UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY NOTES TO CLARK ON CONTRACTS BY CHARLES A. GRAVES University of Virginia Jmmes B. Howe, Si&na tt*. He us* University, NOTES TO CLARK ON CONTRACTS BY C. A. GRAVES u \ UNIVERSITY OF VIRGINIA The Michie Company, Printer* Charlottesville, Va. 1910 T C S-*18 C f i7 TT*4 3/-J3L. 3 v? Notes to Clark on Contracts. 1. When a contract by letter complete? As soon as the offeree /oj^ his letter of acceptance, in a reasonable time after the receipt of the offer, provided he has not meanwhile received notice of the revocation of the offer. See Clark, 25-27, 33- 34, where Massachusetts is mentioned as the only State which holds that an acceptance is not communicated until it is received by the offerer. And in Langdell's Summary of the Law of Con- tracts ( 12; 14; 180-181), it is contended that, on principle, where the contract is bilateral (i. e., a promise for a promise), it is necessary in order to complete the contract that the offerer should receive notice of acceptance; but Prof. Langdell concedes that it is otherwise when the contract is unilateral (i. e., a promise for an act, or an act for a promise), when no notice of acceptance is required. 2. Can Cooke v. Oxley, 3 Term Rep. (Durnford and East) 653, be defended on principle? See Clark, 35, note 34. In Cooke v. Oxley, Oxley agreed to sell specific goods to Cooke on certain terms, and to keep the offer open until 4 o'clock that day. Cooke averred that he did agree to buy within the time allowed, but that Oxley failed to deliver. The court decided in favor of Oxley. The decision has caused much difficulty, and it has been suggested that the case is inaccurately reported. Boston, etc., R. Co. v. Bartlett, 3 Cush. (Mass.) 224. It seems that the offer remained unrevoked until the return of Cooke, and its acceptance by him, before 4 o'clock, and it is now settled law that, while a time offer is revocable at pleasure, yet its accept- ance during the time, while it remains unrevoked, makes a bind- ing contract. It is possible that from any point of view the decision was wrong, but it has been attempted to explain the case on the ground that the declaration did not allege (though such was the fact) that at the time of the acceptance the offer remained unrevoked. But Prof. Langdell shows that this was 4 NOTES TO CLARK ON CONTRACTS not a necessary allegation by the plaintiff, as the law would pre- sume a time offer to continue until the time expires, and it is not necessary in pleading to allege what the law will presume; and if the offer had been revoked, this was a matter to be al- leged and proved by the defendant. See Langdell, Summary of Law of Contracts, Sec. 182. 3. What is a sealed instrument now in Virginia? For the requisites of a seal at common law, see Clark 52-53, citing Pierce v. Indseth, 106 U. S. 546, holding that it is sufficient if an impression is made on the paper itself on which the instru- ment is written, without the intervention of wax or wafer. And see Jacksonville, etc., R. Co. v. Hooper, 160 U. S. 514, which seems to decide that, even in the absence of statute, a scroll may be a sufficient seal, if it be so intended. In Virginia it is enacted (Code Va., Sec. 2841) as follows: "Any writing to which a natural person making it shall affix a scroll by way of seal shall be of the same force as if it were actually sealed. The impression of a corporate or official seal on paper or parchment alone, shall be as valid as if made on wax or other adhesive substance." Under this statute, the question arises, When is a scroll af- fixed "by way of seal"? As to writings under seal for the pay- ment of money (i. e., bonds and covenants as distinguished from deeds of conveyance of land) it is the established doctrine in Virginia that the scroll is not affixed by way of seal unless it be acknowledged as a seal in the body of the instrument. Thus in the case of Clegg v. Lemessurier, 15 Gratt. 108, it was held that a writing for the payment of money, or other purpose for which a deed is not required, though it has a scroll at the foot thereof with the word seal written therein, still cannot be considered in Virginia a sealed instrument, if there* be no rec- ognition of the scroll as a seal in the body of the instrument, the word "seal" written in the scroll not being in the body of the instrument. This recognition is usually by the words "Wit- ness my hand and seal," above the signature, and thus in the body of the instrument. And it is held that, in the absence of these words, extrinsic evidence is inadmissible to show that in fact the scroll was affixed by way of seal. Clegg v. Lemes- NOTES TO CLARK ON CONTRACTS 5 surier, supra. Thus in Cover v. Chamberlain, 83 Va. 286, this instrument was held not under seal: "$507. Waterford, Va., Jan. 1, 1871. One day after date, I promise to pay Samuel A. Cover, or order, the sum of five hundred and seven dollars, value received. S. E. Chamberlain. [Seal.]" But if the words "witness my hand and seal," or similar words do occur in the body of the instrument, theft a scroll following the signature will be sufficient, though the word "seal" is not written therein; and it has recently been held in Virginia that the word "seal" following the signature is also sufficient, though there is no scroll around it. See Lewis v. Overby, 28 Gratt. 627. As to whether in Virginia the seal of a corporation may be a scroll, if recognized in the body of the instrument, see 3 Va. Law Reg. 283, note, where it is said that the question has not been decided. The above doctrine as to the necessity of the recognition in the body of the instrument of a scroll used by way of seal pre- vails in four or five States besides Virginia (see Clark, 53, and n. 22) ; and even in States where it is not necessary, it is usual to insert the words "witness my hand and seal" above the signature to a sealed instrument. But in most of the States a scroll may be used for a seal without any recognition in the body of the instrument. And even in Virginia an instrument which purports to convey land (which conveyance must be by deed) is considered under seal if a scroll be annexed to the grantor's signature, and the instrument be acknowledged by the grantor in order to authenticate it for recordation, although the scroll is not recognized in the body of the instrument. See Ash-well v. Ayres, 4 Gratt. 283. And the same doctrine is held in West Virginia. See Smith v. Heming, 10 W. Va. 596. It had been supposed that the doctrine in Virginia that a scroll used by way of seal requires recognition in the body of the in- strument (as explained above) had no application to an actual seal, and that no recognition of the latter was necessary. But in the recent case of Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 461, it is held that an actual seal, affixed to a contract for the sale of personal property, must be recognized in the body of the contract in order to make it a sealed instrument ; and the doctrine is laid down that in Virginia an actual seal requires 6 NOTES TO CLARK ON CONTRACTS recognition in the same cases and in the same manner as does a scroll used by way of (as a substitute for) an actual seal. For criticism on this decision, see note by Prof. Lile to the case as reported in 3 Va. Law Reg. 722. For discussion of seals in Virginia, see 1 Va. Law Reg. 622; 3 Id. 282, note by Prof. Burks to Grubbs v. National Life, etc., Co., 94 Va. 589. So far we have considered the case where a scroll is apparent on the face of the writing, and the only question is, whether it was affixed thereto "by way of seal." But a different question is presented when, though there is full recognition of the instru- ment in the body thereof as a sealed instrument by the words "witness my hand and seal," or in the attestation clause it is declared to be "sealed" in the presence of the witnesses yet on inspection of the instrument neither wax, wafer, scroll, nor any mark of a seal is found upon it. Can such an instrument be deemed under seal? In the recent case of Reuscns v. Lawson, 91 Va. 226, the following language of Judge Parker in Parks v. Hewlett, 9 Leigh, 518 (taken from Sugden on Powers, p. 236), is disapproved by Buchanan, J. : "If in the attestation of an instrument it is stated to have been sealed in the presence of witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed, although no impression appear on the parchment or paper;" the learned judge declaring (at p. 509), "In the absence of other facts, I do riot think such a paper as Judge Parker describes could be held in this State to be a sealed instrument." But on the facts of Reusens v. Lazt'- son, it was held that whether a deed offered in evidence had once been sealed (no mark of a seal or scroll appearing on its face) was a question for the jury. These facts were thus stated by Buchanan, J. : "If, however, an original instrument, more than fifty years old, was offered in evidence, and was a good deed in form and substance, except that it lacked the wax, wafer, scroll, or other mark of a seal upon it, purporting to convey land, recognized the seal in the body of the instrument, was attested by witnesses who declared that it was signed, sealed, and delivered in their presence, was acknowledged as a deed before the officers taking the acknowledgment, was stated by the clerk (who certified to the official character of the officers who took the acknowledg- NOTES TO CLARK ON CONTRACTS 7 ment) to be the acknowledgment of a deed, was admitted to record as a deed, the land conveyed by it at once transferred on the land books for the purposes of taxation from the vendor to the vendee (which could not be legally done unless it was a conveyance of the land Chapter 183, Sec. 30, Rev. Code, 1819), with evidence tending to show the payment of taxes thereon, acts of ownership exercised over and possession taken of part of the land, I think the question whether or not it had been properly sealed before its delivery clearly ought to be sub- mitted to a jury. And if, under such circumstances, it would be proper to submit the question to the jury where the original is . offered in evidence, is there any good reason, where the original is lost, and a copy offered in evidence, under the same circumstances, why the question of sealing should not also be submitted to the jury? . . . The weight of authority, meager as it is, and the better reason, seem to be in favor of allowing such an instrument to go to the jury, for it to say, upon all the evidence in the cause, whether or not the original instrument was properly sealed. Whether such paper was a sealed or unsealed instrument was formerly treated as a matter of law, to be determined by the court, but seems now considered a question of fact, and is in all cases submitted to the jury. Tayl. Ev., Sec. 149 (old ed. sec. 128), note." See, also, 1 Va.' Law Reg., p. 518, note by the editor to Reusens v. Lawson. It will be observed that the decision in Reusens v. Lawson is only to the effect that "under such circumstances," the question whether an original deed, of which a copy was offered in evi- dence, was under seal should be submitted to the jury. It will require further decisions to show whether the full array of facts as recited by the Court is necessary to send the question to the jury, or whether some of them might be absent without changing the result. See the language of Judge Cooley in Stark- weather v. Martin, 28 Mich. 471, quoted in Reusens v. Lawson, 91 Va. 249. 4. Can a deed be delivered as an escroiv to the grantee or obligee himself? Clark, 55-6. See Anson on Contracts, p. 53, where the doctrine that a deed cannot be delivered as an escrow to the grantee or obligee is spoken of as the "old rule," S NOTES TO CLARK ON CONTRACTS with an intimation that in England it is not only "old" but ob- solete. But the old rule still prevails in most of the States of the Union, and is now the law in Virginia. Thus in Miller v. Fletcher, 27 Gratt. 403 (21 Am. Rep. 356), it is held that a deed, perfect on its face, cannot be delivered as an escrow to the grantee himself. But even in Virginia if on its face the deed is not perfect, then it may be delivered to the grantee him- self as an escrow. See Wendlinger v. Smith, 75 Va. 309 (40 Am. Rep. 727). And though a bond is perfect on its face, it may, nevertheless, be delivered as an escrow by a surety who has signed it to the principal debtor; for this is not a delivery to the obligee, the creditor. Nash v. Fugatc, 32 Gratt. 595 (34 Am. Rep. 780). But in such cases the surety will be bound if the principal debtor delivers the bond to the obligee, who has no notice of the unfulfilled condition. And in Humphreys v. R. Co., 88 Va. 43, it is held that a deed, though perfect on its face, may be delivered as an escrow to an officer of a corpora- tion, to take effect on the performance of a condition by the corporation, citing Devlin on Deeds, Sec. 318, where it is said that there is no such personal identity between a corporation and its officers as will prevent a delivery to the latter as an escrow. 5. What amounts to delivery of a deed? Clark, 53-4. See the great case of Doe d. Garnons v. Knight, 5 B. & C. 671, where A having written a mortgage in favor of B (who was not present, and knew nothing of the mortgage until after A's death) brought the mortgage into the presence of his (*A's) niece, and signed and sealed it, saying: "I deliver this as my act and deed." Held, this was delivery, though A did not mention B's name, and though he (A) retained the possession of the mortgage, never, at any time, handing it to his niece. And af- terwards A brought the same mortgage into the presence of his sister and said: "Take this, it belongs to Mr. B/' delivering possession to the sister. Held, that this also amounted to a legal delivery. See this case approved in Virginia in Skipwith v. Cunningham, 8 Leigh, 271. 6. What authority must an agent have in order to execute a deed in the name of his principal? Clark, 56, n. 41. The rule NOTES TO CLARK ON CONTRACTS is that an agent to make a deed must be empowered by deed. "The stream cannot rise higher than its source." So to fill a ma- terial blank left in the deed by the principal the agent must have sealed authority, for the filling of a material blank is tantamount to making a deed. Preston v. Hull, 23 Gratt. 600 (14 Am. Rep. 153). Thus in Preston v. Hull, supra, A, desiring to bor- row money, and not knowing who would lend to him on his bond, drew up a bond which he signed and sealed and delivered to his agent B, the bond being perfect except that a blank was left for the name of the as yet unknown obligee; and authorized B verbally to write in as obligee the name of any person who would advance the money. C advanced the money, and B. wrote in C's name, as obligee, and delivered the bond to C. In an action by C v. A on the bond, it was held not to be the bond of A, because B was not empowered under seal. See on whole subject, Stahl v. Berger, 10 S. & R. (Pa.) 170 (18 Am. Dec. 667-671). And see Cribben v. Deal, 21 Oreg. 211, denying the doctrine that an agent to make a deed must be empowered by deed. 7. Is Section 4 of the Statute of Frauds law in the U. S;? Clark, 64-5. Yes, in all the States. In Virginia it has been re-enacted almost in the same words, with these exceptions : (1) The doctrine of Wain v. Warlters, 5 East 10 (see Clark, pp. 86, 87, and n. 95) has been abrogated, the Virginia Statute (Code Virginia, Sec. 2840) declaring that the consideration need not be set forth or expressed in the writing, and that it may be proved (when consideration is necessary) by other evi- dence. (2) For the fourth promise of Sec. 4, Statute of Frauds ("or upon any contract or sale of lands, tenements, or heredita- ments, or any interest in or concerning them"), the Virginia Statute substitutes "upon any contract for the sale of real es- tate, or for the lease thereof for more than a year," thus avoid- ing the troublesome question, what is an "interest in or con- cerning" lands. See Anson, p. (61). The Virginia Statute in- corporates the provisions of Lord Tenterden's Act, 9 Geo. 4, c. 14, Sec. 1 (1829), that no action shall be brought "to charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade or deal- 10 NOTES TO CLARK ON CONTRACTS ings of another, to the intent or purpose that such other may obtain thereby credit, money or goods ; or to charge any person upon a promise made after full age to pay a debt contracted during infancy; unless such promise, representation or ratifi- cation, or some note or memorandum thereof, be in writing, and signed by the party to be charged thereby or his agent." (The English Infants' Relief Act, of 1874, has not been adopted in the United States. See Anson on Contracts, p. 108.) By Code Virginia, Sec. 2922, a new promise in writing, or an ac- knowledgment in writing from which a promise to pay may be implied, is required in order to remove the bar of the Statute of Limitations as to money due on an award or by contract. 8. What is such a promise "to answer for the debt of an- other" as is required to be in writing signed, by Sec. 4 of the Statute of Frauds? Clark, 66-72. Several requisites must con- cur : ( 1 ) The promise must be made to the creditor. A promise to the debtor to pay his debt for him is not within the statute ; and so, if on valuable consideration, is binding though made verbally. (See Eastwood v. Kenyan, 11 Ad. & E. 438.) The reason why a promise to save another harmless from the con- sequences of his acts (Indemnity, Clark, 70), does not require writing is that such promise is made to him who is to become liable (the quasi debtor), and not to him to whom the liability will be incurred (the quasi creditor). In the latter case, writ- ing is required. (2). The promise must be to pay a debt as guarantor for which another person is primarily liable. (Clark, 67.) Thus in Hendricks v. Robinson, 56 Miss. 694 (S. C. 31 Am. Rep. 382), the promise of Dulaney to pay Robinson for the goods supplied Hendricks, did not require to be in writing as Hendricks was never liable at all, the credit being given en- tirely and solely to Dulaney, though they were delivered by his order to Hendricks. And the subsequent promise by Hendricks to pay for the goods did require to be in writing; for it was to answer for the debt of another (that of Dulaney), and besides it was void for lack of consideration, the only consideration be- ing moral, if indeed there was even a moral obligation on Hen- dricks to pay under the circumstances. (3). The principal liability, while it may be prospective, must be real, i. e., it must NOTES TO CLARK ON CONTRACTS 11 be incurred at some time. Thus in Mountstephen v. Lakeman L. R. 7 H. L. 17, a contractor (the plaintiff) offered to make a side-drain into the main sewer for the defendant if he or the town would be responsible. The defendant said: "Make it and I will see you paid." The town had never authorized the con- struction of the side-drain, and it refused to assume the lia- bility. It was held that the defendant was liable, without writ- ing, as principal debtor, the words, "I will see you paid" impos- ing a primary liability on himself. But it was said that even if the defendant's promise had been collateral (e. g., if the town won't pay you, I will," etc.), still no writing would have been required. The town was never responsible, but only himself. So that his promise could not be to answer for the debt of an- other within the meaning of the Statute of Frauds. Clark, 67. (4). The liability of the original debtor must continue. Thus in Goodman v. Chase, 1 B. & Aid. 297, the defendant prom- ised the creditor to pay the debt if the creditor would release the debtor from prison, where he was confined for the debt under a writ of ca. sa. (now abolished). The law was that such release of a debtor operated ipso facto to discharge the debtor from his debt. Thus the release of the debtor extin- guished his debt and left the defendant alone liable as principal and not for the debt of another. So the defendant was held liable on his promise without writing. Clark, 68. In addition to the above, it has been held in some cases that where the promise to pay the debt of another arises out of some new and original consideration, it is not within the Statute of Frauds. See Smith on Contracts (7th Ed.) 112; Hopkins v. Richardson, 9 Gratt. 494; Wright v. Smith, 81 Va. 777. For an examination of this doctrine, see Harriman on Contracts, 197, where various distinctions are suggested. The doctrine is repudiated in England; and see Noyes v. Humphries, 11 Gratt. 636, at p. 645, per Allen, P. For the doctrine where "the leading object of the promisor is not to become guarantor or surety for the debtor, but to sub- serve some purpose of his own," see Clark, 71. 9. When is an agreement "not to be performed within the space of one year from the making thereof"? Clark, 77-82 12 NOTES TO CLARK ON CONTRACTS See Warner v. Texas, etc., R. Co., 164 U. S. 418, where the law is thus laid down as stated in the headnote: "The clause of the Statute of Frauds which requires a memorandum in writ- ing of 'any agreement not to be performed within the space of one year from the making thereof/ applies only to agreements which, according to the intention of the parties, as shown by the terms of their contract, cannot be fully performed within a year, and not to an agreement which may be fully performed within the year, although the time of performance is uncertain, and may probably extend, and may have been expected by the parties to extend, and does in fact extend, beyond the year." Clark, 78-9 and notes. The agreement in Warner v. Texas, etc., R. Co., supra, was that if Warner would grade the ground for a switch, and put on the ties at a certain point on the railroad, the railroad com- pany would put down the rails, and maintain the switch for Warner's benefit, for shipping purposes, as long as he needed it. The court said (p. 434) : "If within a year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad com- pany would have been no longer under any obligation to main- tain the switch, and the contract would have been brought to an end by having been fully performed." See in accord Richmond, etc., R. Co. v. Richmond, etc., R. Co., 96 Va. 670. The case of Warner v. Texas, etc., R. Co. criticises, and vir- tually overrules, the case of Packet Co. v. Sickles, 5 Wall. 580 (cited in Clark, 79, n. 60), where the Packet Company agreed to attach a patented contrivance, known as "the Sickles cut-off," to one of its steamboats, and, if it should effect a saving in the consumption of fuel, to use it on that boat "during the con- tinuance of the patent [12 years], if the boat should last so long ;" and it was held that the agreement was within the Statute of Frauds on the grounds that it was a "contract not to be per- formed within the year, subject to a defeasance by the happen- ing of a certain event [the destruction of the boat] which might not occur within that time." But in the Warner Case, the con- struction of the language in the Sickles Case is declared to be, not for 12 years, subject to defeasance on the destruction of NOTES TO CLARK ON CONTRACTS 13 the boat as a condition subsequent, but until the lapse of 12 years, or until the destruction of the boat, whichever shall first happen, making a double limitation, so that on the happening of either event the agreement would be performed. The Court says : "The terms 'during the continuance of and 'last so long' would seem to be precisely equivalent; and the full performance of the contract to be limited alike by the life of the patent and the life of the boat." It is added : "It is difficult to understand. . . . . how a contract to use an aid to navigation upon a boat, so long as she shall last, can be distinguished, on principle, from a contract to support a man .so long as he shall live, which has often been decided, and is generally admitted, not to be within the Statute of Frauds." Clark's distinction between "terminated" and "performed" (see p. 79) can be better understood by considering whether the contract, terminated or discharged in both cases, is termi- nated by performance or terminated without performance. In the language of Harriman (Contracts, p. 202) : "A distinc- tion should be drawn between the case of a contract to do some- thing until the happening of a certain event, which may happen within the year, and that of a contract to continue for more than one year, but with a proviso that on the happening of a given event, the contract shall be discharged. In the former case there is a limitation, in the latter a condition subsequent." When there is a limitation, the happening of the event termi- nates the contract by performance, so that the case is not within the statute, but when there is a condition subsequent, the non- performance of the condition, or the happening of the event, terminates (or defeats) the contract without performance, so that if the contract extends beyond one year the possibility of such defeasance within one year will not take the case out of the statute. In the application of these principles, there is a preliminary question of construction, in order to decide whether the case in- volves a limitation or condition. Thus, it is held in England and some of our States, that if a contract is by its terms not to be performed within one year, the fact that either party is given an option to terminate it, on notice, within a year, does not pre- vent the application of the statute. See Dobson v. Collis, 1 H. 14 NOTES TO CLARK ON CONTRACTS & N. 81 (cited with approval in Warner v. Texas, etc., R. Co., 164 U. S., at p. 430) ; Birch v. Earl of Liverpool, 9 B. & C. 392 ; Meyer v. Roberts, 46 Ark. 80 (55 Am. Rep. 567). On the other hand, it is laid down by Clark (p. 78) that "contracts which may be terminated at any time on notice" are not within the Statute of Frauds. See cases cited in note 56, and especially Blake v. Voigt, 134 N. Y. 69. And see the reasoning of the court in Blake v. Voigt, where a contract for more than one year, terminable upon notice, is treated as a contract to continue until the time expires, or until notice making a double limita- tion. But if the words were "for three years : provided, how- ever, that either party may terminate upon ten days' notice"- the giving of the notice would cause a defeasance, by way of condition subsequent; whereas, if the words were "until the time expires or until notice," this would clearly be a double limitation. The question, then, would seem to depend, as one of construction, upon the language of the contract. In Harriman on Contracts, p. 202, the author says: "Where the contract is to do something for more than one year, but is of a personal character, so that it does not bind the representa- tives of the promisor, the question arises whether such a con- tract is within the statute. On principle, it seems that the ques- tion is really one of construction; that if the life of the person is to be regarded as marking the limitation of the contract, the statute does not apply; but that if death is to be regarded as a condition subsequent, putting an end to the contract, the statute should apply; and that whether death is to be treated as a limi- tation or as a condition, should depend on the terms of the con- tract, and not upon any arbitrary rule. If A promises to do something as long as he lives, A's life marks the natural dura- tion of the obligation ; and so if A promises to do something as long as B lives, B's life marks the duration of the obligation. The period of life is uncertain, and may be less than one year; on principle, therefore, the statute should not apply to the cases just put. "If, however, A promises to do something for a period of five years, the contract is not performed until the five years have elapsed, and A's death, or B's death, if the contract is personal in its character, operates simply as a condition discharging the NOTES TO CLARK ON CONTRACTS 15 contract; unless the contract be of such a character that it may properly be construed as extending only during the life of A or B. Thus an agreement by A to work for B for five years is within the statute [see Lee v. Hill, 87 Va. 497], though death will discharge it; but an agreement by A to support B for five years, or to refrain from doing something for five years, is not within the statute." See Macgregor v. Macgregor, 21 Q. B. D, 424; Doyle v. Dlxon, 97 Mass. 208; Seddon v. Rosenbaum, 85 Va. 928; Thomas v. Armstrong, 86 Va. 323. And see on whole subject, 1 Va. Law Reg. 553, article by Edmund H. Bennett. 10. Is Section 17, Statute of Frauds, in force in Virginia? Clark, 97. No, it has never been in force in Virginia, nor in West Virginia, Delaware, Illinois, Kentucky, Ohio, Pennsyl- vania, Rhode Island, or Tennessee ; and sales in these States are proved as at common law. For what constitutes at common law an executed sale whereby title passes to the buyer, see Chapman v. Campbell, 13 Gratt. 105. Where the chattel is specific, and nothing remains to be done to put it into a de- liverable shape, the title may pass to the buyer, as by an executed sale, by virtue of an offer and acceptance, of a certain thing at a certain price, though there has been no tender or delivery of the chattel by the seller, and no tender or payment of the price by the buyer. See Graves, "Summary of Personal Property," 46. 11. What is consideration sufficient to support a promise? Clark, 106-110. Langdell (Summary of Contracts,' Sec. 45) says : "The consideration for a promise is the thing given or done by the promisee in exchange for the promise." It may also be defined as "Any detriment to the plaintiff incurred at the instance of the defendant, and on the faith of the defend- ant's promise." Such consideration must move, in the nature of the case, from the plaintiff (for why should A sue B because C has conferred a benefit on B, or suffered detriment at B's instance?); but it need not necessarily move to the defendant. Of course, if A confers a benefit on B this is both benefit to B and detriment to A (in parting with something of value) ; but A may suffer detriment at B's instance without benefiting B, as where at B's request, and on B's guaranty, A supplies goods 16 NOTES TO CLARK ON CONTRACTS to C. Here to part with goods on credit is a detriment to A, but C receives the goods, and B may not be at all benefited un- less it is by the satisfaction of having done a kindness to C. See Langdell, Section 64. 12. Wliat constitutes a detriment to the plaintiff (the prom- isee)? Clark, 107, 114, 121. It is not necessary that the promisee should suffer any actual injury in order to constitute such "detriment" as amounts to a legal consideration. It is enough that, in exchange for the promise of the promisor, the promisee has forborne to exercise any legal right, though its non-exercise may be rather beneficial to the promisee than injurious. The detriment consists in the restraint imposed on liberty of action and freedom of will. Thus in Earner v. Sidway, 124 N. Y. 53 (21 Am. St. Rep. 693), an uncle promised his nephew that if the latter would refrain from drinking liquor, using tobacco, swearing, and play- ing cards or billiards for money, until he should become twenty- one years of age, he, the uncle, would pay him $5,000; it was held that the promise was founded on sufficient consideration, and was therefore enforceable. 13. Example of consideration consisting in something done by the promisee in exchange for the promise (promise for an act). Clark, 13-14, 38-40. In Carlill v. Carbolic Smoke Ball Co. (1893), 1 Q. B. (C. A.) 269, the Smoke Ball Co. advertised to pay 100 to any one "who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after hav- ing used the ball three times daily for two weeks, according to the printed directions." It was added that 1,000 was deposited in the Alliance Bank, "showing our sincerity in the matter." The plaintiff used the smoke ball as required by the directions; and having afterwards contracted the influenza, she sued the Smoke Ball Co. for the 100, and was held entitled to recover. See Anson on Contracts (8th ed.), 45. 14. //, on agreement zvith the creditor to receive fifty dollars in full satisfaction of a debt of one hundred dollars, the debtor pays the fifty dollars, is the debt of one hundred dollars thereby discharged? Clark, 129-130. NOTES TO CLARK ON CONTRACTS 17 No, it is not discharged, at common law, for lack of consid- eration. See Clark, 491-2, et seq. And see in accord Seymour v. Goodrich, 80 Va. 303. The doctrine is now changed in Vir- ginia by statute taking effect May 1, 1888, by which it is enacted (Code, Sec. 2858) : "Part performance of an obligation, promise, or undertaking, either before or after breach thereof, when ex- pressly accepted by the creditor in satisfaction, and rendered in pursuance of an agreement for that purpose, though without any new consideration, shall extinguish such obligation, promise or undertaking." 15. What is ''executed" consideration? Clark, 136-7. Ac- cording to Anson the consideration of a contract may be ex- ecutory or executed, but it cannot be past. So Anson distin- guishes between an executed and a past consideration, and de- nies that the latter is sufficient to , support a contract. See Anson, p. (13), note a, where it is said: "Executed considera- tion as opposed to executory means present as opposed to fu- ture, an act as opposed to a promise." Under this head he places a contract where there is the offer of an act for a promise (completed by the acceptance of the executed con- sideration), and where there is a promise for an act (consid- eration executed on request). See p. (90). Under this head would come Smith's case "when the consideration consists in something the benefit of which the person promising has adopted and enjoyed" where Smith says the law implies both request and promise. (Smith on Contracts, 189.) But Smith's case "where the consideration consists in the person to whom the promise is made being compelled to do that which the person making it ought to have done, and was compellable to do," when also Smith says both promise and request are implied, Anson places under the head of quasi contracts, as not being real contract at all. See Anson, p. (366). This leaves of Smith's summary the case "where the consideration consists in the person to whom the promise is made having voluntarily done that which the person promising ought to have done, and was legally compellable to do," where the request will be im- plied if the promise be express; this Anson rejects as without any real consideration (p. 97). He also rejects the general 18 NOTES TO CLARK ON CONTRACTS doctrine that a past consideration will in all cases support an express promise if the consideration was moved by a previous actual request, and pronounces it unsound except in those cases where "the request is virtually the offer of a promise the precise extent of which is hereafter to be ascertained, or is so clearly made in contemplation of a promise to be given by the maker of the request that a subsequent promise may be regarded as part of the same transaction." (See p. 97.) For Clark's dis- cussion, see 136-142. 16. Is moral obligation sufficient to support a promise? Clark, 108-9. No, it has been declared to be "nothing in law." See Eastwood v. Kenyan, 11 A. & E. 446, cited in Clark, 109. In this case, the husband was sued as sole defendant by reason of his express promise, and because he had received the benefit of the plaintiff's expenditures on his wife's real estate. But the plaintiff's expenditures were not made at the wife's nor at the husband's previous request; the case therefore did not come within the doctrine of Lampleigh v. Braithivait, Clark, 138, and the promise was therefore unenforceable. If there had been con- sideration, however, the promise would have been enforceable without writing signed by the defendant; for the promise was made to the debtor to pay his debt incurred by him for the ex- penditures, and so was not within the Statute of Frauds. East- wood v. Kenyan is the leading authority for the doctrine that a promise to a debtor to pay his debt is binding without writing if only there be sufficient consideration ; but in Eastivood v. Kenyan there was no consideration. See 8, (1), supra. 17. Does Anson admit any exceptions to the doctrine laid doivn by him (p. 89), that consideration may be executory or executed, but it cannot be past? Clark, 138-142. Yes, on page (100) he recognizes and approves the doctrine that the follow- ing promises require no new consideration: (1). Promise by an infant after full age to pay a debt contracted during infancy, not for necessaries; (2). Promise by a bankrupt to pay a debt from which he has been released by a discharge in bankruptcy ; (3). Promise by a debtor to pay a debt barred by the Statute of Limitation; (4). Promise by a widow to pay a bond given by her when a married woman and therefore under the disa- NOTES TO CLARK ON CONTRACTS 19 bility of coverture. Anson's reasons for approving these ex- ceptions to the general doctrine that a past consideration will not support a promise, may be seen at pp. (100), (101). The doctrine is thus laid down in Eastwood v. Kenyan, supra : "An express promise can only revive a precedent good consid- eration, which might have been enforced at law through the medium of an implied promise [or on the original express promise] had it not been suspended by some positive rule of law; but can give no original came of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision." To illustrate. In Hendricks v. Robinson, 56 Miss. 694 (31 Am. Rep. 382), whose facts have been given under 8, (2), supra, the promise of Hendricks to pay for the goods was never en- forceable at law, for the goods were not sold to him, and his promise was utterly without consideration. But in the case of infants, bankrupts, and debtors whose debts are noiv barred by the Statute of Limitation, there was originally a binding contract on sufficient consideration, a contract which at the time of the subsequent promise would still be enforceable but for the posi- tive rule of law, which, by "legal maxim" of the common law in the case of infants, and by "statute provisions" in the cases of bankrupts and debts barred by lapse of time, denies liability. Anson says (p. 100) that "where the consideration was origi- nally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law meant for his advantage, he may renounce the benefit of that law." This statement by Anson is broad enough to embrace the case of Lee v. Muggeridge, 5 Taunton 1^6 (see Anson, p. 100) ; although the married woman's bond could never have been enforced against her (the bond of the married woman at common law being absolutely void, not voidable as in the case of an infant) ; and her promise, therefore, after she became a widow, did not merely revive precedent liability suspended by a positive rule of law, but created an original liability which had no antecedent existence. Qn this ground, the case of Lee v. Muggeridge, though not overruled in England, has been ques- tioned there, and has been disapproved of in a number of Ameri- can cases. See Anson (p. 100), note 1; Smith on Contracts (p. 20 NOTES TO CLARK ON CONTRACTS 189), note 1 at end. And see especially the opinions in Gould- ing v. Davidson, 26 N. Y. 604, where, however, the doctrine of Lee v. Mwggeridge was followed by the court. For Clark's discussion, see pp. 138-142. As to Lee v. Muggeridge, see Clark, 137, n. 145; 141, n. 165. 18. Is an infant's contract valid, void, or voidable? See Clark, 149-154. In 1 Am. Leading Cas., p. 280, in valuable note to Tucker v. Morcland, 10 Peters 58, it is said: "The numerous decisions in this country justify the settlement of the following definite rule that is subject to no exception: (1) The only contract binding on an infant [i. e. valid] is the im- plied contract for necessaries; (2)- the only act which he is under a legal incapacity to perform [i. e. void] is the appoint- ment of an attorney or other agent; (3) all other acts or con- tracts, executed or executory, are voidable or affirmable by him after full age at his election [i. e. voidable]." This rule is quoted with approval in Mustard v. Wohlford, 15 Gratt. 337. In the recent case of Dellinger v. Foltz, 93 Va. 729, the court adopts the doctrine stated above that the appointment of an attorney or other agent by an infant is not merely voidable but void. It is there said, by way of dictum, however, that it is "well settled that an infant cannot empower an agent or at- torney to act for him, and that such appointment would be void. Nor can he affirm what one has assumed to do for him, for he cannot ratify what he could not authorize." But the soundness of this doctrine has been denied in some cases, and on principle it would seem that there should be only two classes of contracts by infants, viz.: (1) those which are valid, (2) those which are voidable; thus enabling him to affirm the latter class, if after full age he should deem them beneficial. For discussion, see monographic note to Craig v. Van Bebbcr (Mo.), 18 Am. St. Rep. 574; and especially 3 Va. Law Reg. 610, note by Prof. Lile, citing late case of Coursolle v. Weyerliauser (Minn.), 72 N. W. 697, holding that a power of attorney by an infant to convey his land was voidable and not void, and so capable of ratification by him after full age. Under the head of valid contracts, Clark (pp. 151-2) adds to the implied contract for necessaries, the following as binding upon an infant. NOTES TO CLARK ON CONTRACTS 21 (a) Quasi contracts created by law. (b) Contracts under authority of statute authorised by law. (c) Contracts to do what infant is legally bound to do com- pellable by law. (d) Executed contract where other party cannot be put in statu quo some jurisdictions conflict. 19. What are the consequences of the avoidance by an infant of his contract? Clark, 171-174. For clearness of view, con- sider these four cases: 1. When infant sells his property on credit, and receives the adult's note for the price, or other promise to pay. Then if the infant avoids the contract, the action is by /. v. A. to re- cover I.'s property. I. can recover, of course, for the sale is voidable by infant, and as he has received nothing from A., there is no question of restitution by I., unless it be to sur- render A.'s note for the price. 2. When infant sells property to adult for cash, and re- ceives the purchase money. Action by /. v. A. to recover his property. I. can recover, of course, on the return of the pur- chase money; for the contract is voidable by the infant. But suppose during infancy I. has squandered purchase money, can he still recover his property, making no restitution to adult? The better opinion is that I. can recover ivithout restitution. For otherwise the policy of the law as to the incompetency of infants to bind themselves by a sale of their property would be frustrated. For if the infant could not recover his property with- out returning purchase money squandered during infancy, the right to avoid would be futile; for the infant would be obliged to mortgage his property to its value, or sell it when recov- ered, in order to repay the purchase money to him who bought from infant during infancy. 3. When infant buys property from adult on credit and gives adult note for the price. It is here supposed that the contract is not for necessaries, for otherwise the infant would be bound on his implied contract to pay what the necessaries were worth (quantum valebant}. But when the purchase is not of neces- saries, if action be brought by A. v. I., on note after infant has reached full age, I. can plead infancy, and thus avoid paying for 22 NOTES TO CLARK ON CONTRACTS the property, unless I. has, after full age, signed a written promise to pay the debt, or ratified his promise in writing, as there is no "Infants' Relief Act" in the United States. But if infant still has property and would avoid his liability to pay for it, he must return it to adult; for it is a settled rule that an in- fant cannot be permitted to retain property purchased by him, and still in his possession, and at the same time repudiate the contract on which he received it. But where the property can- not be returned because wasted or consumed by the infant dur- ing infancy, then the right of the infant is settled to plead in- fancy, and avoid payment, leaving the seller to bear the loss. This is the ordinary case where a foolish tradesman sells an in- fant goods not necessaries on credit, and has nothing to rely on but the honor of the infant. '. 4. Where the infant buys property (not necessaries) from adult, and pays cash for it. It will be seen that the adult has nothing to ask; he cannot avoid; he has received payment, and has nothing to sue for. But the action is by /. v. A. to recover back his money. Certainly I. can do so, if he can return the property; for the contract is voidable. But suppose the infant has not the property, can he recover his purchase money without placing the adult in statu quo? Upon this point the cases are in conflict, the weight of modern authority, at least in the United States, favoring the absolute right of the infant to recover his money, with restitution to adult when practicable, and without it when it is not. See Clark, 173-4, Lemmon v. Beeman, 45 Ohio St. 505; Morse v. Ely, 154 Mass. 458; note to Craig v. Van Bcbber, 18 Am. St. Rep. 574. It is believed, however, that the better view is, in accordance with the English decisions, and some of the American, that unless the infant can return the property he cannot recover the purchase money. See cases cited by Clark, p. 174, n. 151, and especially Adams v. Beall, 67 Md. 53 (1 Am. St. Rep. 379). Usually the infant cannot return the property; so that if this view be correct, the wise tradesman who sells to an infant for cash, need have little fear of avoidance; and if it comes, it is coupled with restitution which robs it of its terrors. Compare these two cases. 1. Infant sells property, and receives money. NOTES TO CLARK ON CONTRACTS 23 2. Infant buys property, and pays money. In each case, the contract is executed on both sides. But under (1) the infant can recover back his property, and this without restitution, unless the purchase money remains in his possession; whereas under (2) unless infant can return prop- erty, the better opinion is that he cannot recover money. The distinction is thus explained by Prof. J. Randolph Tucker: When infant sells his property, the buyer takes a de- feasible title, and nothing can prevent infant's right to recover; when infant buys property, it is money he seeks to recover, and he cannot recover it except in assumpsit, not as property, but as money. But unless the infant retain the property bought, and tender a return, there is nothing to raise an assumpsit. It in- volves no question of defeasible title, but of obligation to repay, and such obligation will not be implied, even for the infant, unless ex