. 207; Light-
body V. Smith, 125 Mass. 51.
583
§ 515 OPERATION OF CONTRACTS. Gil. 17
cepted by the jDroper officer of tlie school district, conditioned on
his completing his contract, and the creditor authorized the
school secretary to draw the money for him, which he did be-
fore it was garnished, then the fnnd was not subject to garnish-
ment by creditors of the teacher.'*
And so when one assigns his wages to be earned under an
engagement then existing, and when he is actually at work
thereunder, at a fixed price, payable at a certain time, though
no contract of employment existed for any stipulated time,
suoh assignment, if accepted, is good as against a garnishment
by creditors of the assignor.^ And such an assignment is good
in the absence of an express contract fixing a time of employ-
ment, as where the assignor, when he executed the assignment,
was employed at piece work or by the day.® And it is equally
well settled that an assignment of wages expected to be earned
in the future, and not based upon an existing contract, engage-
ment, or employment is void.''
The true rule is that an assignment of wages to be earned
is good if accepted, and if at the time it is made there is an
existing engagement or employment by virtue of which wages
are being, and at future may reasonably be expected to be,
earned, even though there is no contract or fixed time of em-
ployment. And in the case of a contract for work or labor an
4. Johnson v. Pace, 78 111. 143; 867, 43 Am. St. Rep. 391; Batts v.
Ruple V. Bindley, 91 Pa. St. 296. Richards Lumber Co., 56 Minn. 14,
5. Taylor v. Lynch, 5 Gray 57 N. W. 218.
(Mass.), 49; Lannan v. Smith, 7 6. Lannan v. Smith, 7 Gray
Gray (Mass.), 150; Hartley v. Tap- (Mass.), 150; Kane v. Clough, 36
ley, 2 Gray (Mass.), 566; Weed v. Mich. 436, 24 Am. Rep. 599.
Jewett, 7 Met. (Mass.) 608; Brack- 7. Mulhall v. Quinn, 1 Gray
ett V. Blake, 7 Met. (Mass.) 335,41 (Mass.), 105, 61 Am. Dec. 414
Am. Dec. 442 and note; Emery v. Jerniyn v. Moifitt, 75 Pa. St. 402
Lawrence, 8 Gush. (Mass.) 152: Ruple v. Bindley, 91 Pa. St. 296
Thayer v. Kelley, 28 Vt. 19, 65 Am. Morrill v. Noyes, 56 Me. 458, 96
Dec. 220; Augur v. Belting Co., 39 Am. Dec. 486; Runnells v. Bosquet,
Conn. 536; Garland v. Harrington, 60 X. H. 38; Lehigh Valley R. R.
51N. H. 409; Wallace v. Chair Co., Co. v. Woodring, 116 Pa. St. 513, 9
16 Gray (Mass.), 209; Metcalf v. A. 58.
Kincaid, 87 Iowa, 443, 54 N. W.
584
Cll. 17 ASSIGNMENTS. § 515
assignment of the fruits of it niaj be good though the labor to
be performed under it has not yet been commenced.^
Courts of equity will support assignments, not only of choses
in action, but of contingent interests and expectancies, and
of things which have no present actual existence, but rest in
potentiality only, provided the agreements are fairly made,
and not against public policy.' And if the workman is era-
ployed by the piece, for no definite time does not change the
rule'** or by the day, the rule is the same/^ Mere possibilities
and expectancies, according to the general course of decisions,
are assignable in equity for a valuable consideration, and equity
will enforce the assignment when the possibility or expec-
tancies have changed into a vested interest of possession.-^^
Wliether such an assignment must be for a reasonable time
is a question not yet settled by any decisions ; but it would
seem that the time of the assignment of future earnings should
be limited to a reasonable time.^^ But under this principle,
the exemptions of a married debtor do not come, and, there-
fore, he cannot waive his exemptions, because the exemptions
are for the benefit of the family of w-hich he is the head."
8. Metcalf v. Kincaid, 87 Iowa, etc. Plaster Co., 82 Mo. App. 447,
443, 54 N. W. 867, 43 Am. St. Rep. 454.
391; Hawley v. Bristol, 39 Conn. 9. Field v. New York, 6 N. Y.
26; Devlin v. New York, 63 N. Y. 179, 57 Am. Dec. 435 and note.
8; Thayer v. Kelley, 28 Vt. 19, 65 10. Hartley v. Tapley, 2 Gray
Am. Dec. 220; Augur v. Belting Co., (Mass.), 265.
39 Conn. 536; Greene v. Bartholo- 11. Hax v. Acme, etc. Plaster
mew, 34 Ind. 235; Shaffer v. Min- Co.. 82 Mo. App. 447.
ing Co., 55 Md. 74; Crawford v. 12. Warren v. Bank, 149 111. 9,
Brooke, 4 Gill (Md.),213; Weed v. 38 N. E. 122, 25 L. R. A. 746;
Jewett, 2 Met. (Mass.) 608, 37 Am. Young v. Jones, 180 111, 216, 54
Dec. 115; Field v. New York, 6 N. N. E. 235.
Y. 179, 57 Am. Dec. 435 and no<^; 13. See Boyland v. Leonard, 2
Garland v. Harrington, 51 N. H. Allen (Mass.), 497; Brewer v.
409; Brackett v. Blake, 7 Met. Griesheimer, 104 111. App. 323, 35
(Mass.) 335, 41 Am. Dec. 442 and Chi. L. News, 114.
note; Emery v. Lawrence, 8 Cush. 14. Recht v. Kelly, 82 111. 147,
(Mass.) 151; Young v. Jones, 180 25 Am. Rep. 301.
111. 216, 54 N. E. 235; Hax v. Acme,
585
§ 515 OPEEATION OF CONTRACTS. Ch. 17
And besides exemption laws do not relate to the power to con-
tract in regard to matters of general right.^^
The assignment of unearned wages, or salary, is controlled
by statute in some States. Thus, in Indiana, the assignment
of future wages to become due to employes, from persons,
companies, corporations, or associations aifected by such act,
is prohibited, and any agreement to assign is declared invalid.
This statute has been sustained as valid and constitutional. So
an agreement made by an employe to assign part of his future
wages for instruction in architecture is void. The assignment
was in the form of an order made by the employe upon the em-
ployer who accepted it.^^ If this statute be constitutional, then
why will not a statute be constitutional controlling the salary
of an employe, compelling him to make no contract in paying
over his wages except as ordered by some authority established
by the State ? Under the same principle an employe may be
compelled to deposit a part of his wages as received for the
purpose of accumulation so that he may purchase a house of
a certain value. Such statute restricts the capacity of an em-
ploye to contract in a manner before unknown to the law and
places an employe in this way in the class of infants and in-
sane persons. This statute contravenes the constitutional right
to contract in lawful vocations, and is neither based on reason
or the police power of the State.
When the debt for which unearned wages are assigned as
security, is discharged, the securities springing into existence
subsequent to the discharge by reason of a prior executory con-
tract, cannot be held for the payment of the discharged debt."
Thus, a laborer who makes an assignment of his imearned
wages, and then goes into bankruptcy and receives his dis-
charge, makes the assignment of no further validity. The
debt being paid and discharged by law, the assignment falls.^*
15. Frorer v. People, 141 111. 17. Thomas v. Cohen, 7 L. Rep.
171, 31 N. E. 395, 16 L. R. A. 492 Q. B. 527; Cole v. Kernon, 7 L.
and note. Rep., Q. B. 534.
16. International Text Book 18. Mallan v. Wenhani (Cir. Ct.
Co. V. Weissinger, 160 Ind. 349, 65 of Chicago), 33 Chi. L. News, 311,
N. E. 521, 98 Am. St. Rep. 334. 209 111. 253.
586
Ch. 17
ASSIGNMENTS.
}§ 516, 517
§ 5i6. Assignor's discharge in bankruptcy. — It is crroiio-
ously stated that the assig-nment of impariiod wages in the
nature of a mortgage or pledge, and while the debt is dis-
chargeid in the baiikniptej proceedings in so far as it is en-
forceable against the debtor personally, yet it can be enforced
in rem, that is, against the future wages which the debtor has
pledged, and hence, such wages are not aifected by the dis-
charge in bankruptcy ; but this is not the law.^°
§ 517. Unearned salary of public officer. — But there are as-
signments of salaries which are against public policy and will
not be upheld at law or in equity. So an assignment by a
public officer of the future salary of his office is void because it
is against public policy.^ And this is the doctrine in England,
and an unearned salary of a public officer cannot be assigned.^
So a municipal cannot assign his unearned salary. The
public interests are such that an assignment by a public officer
of his unearned salary cannot be permitted or treated by the
courts only as a void agreement.^ And no one can do by indi-
19. See Mallan v. Wenham, 209
111. 253. Hence it would seem that
the only practical way in which such
debtox- can avoid the effect of his
assignment, though discharged in
bankruptcy, is to cease the employ-
ment existing at the time of the
execution of the assignment and to
seek a different engagement else-
where.
20. In re West, 11 Am. B. R.
782, 128 Fed. Rep. 205.
1. Stevenson v. Kyle, 42 W. Va.
229, 24 S. E. 886, 57 Ami St. Rep.
854; Bliss v. Lawrence, 58 N. Y.
442, 17 Am. Rep. 273; National
Bank v. Fink, 86 Tex. 303, 24 S. W.
256, 40 Am. St. Rep. 833; State v.
Williams, 118 Mo. 146, 23 S. W.
1054, 21 L. R. A. 827, 40 Am. St.
Rep. 358 ; Schwenk v. Wycks. 46 N.
J. Eq. 560, 20 A. 259, 9 L. R. A.
587
221; Field v. Chipley, 79 Ky. 260,
42 Am. Rep. 215 and note; Bell v.
McVicker, 8 Mo. App. 202; Com-
pare State Bank v. Hastings, 15
Wis. 18.
2. Florty v. Oldham, 3 Term R.
681; Stone v. Lidderdale, 2 Anst.
233; Davis v. Marlboro, 1 Swanst.
79; Lidderdale v. Montrose, 4 Term
R. 248; Barwick v. Read, 1 H. Bl.
627; Arbuckle v. Cawhan, 3 Bos. &
P. 328; Wells v. Foster, 8 Mees. &
Wei. 149; Hunter v. Gardner, 6
Wilson & Shaw, 618; Hill v. Paul,
8 CI. & F. 307; Palmer v. Bates, 2
Brod. & B. 673; Liverpool v.
Wright, 28 L. J. Ch., N. S. 871.
3. Johnson v. Pace, 78 111. 143;
Merwin v. Chicago, 45 111. 133, 92
Am. Dec. 204; Addyston Pipe and
Steel Co. v. Chicago, 170 111. 580,
48 N. E. 967, 44 L. R. A. 405; Peo-
§§ 517, 518 OPERATION OF CONTKACTS. Ch. lY
rect means what the law prohibits. Thus, a power of attorney,
though irrevocable in terms, does not amount to an assignment
of a public officer's unearned or earned salary, when there is
no assignable interests at the time the power was executed.*
The doctrine is well settled that a public officer cannot assign
his unearned salary. And the law prohibits assignments of
such salary being had by indirection or effected by having the
official appoint an attorney authorized to receive the salary
and turn the same over to an assignee.
ARTICLE III.
Interests That May Be Assigned.
>
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«<in«ed!) Sec.
monopoly in interstate and international trade 326
corporate trusts and labor 327
trades unions are lawful 334
of laborers for self-protection 335
COMMISSION — See Commission and Discount.
collection by nonlicensed broker 198
taking interest and commissions 198
when usury 210
to agent for loaning principal's money — usury 211
COMMISSION AND DISCOUNT— See Discoitnt; Commission,
when taken — amounting to usury 228
agent taking commission 228
COMMON CARRIERS—
designation of, by vendee — delivery ." 152
through tickets — when interstate commerce 182
a physician does not come under the rules of 200
limiting liability for negligence 288
limiting liability for carelessness 288
limiting liability beyond their own lines 290
limiting liability as to losses not from their own negligence 291
Issuing tickets with coupons 294
liability as to free passes 295
whether telegraph companies are 296
limiting liability for their own negligence 299
contract of carriage 303
buying a competing line to suppress competition 304
discrimination by 306
rights to regulate the carriage of goods and passengers 320
rebates to shippers — efl'ect 325
stipulation exempting from negligence — interstate commerce 410
interstate contracts of affreightment 421
limitation of contract 421
implied contract to send baggage on same train with passenger. . . 424
regulation of, by the State 536, 537, 538, 539
in interstate and foreign commerce — regulation of 550
excused by act of God or public enemy 582
when liable for act of God 583
duty to deliver goods 615
liability for acts of God 615, 616
shipment of live stock 617
breach of contract to deliver goods — damages 684
COMPOSITION AGREEMENT— See Insolvency.
with creditors of insolvent 171
when void 171
secret preferences 172
880
INDEX.
COMPOSITION AGREEMENT— (conftJiwed) Sec.
what is 700
preference to separate creditors 701
with part of the creditors 702
adjustment and compromise 703
conditional sale — validity of, in bankruptcy 704
COMPOUNDING —
of felony — duress 500
COMPOUND INTEREST— See Interest.
when usurious 222
statutory provisions 223
compounding of interest — usury 226
COMPROMISE—
of infant is voidable 27
in settling mutual accounts 454
with creditors — insolvent debtor 703
CONDITIONAL SALES—
validity of in bankruptcy 704
CONDITIONS—
precedent — performance of contract 570
matters excusing nonperformance of contract 656
implied as to contingent impossibility of performance 657
implied conditions of contracts 658
when implied, as to contracts 659
contracts subject to performance 680
CONDUCTOR—
duty to passenger 293
CONFLICT OF LAWS—
lex loci celebrationis governs the interpretation of contract 115
as to the statute of frauds 116
as to the sale of intoxicants 205
usury — place of payment of interest 240
law of another State must be pleaded 243
law of place — gambling contracts 258
what law governs 395
rule of construction of laws and contracts 533
what law governs — Suits against which the statute of limitations
has run 638
CONSERVATOR—
of insane person — contracts 10
CONSIDERATION—
return of — avoidance of contract by insane person 23
tort of infant as, for note 34
return of — when infant avoids contract 63, 64
as set forth — statute of frauds 93
"for value received" 94
881
INDEX.
CONSIDERATION— { continued ) Sec,
seal imports a consideration , , , , 95
expressed in guaranty 96
original — not within the statute of frauds 121
to bind third person under the statute of frauds 122
to support contract to pay debt of another 128
substituting one debt for another — whether within the statute of
frauds 130
of agreement of composition 171
of contract, partly bad and partly good 204
taking bonus for loan — usury 216
of note — innocent holder 257
payable in gold coin 278
free passes — collateral consideration besides 295
to pay railroad company a sum for locating station 302
promise to name child 352
must be more than a mere promise 354
whether third party can sue on contract made in his favor 356
party buying business — to pay debts — liability 358
want of — recovering back money paid 448
failure of — party causing — rights of 448
& iailure of by act of God 586
"%^. failure of — recovering back 595
>^,: 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»<tm*e(J) Sec.
joint and several contracts 386
release of joint and several promisors by law 387
contribution 388
in what property may be made 389
right to receive contribution 390
JOINT AND SEVERAL CREDITORS—
insolvency of co-surety 391
must the principal debtor be insolvent 392
surety discharged by act of promisee 393
in case of tort , 394
JOINT CONTRACTS—
what is — liability of 368
JOINT CREDITORS— See Joint Obligees.
release of joint obligee — effect 381
several interests — who may sue 382
JOINT DEBTORS— See Joint Oeligoes.
suit brought against 382
subscribe to establish business 383
joint and several, liability 386
release of one, by law 387
running of the statute of limitations , 634
JOINT OBLIGEE— See Joint Promisors.
must all sue together , 377
must all join to bring suit 377
release of one obligor — effect i 378
survivorship of 380
release of — should be under seal i 379, 380
JOINT PROMISOR—
disability of one — effect 369
judgment against 370
death of one — survivorship 371
survivorship of joint liability in equity 372
survivorship of liability under the Code 373
release of one by law 387
death of one — survival of contract 592
JOINT TORT-FEASORS—
contribution among 394
JUDGMENT—
against an infant is voidable 27
confession of, agreement to enter is only an executed contract 184
against joint debtors — plaintiff's rights 370
judgment being extinguished 370
assignment — what law governs 395
of State — when reviewable by the U. S. Supreme Court 531
changing rate of interest on 563
discharged by act of law 578
90Y
INDEX.
LACHES — Sec.
right to open an account stated 429
in equity — statute of limitations 625
gross laches not considered in equity 626
LANDLORD AND TENANT— See Lessor and Lessee.
lease executed by infant cannot be avoided by the lessee 66
giving tenant notice to quit, on Sunday — effect 186
breach by landlord — mitigation of damages 687
LAWYERS—
license to follow their practice — internal revenue license 199
unlicensed — right to recover fees 199
LEASE—
by parol — for one year — when within the statute of frauds.. 135, 136
LEASE AND RELEASE—
of infant is voidable 27
LEGISLATURE—
power to amend charter 2
LESSOR AND LESSEE— See Landlord and Tenant.
voluntary payment of rent by tenant — recovering back . 501
when lessor may assign rent to accrue 518
abolishing by legislature of distress for rent — effect 560
destruction of building before occupancy by lessee — liability of
lessor 576
notice by lessor to rescind lease 597
when recision of contract cannot be made 597
LETTERS—
as written proof of contract 85
LEX DOMICILLII—
as to the sale of personalty 398
as governing marriage contracts 400
as to mariied women 401
as surety — what law governs 401
governs involuntary assignment 406
LEX FORI—
gives the remedy 115, 406, 419
governs as to the time of bringing of suits 638
LEX LOCI CELEBRATIONIS—
when governs the waiver of the statute of frauds 101
oral contract for sale of land not void 101
governs interpretation of contract 115
as to insurance policy 404
control stipulation against negligence of carrier 410
governs bill of affreightment 421
LEX LOCI CONSIDERATIONIS—
where parties contract i 413
governing contract — usury 417
908
INDEX.
LEX LOCI CONTRACTUS— Sec.
when it governs 116
as to the sale of personal property 398
marriage contracts i 400
as to married woman's contracts 401
as to validity of chattel mortgage lien ^ 402
as to the transfer of personalty 406
in the interpretation of contract 419
when the court will apply 420
LEX LOCI SOLUTIONIS—
governs the performance of contract 115
as to payment of a note 399
for the payment of insurance 404
LEX REI SITAE—
as to sale of personal property 398
LIBEL—
agreement to publish — illegal 164
LICENSE—
to enter land — no trespass 112
to sell intoxicants — effect , 205
to peddlers — old soldiers 198
to practice law — failure to take out internal revenue license. ... 199
is a theater ticket a license or contract 509
required of person selling goods 552
LIEN
of chattel mortgage — follows the property 402
created to hold proporty of corporations 541
on real estate — changing of 561
specific cannot be changed 562
of mortgage — statute of limitations i 629
for materials furnished on building 660
on goods by vendor — in conditional sales — insolvency of vendee. . 704
LIFE INSURANCE—
on insane person, no suicide clause in policy 16
suicide by impulsive insanity of insured — effect on insurance.... 17
insured knowledge of right and wrong — English and American
doctrine 18
self-destruction of insured — responsibility of insured 18, 19
insured " die by suicide, sane or insane " 20
LIMITATIONS—
reduction of periods of . . . 528
of the time to bring action 559
LIMITATIONS, STATUTE OF—
at law 624
is a statute of repose 624
. in equity 625
9 09
nSTDEX.
LIMITATIONS, STATUTE OF— (continued) Sec.
gross laches 626
rebuttal of presumption — continuing contract 627
beginning to run 628
continuing to run 629
trusts — unpaid subscription 630
death of ancestor 631
absence of debtor from the State 632
absence of creditor from the State 633
joint debtor 634
surety's liability 635
statutory provisions 636
waiver of the statute 637
what law governs 638
LOANING AND BORROWING— See Loans.
taking interest — when usury 209
legal interest — commission — usury 210
agent of the party loaning — usury 211
taking a bonus for loan — usury 216
LOANS — See Loaning and Borrowing.
made on Sunday — recovery of money 195
usurious contracts — laws of another State 417
agreement whether the interest of the lex loci celebrationis shall
control 417
when illegal — action to recover 447
LOBBYING CONTRACTS—
validity of 284
LOTTERIES—
definition — trading stamps 270
gratuitous distribution of property by lot or chance 271
sale of lottery tickets 272
lottery company chartered by the State 273
how governed — public policy 274
sending tickets into another State is interstate commerce 411
incorporation of, by State — revocation of charter 547
LOTTERY COMPANIES— See Lottery Tickets.
chartered by the State — rights of 273
charter a mere license to enjoy the franchise 273
rights of the legislature over 273
LOTTERY TICKETS— See Tickets.
regulating purchase of 1
may be subject to interstate commerce 182
LUCID INTERVALS—
of insane persons — power to contract 6
LUNATICS— See Insane Person.
910
INDEX.
MALICE— Sec.
alone, not sufficient to base an action 342
in case of strikes 342
doing an act legal within itself 345
making false representations 346
MANUFACTURERS—
trying to control retail trade 315
may legally manufacture and sell to one person only 317
combining for mutual benefit 322
receiving a bonus for locating plant 351
MARGINS—
bucket shop dealings 162
selling on — effect 248
MARKET PRICE—
of grain — what is 250
MARRIAGE—
of insane persons 13
void ab initio does not need a decree of court to annul 13
by infant — when valid contract 31
of minor emancipates him, with or without parent's consent 29
governed by the lex loci 400
leaving State to evade law, effect 400
creates a marital status 400
not naturally unlawful in another State — effect 408
employment — servant agreeing not to marry — effect 474
promise to marry — breach of 476
promise to marry a certain person — marrying another 607
MARRIAGE BROKERAGE—
legality of contracts 275
MARRIED WOMAN—
can affirm contract as provided by law, as to real estate 32
may affirm a covenant entered into when a feme sole 32
interstate contracts — effect 396
capacity to contract — what law governs 401
work and labor of a supposed wife — recovery for 461
MASTER AND SERVANT— See Employer and Employe.
when infant can recover for services 62
limiting master's liability to servant 299
limiting master's liability to servant — servants ^receiving from as-
sociation 300
interference of third parties — boycott 341
malicious interference — effect — is it restricted to master and
servants 343
period of employment of servant not determined — interference . . 344
servant discharged by false representations of third party — action 347
master cannot assign over his apprentice 519
911
INDEX.
MASTER AND SEB.V ANT— (continued) Sec.
wrongful discharge of employe 602
contstructive service 603
services to be performed in the future 604
duty of employe to seek other work 605
offer to render service 606
mode of rescission of contract by employer 607
employing anotlier to work on personalty 608
employing another to affix to real estate a machine 609
damages' recoverable 610
after notice of rescission — duty of employe 611
MATRIMONIAL BUREAU— See Marriage Brokerage.
MAXIMUM RATES—
effect of State establishing maximum rates of charges of cor-
porations 538
must not destroy a business by the establishment of 539
MECHANIC'S LIEN—
does not apply to infant's property. 46
MEMORANDUM UNDER STATUTE OF FRAUDS—
what is a valid memorandum 83
delivery of note or memorandum 84
letters, telegrams and other papers 85
evidence of contract 86
sale by auctioneer or broker — sufficiency of memorandum 87
description of parties 88
evidence to identify parties 89
parol evidence to identify agent or principal 90
terms of memorandum 91
description of subject-matter 92
consideration 93
for value received 94
seal — consideration 95
guaranty — consideration 96
signature 97
mutuality of agreement ^ 98
signature by agent 99
MENTAL SUFFERING —
as a matter for damages for breach of contract. 693
statutory provisions — valid 693
MERGER— See Pooling.
MESSAGES—
of telegraph companies — limiting liability for mistakes in send-
ing 29G, 297
MILEAGE-BOOK—
is a contract between the railroad and passenger 292
MINORS — See Infants.
912
INDEX.
MISREPRESENTATIONS— Sec.
of infant as to age — effect 67, 68
of infants — in equity 70
MISTAKE—
in an account stated — effect 427
in writing up pass-book — effect 428
payment under — mistake of fact ' 450
of law in payment — effect 452
of law in equity 453
of fact in compromise 454
MONOPOLIES—
contracts in restraint of trade 320
division of 320
combinations of manufacturers for their own welfare 322
in international and interstate trade 326
by common cari'iers — regulation by State 538
MORTGAGE—
of infant is voidable 27
of infant — how ratified 53
interest on debt — how computed on foreclosure 242
assumption of debt — rights of mortgagee to sue 353
securing note made in another State 399
foreclosure — what law governs 403
interest on secured note — whether usurious 417
MORTGAGEE—
right to sue party assuming debt 353
MORTGAGOR AND MORTGAGEE—
changing time of redemption 561
resale of mortgaged property when bought by the mortgagor 567
MUNICIPAL CORPORATIONS—
liability on implied contracts " 459
MUNICIPALITY—
partial assignments — of debts of 523
MUTUALITY—
in contract under the statute of frauds 98
signed by party to be charged 98
NATIONAL BANKS— •
interpretation of statute regarding 175
contracts — usury 232
NECESSARIES—
insane person's contract for II
contract for by infant is valid 39
what are, for infant 40
what are — how determined 40
things not necessary 41
what things are not necessaries for infant 41
913
INDEX.
NECESSARIES— (coMiijnted) Sec.
what things are necessaries for infant 43
of infant living with father 4F
payment for by another — effect 48
value of articles furnished to infant 49
what are, is a mixed question of law and fact 50
for wife and children — husband and father bound 457
for wife — implied contract 468
for minors 469
for insane persons — implied contract 471
NECESSITY—
work of — made on Sunday 188
limitation of 188
running passenger and freight trains may be carried on 188
NEGxVTIVE—
of photograph — to whom does it belong 340
NEGLIGENCE—
limiting liability — common carriers 288
limiting liability — express companies 289
liability limited as to losses not from its own negligence 290
limitation of liability of common carrier by notice on ticket 292
tickets as a contract 293
coupon tickets — rights of connecting lines 294
free passes 295
of telegraph company in sending message 297
of telephone companies^-liability 298
limiting liability of master 299
third party injured — whether privity of contract 348
stipulation exemption interstate carriers — effect 410
of depositor to examine pass-book 428
by common carrier — effect 583
NEGOTIABLE PAPER— See Bills and Notes.
NEW PROMISE—
positive and exact by infant to affirm deed 65
NEWSPAPERS—
publisher of, trying to control advertising — whether any remedy. . 315
NEXT OF KIN—
suing for promise made for the benefit of his father 361
NON-AGE—
of parties who marry — effect 31
NON COMPOS MENTIS—
meaning of 8
of accomodation indorser — defense 14
NON-PERFORMANCE—
of personal services 589
wlieve personal skill is not required 590
914
INDEX.
NON-PERFORMANCE— ( continued ) Sec.
on account of sickness 591
death of employer 592
NORTHERN SECURITIES COMPANY—
merger of railroads — legality 324
governed by Congress 324
interstate traffic — regulation of 324
NOTICE—
by express company on its receipts as to liability 289
in bill of lading — brought to attention of shipper — legality 290
on back of ticket limiting railroad's liability — how served 293
in telegraph blank — when sender of message is charged with notice 297
of goods furnished by one not contracted with — acceptance 478
of voluntary payment of money as to third party 502
of holder of money that it was stolen 502
of asignee to protect his title 508
of condition in theater ticket 509
of rescission of contract 594
to rescind — when served on the opposite party. . , 597
what is sufficient 597
bringing suit may be notice 597
of rescinding contract for services in future — rights of employe.. 604
of rescission of contract — duty of employe 611
given to agent of rescission 611
to terminate contract-reservation 621, 623
to vendor — sale for special purpose — damages 685
NOVATION—
release of debtor — whether within the statute of frauds 130
NUISANCES—
when property may be destroyed 546
OBLIGOR AND OBLIGEE—
rights of assignee of bond 508
OCCUPATIONS—
laws for protection of women and minors are valid 544
when State may regulate 544
OLD AGE—
as incapacity to contract 7
OLEOMARGARINE—
prohibiting manufacture and sale of 542
regulating sales of 550
OPERA TROUPE—
failure of manager to perform contract 589
OPTIONS-
on contracts — validity 249
when a wager, void 249
right of innocent holder of note given for option transaction 257
915
INDEX.
OPTIONS— ( continued ) Sec.
in futuers — law of another State 413
not gaming contracts 413
to purchaser of goods 613
contracts — specific performance of 669
ORAL AGREEMENT— See Parol Contract.
to bequeath or devise — legality 465
when performance 465
ORDINANCE—
establishing an exorbitant fee for doing business 198
ORDINARY CALLING—
what is — Sunday laws 187
PACKAGE—
registered letter sent by common carrier — lost — liability of rail-
road company 291
PARDON—
contract to secure 287
PAROL CONTRACT— See Oral Agreement.
to convey land — when enforced 467
PARTIAL ASSIGNMENTS—
at law — effect 521
with consent of debtor 522
in equity 524
when sustained 526
PARTICEPS CRIMINIS—
debtor and creditor — secret preferences in insolvency 172
effect on contract 176
selling grain on board of trade 251
rights of parties 275
when parties are not in pari delicto — relief 500
PARTIES—
right to contract 1
insanity of — effect 5
having insane delusions — power to contract 8
description of, in memorandum 88
who must sign memorandum 88
signed by party to be charged under the statute of frauds 98
who may plead the statute of frauds 113
paying debt of another — to whom must the promise be made.... 123
when they may unite to buy on joint account 109
ratification of void contract 192
Sunday note — in the hands of an innocent third party 193
injuring the trade of another 315
in pari delicto — enforcement of illegal contract 330
rights of relatives to photographs of the dead 340
duty not to interfere in any contract 342
916
INDEX.
PARTIES— ( continued ) See.
who are — to a contract 339
taking news from ticker — who has the right 339
when third persons may become a party to a contract 352
assumption of mortgage debt — right of mortgagee to sue 353
must be something more than a mere promise 354
acceptance by third party 355
contract for the benefit of third persons — modification of general
rule 356
exceptions to the modified rule 357
party to the consideration — trust 358
promise as agent 359
English doctrine 360
next of kin — right to sue 361
covenants 362
covenants — another rule 363
who may bring suit on simple contract 364
description of the debts 365
agreement to save harmless 366
many promisors — suit against 367
capacity to contract — interstate 397
members of the same family — services among 460
in pari delicto — relief of 500
PARTITION—
of infant — when legal 37
PARTNER— See Partnership.
giving his individual note as payment of firm's debt — effect 370
when one partner can sue another after dissolution 433
PARTNERSHIP— See Partner.
insanity of partner — as to dissolution of 15
of infants are voidable 27
contract of infants — time to avoid 60
compelled to pay debt of partner — rights of 431
of partners after dissolution 433
one party to a sale acting through a partnership. 649
PART PAYMENT— See Earnest and Part Payment.
distinguished frorii earnest money 153
when must part payment be made 154
what constitutes part payment 155
in what property must part payment be made 156
tender — statute of frauds — must be of some value 156
PART PERFORMANCE—
takes contract out of the statute of frauds, when 81
at law — under the statute of frauds 102
marriage, coupled with possession of land, is part performance.. 102
in equity 103
917
INDEX.
PART FERFOBMANCE— (continued) Sec.
what is 104
by taking possession and making permanent improvements 105
by personal service and conveyance of personal property 108
services rendered or benefits received 110
of contract to convey land 467
of contract to furnish labor or material — quantum meruit 473
taking care of party — recovery 474
of contract for personal service 475
of void contract — recovery 479
under no obligations to perform — part performance — recovery. . 480
failure to pay in the manner agreed to 481
rescission of contract 482
PASS-BOOK—
whether an account stated 428
object of 428
eflect of being written up 428
PATENTEE—
rights of — restraint of trade 328
when under police power 547
PATENTS—
rights of patentee 328
owners of different patents in single article — restraint of trade.. 329
selling of — discrimination 551
sale of — specific performance of contract 673
PAYMENT—
of wages 2
of infant's debt by another — eflect 48
of consideration alone does not take sale out of the statute of
frauds 102
of purchase-money as part performance 104
of money and labor — part performance 108
of consideration — oral agreement to convey real estate — recovery
back purchase money 109
of debt guaranteed — as to the statute of frauds 127
of liquidated debt — exception as -to part payment 171
secret preferances by insolvent — eflect on assignment 172
of money on Sunday — effect 195
of interest quarterly or semi-annually is not usury 216
of interest, may be controlled by contract 241
of interest on mortgage 241
of debt in gold coin 278
voluntary payment of another's debt — rights of the parties 340
by surety — in what property 389
of insurance loss 404
of forged check by bank — liability 428
918
INDEX.
PAYINIENT (continued) Sec.
of the debts of another — effect 430
under obligations 431
voluntary payment raises no assumpsit 433
right of partner after dissolution 433
in suretj'ship 434
to save property of another 435
contribution 436
contribution among wrongdoers 437
contributions among wrongdoers — exceptions to the general rule. . 438
indemnity 439
fraud 440
before party can collect for payment of another's debts — he must
pay 441
how made , 441
of express contracts 442
of void contracts 443
of money on void contract— effect 443
difference between express and implied contracts 444
action for money — not property 446
when voluntary — eflect 449
under mistake of fact — effect 450
of commission by both seller and buyer 451
by mistake of law — effect 452
under duress 452
what will make it voluntary 452
of settlement by compromise — mistake 454
under duress — effect 455
of taxes and assessments 456
of taxes under duress — recovery 496
voluntary payment of money — recovering back 501
voluntary payment of money — notice to third parties 502
of debts with stolen money — rights of true owner 504
as to statute of limitations 624
presumption of 624
of debts of corporation — unpaid subscription stock — statute of
limitations 630
part payment by one joint debtor — statute of limitations 634
reviving of debt — lex fori governs 638
when payable on contract work 647
partial payment as evidence of acceptance of work 652
by composition with creditors 700
PEDDLERS—
acting without license 198
cannot be favored by the legislature, because they are old soldiers 198
919
rPTDEX.
PENALTY— Sec.
implies a prohibition 173
and prohibition by statute 175
prohibition of contract — effect 175
imposed for administrative purposes 177
acts impliedly prohibited 178
for selling articles without inspection 202
PENSIONS—
fees in collecting of, may be limited by Congress 540
PEONAGE—
definition 174
contracts, illegal 174
act of Congress — construction 174
PERFORMANCE — See Specific Perform ance; Part Performance.
substantial performance of contract — effect 477
one party standing ready to perform — his rights 480
failure to pay as agreed to 481
of work and labor 481
action for part performance 481
dilliculty and hardship will not excuse 5U9
condition precedent 570
non-existence of subject-matter of contract 571
subject-matter of contract ceasing to exist 572
impossibility of performing a contract arising subsequently 573
in commercial transactions 574
bailment of an article to be repaired 575
excused by act of law 576
two ways of 577
judgment and other judicial processes 578
promisee preventing 579
when excused by act of God 580
when excused by public enemy — act of God — application to
common carriers 582
common carriers, when liable by loss by act of God 583
where law imposes a duty 585
innkeepers' liability 585
failure of consideration by act of God 586
destruction by fire 587
intervention by the act of God 588
tender of — when not necessary 606
to perform work and furnish materials 639
substantial performance — good faith 640
time of 641
condition in contract for arbiter as to performance 642
arbitration clause in contract 643
the arbiter's decision must be pertinent 644
920
INDEX.
PERFORMANCE— ( continued ) Sec,
fraud in 645
dispensing with the production of the architect's certificate 646
time of performance 647
waiver of time of 648
one party acting through a partnership 649
work must be performed in a workmanship manner 650
receiving benefit of service 651
partial payment as evidence of acceptance of work 652
sufficiency of performance 653
manufacturing articles according to sample — delivery 654
substantial performance 655
matters excusing non-performance 656
implied condition as to contingent impossibility of performance.. 657
implied condition of contracts . . 658
why implied conditions attach to conracts 659
failure of — by acts of the promisor 660
matters excusing delays 661
what constitutes breach 662
owner of building promising to see seller of materials paid 663
acceptance and waiver 664
risks during performance 665
part of performance 666
PERSONAL PROPERTY—
legal situs 398
situs of 407
as to domicile of owner 407
PERSONAL SERVICES—
nature of — performance 589
when skill is not required — as to performance 590
sickness — effect on contract 591
death of employer 592
death of one of two employers 592
PHOTOGRAPHS—
right to photographs 340
right of privacy of 340
PHYSICIANS—
curing by telepathic methods — libel by newspaper 164
laws requiring license — failure to take out — effect 200
not a common carrier — need not attend patients unless so disposed 200
sale of practice — restraint of trade 319
services rendered in case of emergency — implied contract 484
regulation of practice of by State 550
action against — as to the statute of limitations 628
PICKETING —
what is 336
intimidating non-union men 336
921
INDEX.
PLEADINGS— Sec.
when the statute of frauds can be pleaded 112
who may plead the statute of frauds 113
waiving the statute of frauds 114
who may plead usury 237
waiver of usury 238
law of another State — must be pleaded as to usury 243
suing on joint contract 368
misjoinder of defendants, obligees 377
allegation in declaration to recover on implied contract 444
set-otf — waiving tort 490
under the Code 527
POLICE POVVEE—
payment of wages 2
controls the sale of intoxicants 205
regulating the sale of food 542
reasonableness of food regulation 543
as to occupations 544
insurance 545
destruction of property 546
controlled by Federal Constitution 547
interstate commerce 548
State statute interfering with interstate commerce 549
surrender of the police power 550
imposing a tax upon selling goods 551
tax upon interstate commerce 552
when is an imported commodity incorporated with the general
mass of property 553
statute incorporating imported goods 554
POLICY—
of life insurance — no suicide clause 16
of insurance on insane person — suicide of 17
of insurance — suicide clause — self-destruction — American doctrine 19
of insurance — clause inserted, "'die by suicide, sane or insane" —
meaning 20
of insurance — what law governs 404
assignment of — interstate 405
of insurance — when assignable 518
af insurance — after loss — may be assigned 526
of life insurance — insured committing a crime — effect 545
POOLING-
of railroads — effect — corporate trusts 323
railroad business 324
rebates to shippers 325
monopoly in interstate and international trade 326
corporate trusts and labor 327
922
INDEX.
POOL SELLING— Sec.
whether legal 264
POSSESSION—
alone, of land, as to part performance 102
of land as part performance 105
POWER OF ATTORNEY—
to assign public officer's salary 517
PREFERENCES—
by insolvent when assigning 171
secret pi'eferences by assignors — effect 172
PREMIUM—
given at horse racing — whether gambling 262
buying stock at a ficttitious price — when fraudulent 163
difference as to wager 265
PREMIUM AND EXCHANGE—
taking — when usury 221
PRICE—
essential element — within the statute of frauds 141
of goods paid on Monday, sale executed on Sunday 185
taking lower price for cash than when credit is given — usury. . . . 214
in purchase price of land — cash sale or on credit — usury 215
lowering price by merchant — informing retailers — as to malice.. 315
of book reserved by publisher — when sale is made 339
recovery of — sale prohibited 409
in smuggling contracts — collection of 414
working on personalty — rescission of contract — right to recover . . 608
PRINCIPAL AND AGENT— See Agency.
verbal guarantee of solvency of purchaser by agent — not within
statute of frauds 128
executed contract by agent for principal — principal's rights 195
agent taking commission for loaning principal's money — usury. ... 211
agent soliciting passenger traffic — when interstate commerce.... 182
railroad through tickets — state and interstate service 182
agent taking commission for loaning money — when usury 228
principal may charge for extra expense 228
promising as agent — benefit of third party 359
agent acting for both principals , 451
agent receiving commission from seller and buyer — effect 451
right of agent to bring assimipsit for his injured principal 494
fraud of agent — principal's liability 503
extra services of agent 620
no limitation as to the time of hiring 622
PRINCIPAL AND SURETY—
joint obligation — death of one — effect 374
release by act of creditor 375
must principal be insolvent before surety can bring action for con-
923
INDEX.
PRINCIPAL AND SURETY— (continued) Sec.
tribution 392
liability for fraud of principal — as to statute of limitations run-
ning 635
PRIORITY—
of chattel mortgage lien 402
of assignee , 508
PRIVACY—
right of 1 340
PRIVITY—
of parties — right of privacy 340
of parties — negligence 348
when exists between parties 351
of estate — receiving money belonging to another — implied contract 445
selling land with no title 445
when there is none between parties 457
as to implied assumpsit 457
of contract — waiving tort and suing on the implied contract.... 491
PROFESSIONAL SERVICES—
as attorney to procure legislation 285
PROFITS—
sales at auction — conspiracy among buyers — division of profits. . 165
as a matter in estimating damages for breach of contract. 687, 688, 689
as damages — general rule 695
which would have been made 696
contingent not allowed 697
resale by purchaser 698
PROMISE—
to pay debt of another — to whom made 123
to pay debt of another — when within the statute of frauds 124
to pay for goods sold to another — original consideration 125
PROMISEE—
preventing performance of contract — effect on promisor 579
PROMISE WITHIN STATUTE OF FRAUDS-
to bind third parties for the debt of another 122
to whom made 123
when within the statute 124
when original 125
evidence to place liability 126
to pay debt on behalf of promisor 127
benefit accruing to promisor 128
of indemnity 129
release of original debtor — novation 130
receipt of property out of which to pay the debt 131
contractor abandoning work 132
924
INDEX.
PROMISOR— Sec.
to pay debt on his own behalf 127
promise accruing to him — not within the statute of frauds 128
where there are many — how suit shall be brought against 367
two ways of performance 577
destruction by fire of building is no discharge of contract 587
intervention of the act of God — effect on contract 588
failure of performance by acts of , 660
PROMOTERS—
right to collect pay from the corporation after organized 463
PROOF—
burden of — for discharged employee seeking other work 605
burden of — selling by sample 612
PUBLIC ENEMY—
excusing performance of contract by acts of 581
excusing liability of common carrier 582
where law imposes a duty 584
PUBLIC OFFICE—
dismissing officer — impairment of obligation of contract 426
PUBLIC OFFICER—
assignment of unearned salary 517
PUBLIC POLICY—
as to contracting 1
as to insurance of insane person 16
how determined 274
defense of public policy 275
stipulation that representation shall not avoid the contract 276
contracts for welfare of children , 277
contract payable in gold coin 278
PUBLISHERS—
trying to control the business of advertising in newspapers 315
selling his books — what rights can be exercised 339
contract with author is not assignable 519
PUFFERS — See Auction; By Bidding.
QUANTUM MERUIT—
when infant may recover 62
for services in part performance 110
when recovery can be had 473
recovery on personal services 475
recovery for part performance of void contract , 479
one party rescinding contract 482
when party may recover on — non-performance of contract 591
when discharged employe may recover on 602
recovery for labor 655
for breach of contract for work 688
925
IKDEX.
QUARANTINE— Sec.
laws — when valid 549
excluding cattle and meats 549
RAILROADS — See Common Carriers.
when not common carriers — special contract 288
hauling circus cars — liability , 288
doing an interstate business 288
contracts locating right of way 302
contracts locating stations and depots 302
giving telegraph company exclusive privilege to set poles 308
must not create a monopoly in the carriage of passengers and
property . 320
pooling of their business 324
merger of 324
rebates to shippers 325
monopoly in interstate trade 326
may establish reasonable rates among themselves for self-pro-
tection 326
giving employees reason for their discharge 537
when compelled to make changes in roadbed 541
RATIFICATION— See Affirmance.
of contract made on Sunday — void 192
in part of contract 598
REAL ESTATE—
sale of — what law governs • 403
REBATES—
to shippers by railroad companies 325
RECOGNIZANCE—
of infant is valid 35
RECOUPMENT—
when allowed as to work 650, 651
when not waived by acceptance of work 664
REDEMPTION—
change of time of — effect 561
reducing rate of interest on 564
extending period of 566
resale wlien bought by mortgagor for less than the debt 567
REGULATIONS—
of corporations by state 535, 536
charters of corporations are contracts 536
subsequent acts regulating railroad companies 537
the sale of food 542
reasonableness of food regulations 543
by states — excluding food products 549
of telegraph company by state 649
of common carriers 550
926
INDEX.
RELEASE— Sec.
of lien on property — promisor to pay debt 127
of original debtor — novation 130
of surety by act of creditor 375
by one of several promisees — effect 377
of one joint obligee with conditions 378
should be under seal 379
of one of joint obligors 387
KEIMEDIES UNDER STATUTE OF FRAUDS—
no action to be brought i 100
void and voidable contracts 101
performance in part — at law 102
part performance in equity 103
what is part performance 104
possession of land and improvements 105
parol gift of real estate 106
specific performance of agreement 107
personal service and conveyance of personal property 108
recovery of money paid 109
service rendered or benefits received 110
use and occupation Ill
defense 112
who may take advantage of the statute of frauds 113
waiver of statute in action for breach of contract 114
conflict of laws 115
conflict of laws — statute of frauds ,• 116
HEMEDY—
statute of frauds concerns the remedy only 113
to enforce prohibited contract 184
to collect money loaned on Sunday, against the statute 195
of unlicensed brokers to collect commission for sale 198
peddling without a license — cannot collect for services 198
on contract partly bad and partly valia 204
for liquors sold without license 205
pleading usury laws of another state 243
to enforce option contract 254
to recover back money lost at gaming 259
to enforce illegal contract , . . 330
parties in pari delicto 330- 332
test of the liability of trades unions 335
to enforce revenue contracts of another country 415
interpretation of interstate contract 419
agreement as to what law should govern 420
common carriers — contract of afireightment 421
alien labor acts 422
impairment of — laws enter into the contract when made 555
927
INDEX.
REMEDY— ( continued ) Sec.
altering the remedy 556
retrospective acts 557
exemptions 558
limitations 559
abolishing remedy 560
redemption from sales of real estate , 561
special liens 562
changing rate of interest on judgment 563
reducing rate of interest in redemption 564
change of procedure 565
extending the period of redemption 566
resale when bought by the mortgagee for less than the debt 567
the statute of limitations affects only the remedy 629
when law furnishes no complete remedy — specific performance. . . . 667
specific performance — mutuality 669
contracts relating to personalty 670
at law — specific performances 671
change in the condition of one party 672
specific performance — supervision of court 676
contracts involving the exercise of skill, personal labor and culti-
vated judgment 677
RENTS—
voluntarily paid — recovering back 501
future rents may be assigned 518
REPAIRS—
on real estate of infant, not a necessary 42
REPEAL—
of statute — effect on contracts 416
of statute in another State — contract made there — effect 416
REPLEVIN—
of goods delivered on Sunday 195
of property delivered by agent on Sunday — action by principal. . 195
REPRESENTATIONS—
as to credit under the statute of frauds — statutory provisions. . . . 157
when the statute of frauds applies 158
sufficiency of writing under the statute of frauds — as to credit,
parol evidence — representation as to credit 160
stipulation that false representation shal not avoid a contract.. 276
when false — injury to third party 346
taking as true — pass-book — effect 428
RESALE—
buying goods to resell — breach by vendor — damages 698
RESCISSION—
of contract for benefit of third person 355
of contract — must be in toto 448
928
INDEX.
r
RESCISSION— {cowitn-wed) Sec.
action for , 448
of contract — part performance 482
as to executed contracts 593
notice and acceptance of 594
right to rescind 595
time to rescind , 596
notice to rescind 597
rescission in part 598
recovering back consideration paid 599
sealed contracts — to recover money paid 600
of contract — as to damages 688
of contract — damages 690
contingent damages for breach 690
RESCISSION, CONDITION SUBSEQUENT—
selling by sample 612
option to purchaser 613
contract of hiring, employe guarantees satisfaction 614
contracts of common carriers 615
act of God that will excuse a common carrier 616
shipment of live stock 617
hiring contracts — implication of discharge 618
reservation of wages payable at certain intervals 619
extra services 620
reservation of right to terminate 621
no limitation as to term of hiring 622
notice of termination — reservation 623
RESERVATION—
in charter of corporation — effect 541
of wages — payable at certain intervals 619
of right to terminate contract 621
notice of termination of contract 623
RESTRAINT OF TRADE—
by establishing an excessive fee for doing business 198
by corporations in a public business , 301
contracts of 309
unreasonable restraint 310
English doctrine as to limitation to time and space — reasonable-
ness 311
American doctrine as to limitation of time and space 312
test of reasonableness 313
the latest statement of the test of reasonableness 314
Illinois rule is arbitrary 314
injuring the trade of another 315
interpretation of contract 316
dealing with exclusive persons 316
929
INDEX.
RESTRAINT OF TRADE— (continued) See.
sale of secret process 316
sale of good will of business 316
rights of patentee 328
owners of diflFerent patents in single article 329
RETROSPECTIVE LAWS—
effect of 532
REVENUES—
enforcing revenue law of another country 415
REVOCATION—
of subscription of joint debtors 384
as to gifts 425
RIGHT TO CONTRACT—
right of State over 1
locating by railroads — rights 302
RISKS—
during performance of building contracts 665
SALARY—
teacher cannot collect if he has no certificate to teach 201
assignment of unearned — eff"ect 283
of public officer to be paid is not property 426
recovering for extra services 462
one partner may engage for a salary 483
assignment of unearned salary by public officer 517
of public officers — can be controlled by the legislature 530
of school teacher — if school house burns, goes on with no abate-
ment 587
of school teacher — closing of school 589
SALES—
by insane vendor to bona fide purchaser — validity of 22
by infant of land — ratification of sale 53
requisites of memorandum of 88
promise of one to become responsible for goods sold to another .... 122
credit given to the receiver of the goods 122
of goods — to be paid by a third party — when within the statute
of frauds 125
of claim — guaranteeing its collection — not within the statute of
frauds 127
price an essential element of 141
amount of, under statute of frauds 142
of several articles — amount — how determined 143
of goods, wares and merchandise 144
earnest money under the statute of frauds 153
when must part payment be made 154
what constitutes part payment 155
in what property part payment may be made 156
930
INDEX.
SALES — (continued) Sec.
by-bidding — effect on purchase , 165
at auction — by-bidding — when I; gal 167
agreement to purchase property on joint account — at auction.... 169
against statute — effect 178
of goods on Sunday — delivered on a secular day — effect 185
goods delivered on Sunday — price paid on Monday — effect 185
when within the Sunday laws 187
vessel not sealed — effect 197
by broker having no license — collection of commission 198
of articles without inspection according to law — effect 202
of intoxicants without license 205
of property — taking commission for care of property — not usury. . 210
of property — taking lower price for cash than when sold on credit
— usury 214, 215
of securities — tainted with usury — in the hands of innocent pur-
chasers 230
absolute sale with agreement to repurchase — usury 231
for furture delivery 248
with oi)tion — margins 249
with future delivery — effect . . 249
intent — to deal in futures 254
as to option contracts 254
of commodities not in existence 255
of lottery tickets — when illegal 272
of offices — legality of 279
of secret processes — restraint of trade 318
of good will of business — restraint of trade 318
of books — publisher wishing to control 339
of photographs without owner's consent 340
of articles — third party injured by vendor's negligence 348
of personalty — place of contract 398
vendor reserving title — what law governs 402
of real property — what law governs 403
interstate laws 406
of merchandise to be delivered in another State 408
interstate — controlled by Congress 411
of goods on Sunday — law of another State 412
for smuggling purposes 414
selling land with no title — right of purchaser 445
delivery of part of the chattels sold — remedy of purchaser 448
of theater tickets — rights of purchaser 509
of property under execution — limiting amount 565
when executed cannot be rescinded 593
purchaser advancing money — consideration fails — effect on con-
tract 595
931
INDEX.
SALES — ( continued ) Sec.
by sample — rescission of sale 612
option to vendee of goods 613
of patent rights — specific performance 673
of personalty — specific performance 674
of chattels having a special value — specific performance 675
of property for special purposes — breach of, damages 685
of articles not in existence 694
vendor knowing of the vendee's profits — breach — damages 695
to purchaser to resell — breach of — damages 698
SAMPLES—
manufacturing of articles according to 654
SCALPING CONTRACTS—
in sale of tickets — illegal i 173
SCALPING TICKETS— See Tickets.
SCHOOL TEACHERS—
must have certificate, to draw pay 201
assignment of unearned salary 515
agreeing to instruct a student — intervention of act of God 586
burning of school house — salary 587
closing of school by board of health — salary continues 589
breach of contract by school board — duty of, to seek other em-
ployment 686
SEAI^-
imports a consideration 95
release of obligor, should be under seal. 379
sealed contract — how interpreted 419
contract sealed — part performance of void agreement — recovery.. 479
contract under seal — suing to recover money back 601
SEDUCTION—
infant responsible for 69
SEISIN—
livery of, by lunatic — effect 9
SET-OFF—
waiver of tort — suing in assumpsit 490
against assignee in insolvency 507
as to laborers — assigned his wages 507
by owner of building — against contractor 640
SHIPPERS—
rebates to, by railroad companies 323
SHOPPING—
by infant — validity of contracts 38
SICKNESS—
when it will excuse performance of contract 589, 592
932
INDEX-
SIGNATURE— Sec.
of telegram — under the statute of frauds 85
of auctioneer or broker to sale — when sufficient 87
to memorandum — party to be charged 88
by initials of party, valid 89
under statute of frauds 97
when must be at the end of the writing 97
signing by both parties, under the statute of frauds 98
• by agent under the statute of frauds 99
agent must have authority to sign 99
as "administrator" or "executor" — personal liability 120
SINGERS—
specific performance of contract 677
SITUS—
of personalty 407
legal and actual 407
SLOT MACHINES—
use of — whether gambling 244
SMELTING COMPANY—
contracts with — cannot be assigned 519
SMUGGLING—
contracts — validity of , 414
SOBRIQUET—
as signature 85
SOLDIERS—
cannot be favored as against other citizens 198
SPECIAL CONTRACTS—
part performance — recovery 473, 474
wilful default to furnish services — effect 474
default not wilful 475
SPECIAL PROMISE—
of administrator or executor — when required to be in writing. . . 120
SPECIFIC PERFORMANCE— See Performance.
part performance — when enforced 107
of oral agreement to devise 466
when enforced — contracts to devise B67
requisites of contract — building contracts 668
mutuality of obligations and remedy 669
contracts as to personal property 670
when there is an adequate remedy at law 671
change of conditions of one of the parties 672
sale of patent rights 673
sale of personalty 674
sales of chattels having a special value 675
supervision of the court — continuous acts 676
933
INDEX.
SPECIFIC PERFORMANCE— (confWMed) Sec.
contracts involving the exercise of skill, personal labor and cul-
tivated judgment 677
tender of performance 678
time of performance 679
contracts subject to conditions 680
part performance i . . 681
SPIRITUAL MANIFESTATIONS—
as evidence of sanity 8
STAKEHOLDER—
right to pay over money 502
STATIONS—
locating by railroads — rights 302
STATUTE OF FRAUDS—
when created 76
requirements of 76
section four — terms of 77
section seventeen — terms of 78
as to contracts created by law 79
as to executed contract 80
modification of written contract within 81
contract executed on one side 82
STOCK EXCHANGE— See Board of Trade.
STOCKHOLDERS—
of bank — liability for future debts 541
running of the statute of limitations 630
STOCKS—
shares of, bought at fictitious prices — effect 163
purchase of, on board of trade — when valid 252
STOPPAGE IN TRANSITU—
assignment of bill of lading — effect 510
STREET CARS—
failure to run — by act of God 588
STRIKERS—
right of, to persuade non-union men to leave employment 336
boycott by State 341
STRIKES—
right to picket 336
SUBJECT-MATTER—
desoiption of, in memorandum — under statute of frauds 92
of contract non-existing — performance of contract 571
ceasing to exist 572
SUBSCRIPTION—
to pay debt of church — made on Sunday — work of charity 190
conditional subscription to stock 302
by parties to establish business 383-
934
INDEX.
SUBSCEIPTION— (cOM^WMed) Sec.
revocation of — joint debtors 384
to establish business — liability 384
validity of contracts of 385
validity of — joint debtors 385
to corporation stock — running of the statute of limitations 630
SUCCESSION—
interstate — taxation 395
SUICIDE—
of insane person — collecting life insurance 16
by impulsive insanity of injured — effect on policy 17
of insured — knowledge of right and wrong — English and American
doctrine 18, 19
of insured " sane or insane " 20
SUNDAY CONTRACTS—
contracts made outside of State 412
SUNDAY LAWS—
contracts made on Sunday at common law — eflFect 180
constitutionality of Sunday law 181
as to interstate commerce 182
prohibited contracts 183
contracts not prohibited by statute 184
negotiation on Sunday — contract completed on Monday 185
contracts within the statute 186
ordinary callings 187
works of necessity 188
working on Sunday to prevent loss on week day 189
works of charity 190
traveling on Sunday 191,
ratification of Sunday contracts 192
third persons 193
as to third persons — contracts dated on Sunday 194
contiacts executed on Sunday 195
SURETY— See Principal and Surety.
when surety may claim contribution 388
payment of principal's debt 389
right to receive contributions 390, 391
when action can be brought against co-surety 391
action by — must the principal be insolvent 392
discharged by act of promisee 393
married women as 401
contibution of — joint or several 434
SURETYSHIP—
infant's contract of, is voidable 27
inf orcement of contribution 434
935
INDEX.
SUKVIVORSHIP— Sec.
of joint liability 371
• in equity — joint liability 372
of interest — joint obligees 380
TAXATION—
lex fori — action in assignee's name 406
TAXES—
legal interest and taxes taken — usury 227
payment of — mistake of law 452
payment of — illegality of 456
when payment is voluntary 456
paid under duress — recovery 496
imposed on selling goods 551
upon interstate commerce 552
when is the imported property incorporated with the general mass
of property, for taxation 553
statute incorporating imported goods — validity 554
statute which is retrospective 557
TEACHERS— See School Teachers.
TELEGRAMS—
as memorandum to charge the sender • 85
when may be sent on Sunday — necessity 188
TELEGRAPH COMPANIES—
must serve all customers alike 298
whether common carriers 296
limiting liability in sending message — validity of 297
repeating message — effect 297
telegraph — definition 307
discrimination by — effect o07
agreeing to an impossible contract 568
breach of — damages G92
breach of — mental suffering 693
TELEPHONE COMPANIES—
whether common carriers 296
rights in transmitting message for mistake 298
must not discriminate 307
TENANTS IN COMMON—
guardian and ward — partition — method , 37
TENDER—
of performance — when necessary 678
TENURE—
of public office — legislature may control 426
TERMS—
of memorandum required by the statute of frauds 91
936
INDEX.
THEATER TICKET— Sec.
whether a mere license 509
whether assignable 509
whether a contract 509
THEATRICAL MANAGER—
rights of — tickets to public entertainments 509
THEFTS—
stolen money in the hands of a third party with notice 502
of bill of lading — rights of assignee of 512
THREATS—
when intimidation 336
of imprisonment — duress 499
TICKERS— See Board of Trade.
right to use information of 339
TICKETS—
prohibition of sales except by lawfully authorized agents 173
scalping contracts — when void 173
selling theater tickets on Sunday 186
of railroad — limitation by notice 292
non-transferable — when assigned 292
of railroad — as a contract 293
limitations on 293
railroad tickets with coupons 294
TIME—
to ratify infant's contract 55
what is a reasonable time to avoid an infant's contract 59
one year from the making of a contract — when within the statute
of frauds 135, 136
to assign future wages 515
extending in ease of redemption 566
to rescind contract 596
what is reasonable, to return chattels bought on option 613
no limitation for the term of hiring 622
as between principal and agent — as to term of hiring 622
continuing contracts — when statute of limitations begins to run . . 627
running of the statute of limitations 629
parties under disabilities — running of the statute of limitations. . 629
of performance of contract 641
of payment of debt payable on demand 641
day fixed for performance 041
of performance of work 647
waiver of 648
of performance — specific performance 679
TIME AND SPACE—
limitations of in contracts in restraint of trade. . . .309, 310, 311, 312
313, 314, 315
937
INDEX.
TITLE— Sec.
coming from an insane person 24
transmitted by deed of infant 57
guardian's title to ward's property 74
of real estate by verbal agreement 103
TOLLS—
implied contract to pay 423
action to collect — assumpsit 423
TORT-FEASORS—
several — waiver of tort 495
liability of each 495
TORTS—
notes of infants for, are valid 34
of infants — liability 67
growing out of contract relations 68
infants liable for 69
promise to pay — within the statute of frauds 122
joint wrongdoers — contribution 394
waiver of — suing in assumpsit 464, 486
when waiver may be made 487
TRADE AND PROFESSIONS—
contract prohibited by statute 196
sealing of weights and measures 197
brokers — peddlers 198
lawyers 199
physicians 200
school teachers 201
articles of commerce — sales without inspection 202
minors — prohibited work 203
contracts valid in part and void in part 204
sale of intoxicants without license 205
TRADES UNIONS—
ogranization of workingmen 333
are lawful combinations 334
liability of for interference 335
picketing by 336
blacklisting 337
coal strike combination 338
TRADING STAMPS—
issuing — whether gambling 270
statutory control — whether constitutional 270
giving them, not a lottery 270
TRUCK STORES— See Truck System.
TRUCK SYSTEM—
regulating payment of wages 1, 2
in England 3
938
INDEX.
TRUST DEED— Sec.
executed on Sunday — delivered on Monday — as to validity 185
TRUSTS—
holding property in trust — suit 358
personal trust cannot be assigned 519
running of the statute of limitations 630
enforcement of a contract to devise 667
TURNPIKE—
collection of tolls due 423
assumpsit may be brought for collection of tolls due 423
UNFAIR TRADERS—
listing by trades unions 335
UNION ASSOCIATIONS—
board of education compelling contractor to employ union laborers 317
organized to protect the members 327
UNION LABOR—
stipulation that only union labor shall be employed — effect 301
UNITED STATES SUPREME COURT—
jurisdiction 531
USE AND OCCUPATION—
of land — covenants valid Ill
USURIOUS CONTRACTS—
definition 206
statutory provisions 207
intent is essential to constitute usury 208
lending and borrowing money 209
legal interest — commission 210
agent of the party loaning 211
discount of accommodation paper 212
taking personal property as interest 213
cash and credit 214
in purchase price of land 215
bonus for consideration for making the loan 216
antedating a note — interest payable in advance 217
hiring or renting securities 218
building and loan association 219
building association must keep within the statute 220
premium and exchange 221
compound interest 222
statutory provisions 223
interest coupons 224
recovering back usury 225
computation of interest — compounding 226
taxes and exchange 227
commission and discount 228
attorney's fees 229'
93&
INDEX.
USURIOUS CONTRACTS— (con^iMwed) Sec.
sale of security — innocent purchaser 230
absolute sale with agreement to repurchase 231
national banks 232
mistake in taking interest 233
renewal notes and mortgages 234
contract having an independent existence 235
evidence — sufficiency 236
who may plead usury 237
waiver of usury 238
burden of proof 239
place of payment of interest — conflict of laws 240
payment may be controlled by contract 241
computing interest at stated times 242
the law of another State must be pleaded 243
USURY — See Usurious Contracts.
definition 206
statutory provisions 207
taking personal property as interest 213
making different prices for cash or on credit 214
who may plead 237
waiver of 238
burden of proof to establish 239
usurious contracts — law of another State 417
intention of parties 417
does the lex loci solutionis govern on judgment 417
making contract void — validity in other States 418
as to retrospective laws 532
VALUE RECEIVED—
expressing consideration 94
VENDOR AND VENDEE—
insane vendor selling to bona fide purchaser — validity of sale 22
bona fide purchaser of the grantee of a lunatic — validity 24
shopping by infant — validity of contract 38
bona fide purchaser from infant — title transferred 61
oral sale of land — purchase money paid — recovering back 109
taking back chattels after sale — when within the statute of
frauds 140
performance of contract by vendor — effect 148
soliciting business from another 304
selling business— restraint of trade.. 309, 310, 311, 312, 313, 314, 315
sale of good-will — restraint of trade 319
sale of physician's practice 319
when third party is injured by negligence of vendor 348
selling for smuggling purposes 414
receiving goods from one not the original vendor — effect 478
940
INDEX.
VENDOR AND VENDEE— (coji^inwed) Sec.
receiving part of the goods 478
selling property in contravention of the law — recovery 481
sale of theater ticket — rights of vendee 509
rights of assignee of bill of lading 510
sale — impossibility to deliver — effect 574
rights to return goods by vendee — sale by sample 612
option to vendee of goods 613
owner of building promising to pay seller of building materials . . . 663
specific performance of part of contract 681
selling articles for special purposes — breach of — damages 685
sale of articles not in existence 694
buying goods to resell — breach by vendor — damages 698
WAGERS—
definition 244
liability of wagers at common law 245
liability of, in the United States 246
statutory provisions 247
in insurance 266
assignment of policy — valid in its inception — effect 267
execution of party for crime — whether court will review 545
WAGES—
payment of — truck system 2
payment monthly 2
of emancipated infant belong to him 29
father may pay to children 470
recovery for part performance 473
wilful default to work — effect 474
what plaintiff must show to recover 474
assignment of unearned wages 515
compelling corporations to pay employes weekly 541
right to sue for, after discharge 602
for constructive services 603
WAIVER—
of statute of frauds 114
of usury — how waived 238
of the statute of limitations — when against public policy 275
of right to hold master liable for injury to servant 300
of an account stated 427
of tort — suing in assumpsit 464, 486, 488, 489
doctrine that the property must be sold 488
doctrine that the property need not be sold 489
of tort by agent — bringing assumpsit 494
no waiver of exemptions of married man 515
of building contract by accepting building 579
the statute of limitations may be waived 637
941
INDEX
WAIVER— ( continued ) See.
of time of performance of work 648
by owner of building by acceptance 664
of condition of contract 680
WARD—
and guardian tenants in common — method of partition 37
right of guardian 72, 73
WAREHOUSE RECEIPTS—
whether negotiable 513
nature of 514
WAREHOUSES—
kept by individuals — establishing of maximum rates by State. . . . 538
WARRANT—
of minor to confess judgment is void 28
WARRANTY—
on Sunday — sale of goods when valid 412
sales by samples 612
WATER COMPANIES—
rights of third persons 349
as to statutory provisions 349
assignment of contract by city 350
WEIGHTS AND MEASURES—
statutes providing for 197
WORK AND LABOR—
as part payment in parol agreement to convey land — effect 110
contracts of — when within the statute of frauds 146
chattels in existence and goods to be manufactured — when within
the statute of frauds , 146
on Sunday — what included 187
of necessity 188
on Sunday to prevent loss on week day — effect 189
works of charity on Sunday 190
traveling on Sunday 191
minor doing prohibited labor 203
organization of laborers for self-protection. . . .■ 327
organization of trades unions 333
trades unions are lawful 334
discrimination by laborers against employers 335
blacklisting of laborers 337
statute prohibiting blacklisting 337
coal strike commission condemns boycotts 338
laborers using unlawful means in strikes to persuade 338
malicious interference between master and servant 343
alien labor acts — object of 422
gratuitous — implied contract 458
to members of same family 458
942
INDEX.
"WORK AND LABOR— (continued) Sec.
by members of family 460
of a supposed wife — recovery for 461
recovering for extra services 462
recovery on quantum meruit 473
wilful default to work — effect on wages 474
default not wilful — recovery for part performance 475
contract for personal service 475
substantial performance 477
recovery for services under void contract 479
failure to pay as agreed to 481
performing work for another 483
in case of flood or conflagration 483
physician in emergency 484
burial of the dead — implied contract 485
set-off by laborer, who has assigned his wages 507
assignment of labor of services 515
contracts for personal skill or services cannot be assigned 519
wrongful discharge of employe 602
constructive service 603
services 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 employe 611
continuing contract to work — effect of statute of limitations 627
performance of — furnishing materials 639
substantial performance — good faith 640
time of performance 641
time of performance of work 647
waiver of time of performance 648
labor must be performed in a workmanship manner 650
receiving benefits of work — liability 651
partial payment- as evidence of acceptance of work 652
sufSciency of performance of work 653
manufacturing articles according to order 654
substantial performance 655
matters excusing non-performance 656
implied condition as to contingent impossibility of performance. . 657
implied condition of contract 658
when implied conditions attach to a contract 659
what constitutes a breach of building contract 662
risks during performance of building contract 665
943
INDEX.
WORK AND LABOn— (continued) Sec.
part performance 666
specific performance of labor contracts 668
specific performance of contract to labor 676
involving skill 677
cannot be specifically performed 677
breach of contract — laborer must protect himself — duty to seek
other work 686
for the use of some special instrumentality 687
breach of contract by, not furnishing logs 687
labor or a sale — personal skill 694
WRONGDOERS—
contribution among 437, 438
when one party is innocent — -contribution 438
cannot have indemnity 439
having adverse possession of land — taking stone and trees —
remedy 493
(Total number of pages 952.)
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