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 
 
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 UNIVERSITY OF VIRGINIA 
 
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 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 <zquo et bono the adult should not retain the money 
 paid, as in case of fraud, where infant has given his money for 
 nothing. But under (1), though what the infant retains the 
 law raises a duty against him to return, when he repudiates the 
 sale, and reclaims his property, yet the law will not raise an as- 
 sumpsit against him to return the purchase money which he re- 
 ceived as infant, if he has wasted it during infancy on account 
 of the very incompetency which the law attributes to him. 
 
 20. How may an infant ratify his voidable contract in Vir- 
 ginia? Clark, 166-9. By C. V. 2840: "No action shall be brought 
 . . . to charge any person upon a promise made, after full 
 age, to pay a debt contracted during infancy, or upon a ratifi- 
 cation, after full age, of a promise or simple contract made dur- 
 ing infancy, . . . unless the promise ... or ratification, or 
 some memorandum or note thereof, be in writing, and signed 
 by the party to be charged thereby, or his agent." 
 
 For discussion of the construction of this rather crabbed 
 statute, see 5 Va. Law Reg. 267, note by Prof. Lile. His con- 
 clusions are as follows : 
 
 1. A new express promise, after full age, to pay a debt con- 
 tracted during infancy, must be in writing. Ward v. Scherer, 96 
 Va. 318 (31 S. E. 518).
 
 24 NOTES TO CLARK ON CONTRACTS 
 
 2. A new express promise, after full age, to perform a con- 
 tract made during infancy not in the nature of a debt [e. g. a 
 contract to do a collateral thing such as to sell goods or perform 
 services], need not be in writing. 
 
 3. An implied promise [i. e. language from which a promise 
 may be implied], after full age, to perform any contract made 
 during infancy, must be in writing. 
 
 4. Any conduct after full age (other than by words) indicat- 
 ing an unequivocal intention on the part of the infant to ratify a 
 contract made during infancy, subsequent repudiation of which 
 would operate as a fraud upon the other contracting party, will 
 amount to a ratification without a writing. 
 
 5. When the infant, after age, becomes plaintiff to recover the 
 consideration paid on a contract made during infancy, a ratifica- 
 tion may be shown as at common law. The statute applies only 
 where the infant is the "party to be charged" that is, the de- 
 fendant. Hilton v. Shepherd (Me.), 42 Atl. 387. 
 
 The mode of ratification of an infant's contract prescribed by 
 the Virginia statute is substantially the same as that required in 
 England by Lord Tenterden's Act, 9 Geo. IV. c. 14 (1829). 
 This act has now been repealed (Statute Law Revised Act, 
 1875), having been rendered unnecessary by the Infants' Re- 
 lief Act of 1874 to which reference has already been made. 
 This act, says Anson, "appears to have been designed not merely 
 against the results of youthful inexperience, but against the 
 consequences of honorable scruples as to the disclaimer of con- 
 tracts upon the attainment of majority." Its provisions are as 
 follows (8th ed., 234) : 
 
 1. "All contracts, whether by specialty or by simple contract, 
 henceforth entered into by infants for the repayment of money 
 lent or to be lent, or for goods supplied or to be supplied (other 
 than contracts for necessaries), and all accounts stated with 
 infants, shall be absolutely void; provided always that this en- 
 actment shall not invalidate any contract into which an infant 
 may, by any existing or future statute, or by the rules of the 
 common law or equity, enter, except such as now by law are 
 voidable." 
 
 2. "No action shall be brought whereby to charge any person
 
 NOTES TO CLARK ON CONTRACTS 25 
 
 upon any promise made after full age to pay any debt contracted 
 during infancy, or upon any ratification made after full age of 
 any promise or contract made during infancy, whether there 
 shall or shall not be any new consideration for such promise or 
 ratification after full age." 
 
 No such legislation as the above has been adopted in the 
 United States, and adults may ratify their voidable contracts 
 made during infancy; but by the weight of authority, such rati- 
 fication is not binding if it was made in ignorance of the legal 
 right to repudiate the contract. See 4 Va. Law Reg. 623, note 
 by Prof. Lile, commenting on Bestor v. Hickey (Conn.), 41 Atl. 
 555, where the contrary was held. As to an infant's liability 
 for fraudulent representation as to age, see 2 Va. Law Reg. 466, 
 note by Prof. Lile; also Ibid, p. 724, article by Mr. David H. 
 Leake. 
 
 21. What is mistake as to the nature of the transaction? See 
 Clark, 196-8, citing the great case of Foster v. Mackinnon, L. 
 R. 4 C. P. 704, where a man signed an endorsement of a bill 
 of exchange under the impression that it was only a common law 
 guaranty. Here there was no intention at all to sign an en- 
 dorsement. The same doctrine is applicable to cases of fraud, 
 as where a man is asked for his autograph, and by a trick his 
 name is obtained to a deed or other contract. In this case the 
 u'ill does not go with the deed, the fraud is said to be in the 
 factutn, and if the party deceived is sued on the deed he can 
 plead non cst factum, i. e., not his deed. But fraud in the fac- 
 tum must be distinguished from fraud in the inducement, where 
 the signer intends to sign what he does sign, but is led to do 
 so by false statements ; where the will goes with the deed, 
 but is led so to do by deceitful inducements. In this class of 
 cases the contract or deed is not void but voidable only. (See 
 Clark, 238-9). The consequence is that if A sells property to 
 B, meaning so to do, but relying on B's false statements as the 
 inducement to the sale, B, nevertheless, by the act and will of 
 A, gets the legal title to the property, which remains in B until 
 avoidance of the sale by A. If in the meantime, i. e., before 
 avoidance by A, B sells the property to C, for value and without 
 notice of B's fraud, C gets a good title as against A, who must
 
 26 NOTES TO CLARK ON CONTRACTS 
 
 look to B alone for damages. For B has title to the property, 
 and since C receives it from B, C is secure both at law and in 
 equity; for what can be alleged against the holder of the legal 
 title, who receives it with clean hands, and for valuable consider- 
 ation ? 
 
 Thus in Moyce v. Newington, 4 Q. B. D. 32, B purchased and 
 obtained delivery of certain sheep from A by giving A a fictitious 
 check. Before A had done anything to avoid the contract with 
 B, B sold the sheep to C, who bought them bona fide and for 
 value. It was held that A was not entitled to take away the 
 sheep from C (as A had done), but was liable to an action by 
 C for so doing. Here B had gotten title from A, and so C had 
 gotten title from B. But contrast Moyce v. Ncivington with 
 Cundy v. Lindsay, 3 App. Cas. 459, where a sharper named 
 Blenkarn took a room at No. 37 Wood St., London, on which 
 street, at No. 123, there was the respectable firm of Blenk/ron 
 & Sons. Blenkarn then ordered 250 dozen cambric handkerchiefs 
 from Lindsay & Co., of Belfast, who supplied the handkerchiefs 
 under the impression that they were selling to Blenkiron & 
 Sons, Blenkarn having, with fraudulent purpose, so written 
 "Blenkarn & Co." as to make it look like "Blenkiron & Co." 
 (that concern being known to Lindsay & Co.). Blenkarn sold 
 the handkerchiefs to Cundy, who bought for value, without no- 
 tice of the fraud. In an action by Lindsay against Cundy, it 
 was held that no title had ever passed to Blenkarn, who, there- 
 fore, could give none to Cundy. Hence Lindsay & Co. were 
 entitled to recover the handkerchiefs. Lindsay & Co. never 
 meant to sell them to. Blenkarn, and Blenkiron & Sons, to whom 
 they did mean to sell, never meant to buy them; hence there 
 had never been a sale at all. 
 
 22. Is a mistake as to the existence of a right a mistake of laic, 
 and so ic.'ithout remedy? See Clark, 206, n. 44, citing Cooper v. 
 Phibbs, L. R. 2 H. L. 170. The true doctrine is, as stated by 
 Lord Westbury, that a "private right of ownership is a matter 
 of fact (though) it may be the result also of matter of law." 
 On the difficult question, "What mistakes are, and what are not, 
 ground for relief?" Prof. Pomeroy (2 Pom. Equity, Sees. 843- 
 '49) offers the following rules :
 
 NOTES TO CLARK ON CONTRACTS 27 
 
 Rule I. When the parties with knowledge of the facts, and 
 without any inequitable incidents, as fraud, concealment, mis- 
 representation, undue influence, violation of confidence, etc., 
 have made an agreement or other instrument as they intended it 
 should be, and the writing expresses the transaction as it was 
 understood and designed to be made, then equity will not grant 
 relief, although one of the parties (or, as many cases hold, both 
 of them) have mistaken its legal meaning, scope and effect. An 
 example under this rule is found in the celebrated case of Hunt 
 v. Rousmanicre's Adm'rs, 8 Wheaton, 174. (S. C. 1 Peters 1.) 
 In that case a power of attorney to execute a bill of sale of a 
 ship was taken by a creditor from a debtor under the distinct 
 impression, induced by the advice of counsel, that it would be 
 as valid a security, under all circumstances, as a mortgage. The 
 debtor subsequently died, and as the power of attorney was re- 
 voked by his death, the security of the creditor was invalidated. 
 But it was held (in strict conformity, it will be seen, with Rule I, 
 supra) that the misapprehension of the parties as to the legal 
 effect of the instrument was not ground for relief, even in equity, 
 and of course it would not be at common law. (See Bispham's 
 Equity, Sec. 187.) 
 
 Rule II. But when a person is ignorant or mistaken as to his 
 own antecedent or existing legal rights, interests, estates, duties, 
 liabilities or other relations, either of property or contract, or 
 personal status, and enters into some transaction, the legal effect 
 and scope of which he correctly understands with reference to 
 such rights, etc., but which transaction he would never have 
 entered into if he had known the nature and extent of his rights, 
 etc., then equity will grant relief, treating the mistake as analo- 
 gous to, if not identical with, a mistake of fact. An example 
 under this second rule is Bingham v. Bingham, 1 Vesey, Sr., 
 126, where the defendant sold to the plaintiff an estate which in 
 fact belonged to the plaintiff already, but which both parties be- 
 lieved, under a mistake caused by a misconception of law, to 
 belong to the defendant. Relief was granted in equity, and re- 
 turn of the purchase money was decreed. See Adams' Eq. 190. 
 And in Lansdoivn v. Lansdown, Mosley, 364, where the eldest 
 of three brothers divided land, of which the second brother had 
 died seised, with a younger brother under the mistaken impres-
 
 28 NOTES TO CLARK ON CONTRACTS 
 
 sion that the latter and not himself was heir at law to the second 
 brother, it was held that he was entitled to relief in equity, and 
 his conveyance to the younger brother was set aside. It will be 
 seen that the elder brother correctly understood the nature and 
 effect of his conveyance to his younger brother, but he never 
 would have made it if he had not been ignorant of the nature 
 and extent of his own existing rights in the property. So his 
 mistake was one of private right and not of general law, which 
 distinguishes the case from Hunt v. Rousmaniere's Admrs, 
 supra. See Z oilman v. Moore, 21 Gratt. 313, criticised in 2 
 Pom. Equity, note to Sec. 849. 
 
 23. What is the practical test by which to distinguish fraud 
 from innocent misrepresentation? See Clark, 209, where the 
 answer is that "fraud gives rise to an action ex delicto, while 
 innocent misrepresentation does not. Fraud, besides being a 
 vitiating element in contract, is a tort or wrong apart from 
 contract, and may be treated as such by bringing an action of 
 deceit. Misrepresentation in exceptional cases may invalidate a 
 contract, but will not support an action of deceit." A good ex- 
 ample of innocent misrepresentation is found in Grim v. Byrd, 
 32 Gratt. 293, where Grim, induced so to do by an innocent mis- 
 representation, conveyed to Byrd a parcel of land and the mill 
 thereon, known as "Craney Island Mills," in consideration of 
 twenty shares of stock of the Rawley Springs Co. Rescission 
 was decreed and the court held "that a false [i. e. unfounded] 
 representation of a material fact, constituting an inducement to 
 the contract on which the purchaser had the right to rely [and 
 did rely], is a ground for a rescission by a court of equity, 
 although the party making the representation was ignorant 
 whether it was true or false [i. e. though it was not fraudulently 
 made, and though no action could be brought to recover damages 
 on the ground of fraud]." 
 
 Grim v. Byrd has been followed" in numerous cases in Virginia. 
 And it is also held, under C. V. 3299, allowing certain equitable 
 defences to be made at law, that the defendant when sued in an 
 action at law can defend himself by a special plea, verified by 
 affidavit, that he was induced to enter into the contract by mis- 
 representations of material facts; and the plea is good without
 
 NOTES TO CLARK ON CONTRACTS 29 
 
 any allegation that the plaintiff knew that the allegations were 
 false. See Guarantee Co. v. National Bank, 95 Va. 480, where 
 it is said by Judge Riely (at p. 491), speaking of misrepresenta- 
 tions of fact : "it was immaterial whether the plaintiff knew that 
 they were false, or honestly believed them to be true. If a party 
 innocently misrepresents a material fact by mistake, the effect 
 is the same on the party who is misled by it as if he who inno- 
 cently made the misrepresentation knew it to be positively false. 
 The real question in such a case is not what the party making 
 the representation knew or believed, but was the representation 
 false [i. e. unfounded in fact], and was the other party misled 
 "by it." To this proposition are cited (besides Grim v. Byrd) 
 Lynchburg Fire, etc., Co. v. West, 76 Va. 575 ; Wilson v. Carpen- 
 ter, 91 Va. 183; Max Meadows, etc., Co. v. Brady, 92 Va. 77. 
 To the same effect are Orr v. Goodloe, 93 Va. 263; Wren v. 
 Moncure, 95 Va. 369, and other cases. 
 
 But it must be remembered that in none of these cases of 
 innocent misrepresentation was an action at law brought for 
 damages by reason of fraud. They were suits in equity for 
 rescission, or actions upon contract where the defendant relied 
 on the misrepresentation as a defence. For the requisites to 
 enable the plaintiff to recover damage for fraud, see the next 
 note. 
 
 24. What is necessary to constitute fraud for which an action 
 for deceit will lie to recover damages? See Clark, 229-230, 
 where it is said, quoting from Lord Cairns : "If persons take 
 upon themselves to make assertions as to which they are ignorant 
 whether they are true or untrue, they must in a civil point of 
 view be held as responsible as if they had asserted what they 
 knew to be untrue." But this language of Lord Cairns is criti- 
 cised in the great case of Derry v. Peek, L. R. 14 App. Cas. 337 
 (decided in 1889), where it is said by Lord Herschell: "This 
 must mean that the persons referred to were conscious when 
 making the assertion that they were ignorant whether it was 
 true or untrue, for if not, it might be said of any one who in- 
 nocently makes a false statement. He must be ignorant that it is 
 untrue, for otherwise he would not make it innocently. He must 
 be ignorant that it is true, for by the hypothesis it is false."
 
 30 
 
 But when the defendant asserts a fact to exist, or not to exist, 
 when he is conscious that he has no knowledge on the subject, 
 his statement if false is also fraudulent; for he affirms knowledge 
 when he is conscious of ignorance. He says he knows when he 
 knows that he does not know, which is clearly moral fraud, and 
 when it works an injury is a sufficient scienter to support an 
 action for deceit. But Derry v. Peck, supra, holds that (except 
 in a few anomalous cases where a man is bound to know the 
 facts, and therefore the scienter is presumed) a statement can 
 never be fraudulent if made by the defendant ivith an honest 
 belief in its truth, and that this is so though the statement is 
 made carelessly and without reasonable ground to believe it 
 true, so long as the judge or jury believe it was made bona fide. 
 It is said in Derry v. Peek that "the authorities establish the 
 following propositions : First. In order to sustain an action of 
 deceit, there must be proof of fraud, and nothing short of that 
 will suffice. Secondly. Fraud is proved when it is shown that 
 a false representation has been made (1) knowingly, (2) with- 
 out belief in its truth, or (3) recklessly, careless whether it be 
 true or false." 
 
 The doctrine of Derry v. Peek that a false statement made 
 through carelessness, and without reasonable ground for believing 
 it to be true, may be evidence of fraud, but does not necessarily 
 amount to fraud, has been changed in England, as to Directors 
 of Companies, by the "Directors' Liability Act, 1890." Some 
 of the recent American cases adopt, others reject the doctrine. 
 See 14 Harvard Law Review, 184. For cases, and further dis- 
 cussion, see hereafter under "Torts." 
 
 25. Does a penalty always imply prohibition? See Clark 261, 
 et seq. In Bartlctt v. Finer, Carthew 252, it was said by Lord 
 Holt: "Every contract made for or about any matter or thing 
 which is prohibited and made unlawful by statute is a void con- 
 tract, though the statute does not mention that it shall be so, 
 but only inflicts a penalty on the offender, because a penalty 
 implies a prohibition, though there are no prohibitory words in 
 the statute." But in Harris v. Runnels, 12 How. 79, whether 
 a contract to do an act penalized by statute is to be treated as 
 void or not, is said to depend, in all cases, on the legislative in-
 
 NOTES TO CLARK ON CONTRACTS 31 
 
 tent, to be collected from all the circumstances of the case, the 
 presumption being prima facie that such contract is void unless 
 the contrary appears to be the true meaning of the statute. Thus 
 in Harris v. Runnels, supra, an action was brought for the price 
 of certain slaves, and as a defense it was pleaded that no certifi- 
 cate had been obtained, previous to bringing the slaves into the 
 State of Mississippi, showing that they had not been guilty of 
 any crime, etc., as was required by a law of that State, which 
 imposed a fine of $100 for every slave so purchased and brought 
 in. But the court held that the plea was bad, as on the true 
 construction of the statute the penalty was not intended to avoid 
 the contract. So in Nicmeyer v. Wright, 75 Va. 239, it was 
 held, citing Harris v. Runnels, that the Virginia statute, which 
 requires under heavy penalty, certain things to be done by per- 
 sons selling commercial fertilizers (labels expressing the com- 
 ponent parts of such fertilizers, etc.) was not intended to avoid 
 the contract for such sale for failure to comply with its pro- 
 visions. The seller recovered on the contract in an action at 
 law, though he had not complied with the directions of the 
 statute ; it being said that the mere imposition of a penalty for 
 doing or omitting to do an act, does not of itself, in every case, 
 necessarily imply an intention of the legislature that every con- 
 tract in contravention of the statute shall be void, in the sense 
 that it is not to be enforced in a court of justice. 
 
 26. Arc arrangements to purchase property on joint account 
 at an auction sale valid? Clark 258. See Barnes v. Morrison 
 (97 Va. 372), 5 Va. Law Reg. 373, where the cases are ex- 
 amined, and the law thus declared, as stated in the head-note: 
 "Where property is to be sold at auction, and especially at a 
 judicial sale, or at a sale in the course of govenmental 'adminis- 
 tration, a secret combination and agreement amongst persons 
 interested in bidding to refrain from bidding, in order to pre- 
 vent competition and to lower the selling price of the property, 
 is illegal. But it is not necessarily corrupt for two or more 
 persons to agree that one of them shall purchase for their joint 
 benefit property sold at a judicial or other public sale. Whether 
 such a combination is lawful or otherwise depends upon the in- 
 tention of the parties, and the effect of the arrangement as as-
 
 32 NOTES TO CLARK ON CONTRACTS 
 
 certained from the evidence in each particular case." And see 
 editorial note on Barnes v. Morrison, by Prof. Lile, 5 Va. Law 
 Reg. 414, where it is said : "The real test in such cases seems to 
 be whether the combination was entered into bona fide to carry 
 out some particular and lawful end desired by the participants, 
 or to accommodate the peculiar circumstances, financial or other- 
 wise, of the parties. If so, even though the effect may have 
 been to depress the bidding, the motive being a lawful one, 
 the transaction will be sanctioned as lawful." 
 
 For a recent case by the Supreme Court of the United States, 
 declaring illegal a combination between two contractors in put- 
 ting in bids for the construction of public works, see McMullen 
 v. Hoffman, 174 U. S. 639. 
 
 In Camp v. Bruce, 96 Va. 521, it is held that a purchaser at a 
 judicial sale cannot, before confirmation, sell his bargain to 
 another at an advance price. The court said: "We have no 
 statute declaring' that contracts like the one under consideration 
 are unlawful, yet under the principles of the common law, any 
 contract that is made for the purpose of, or whose necessary 
 effect or tendency is, to lessen competition and restrain bidding 
 at judicial sales, is held to be illegal, because opposed to public 
 policy. The object in all such sales is to get the best price that 
 can be fairly had for the property. The policy of the law, there- 
 fore, is to secure such sale from every kind of improper influ- 
 ence. To allow one bidder to buy off another, which is but a 
 species of bribery, and thus prevent the property from bringing 
 the best price [by an upset bid and a resale] is condemned by the 
 law; and the courts will not enforce contracts founded in such 
 practices." 
 
 As to .the effect of illegality, the court said : "The law refuses 
 to enforce illegal contracts as a rule, not out of regard for the 
 party objecting, nor from any wish to protect his interest, but 
 from reasons of public policy. Whenever, therefore, the ille- 
 gality of the contract appears, whether alleged in the pleadings, 
 or made known for the first time in the evidence, it is fatal to 
 the case. That defect cannot be gotten rid of either by failure 
 to plead it, or by agreeing to waive it in the most solemn man- 
 ner. The law will not enforce contracts founded in its viola- 
 tion."
 
 NOTES TO CLARK ON CONTRACTS 33 
 
 27. Contracts in violation of Sunday Laws. See Clark 265-270. 
 The Virginia Statute, Code, Sec. 3799, as amended by Va. Acts 
 1908, c. 180, is as follows: "If any person on the Sabbath day be 
 found laboring at any trade or calling, or employ his apprentices 
 or servants in labor, or other business, except in household or 
 other work of necessity or charity, he shall be deemed guilty of 
 a misdemeanor, and upon conviction thereof shall be fined not 
 less than $5 for each offence. Every day any person or servant 
 or apprentice is so employed, shall constitute a distinct offence, 
 and the Court in which or the justice by whom any judgment 
 of conviction is rendered, may require of the person so convicted 
 a recognizance in a penalty of not less than $100 nor more than 
 $5,000, with or without security, conditioned that such person 
 shall be of good behavior, and especially to refrain from a repeti- 
 tion of such offence, for a period not exceeding 12 months." 
 See Sec. 3800 for exceptions as to Jews who observe the seventh 
 day of the week. See also Sec. 3801, forbidding transportation 
 of freight by railroads on Sunday, which has been declared 
 constitutional by the Virginia Court of Appeals, even as to freight 
 trains engaged in interstate commerce. See Norfolk, etc., R. 
 Co. v. Com. of Virginia, 93 Va. 749 (decided June 11, 1896), 
 overruling Norfolk, etc., R. Co. v. Commonwealth, 88 Va. 95. 
 See also Hennington v. State of Georgia, 163 U. S. 299, declar- 
 ing a similar statute of the State of Georgia constitutional, in 
 the absence of any Act of Congress governing the subject. But 
 see now Va. Acts 1910, p. 59, c. 42, permitting trains to be run 
 on Sunday through the State of Virginia, withqut stopping at 
 local stations for interchange of freight, where such trains con- 
 stitute interstate freight trains exclusively. See also Acts 1910, ( 
 p. 471, c. 310. 
 
 28. Usurious Contracts. See Clark 270. The usury laws 
 were abolished in England by 17 and 18 Viet. c. 90 (1855). 
 But such laws are in force in most of the United States. The 
 present Virginia Statute (in force since 1874) is as follows 
 (Code, Sec. 2817) : "Legal interest shall continue to be at the 
 rate of six dollars on one hundred dollars for a year, and pro- 
 portionally for a greater or less sum, or for a longer or shorter 
 time; and no person upon any contract shall take for the loan
 
 34 NOTES TO CLARK ON CONTRACTS 
 
 or forbearance of money or other thing above the value of such 
 rate." And by section 2818 it is declared that all contracts, etc., 
 violating the preceding section "shall be deemed to be for an 
 illegal consideration as to the excess beyond the principal amount 
 so loaned or forborne." The effect of this is that if the lender 
 of money contracts for over six per cent, interest, he can collect 
 only the bare principal without any interest. But this does not 
 apply to the holder of a negotiable note who has bought it for 
 value without notice of the usury; and such holder can recover 
 six per cent, interest of the maker, though the payee had con- 
 tracted for over six per cent. ; for the note is not void as to the 
 interest, but is "deemed to be for an illegal consideration," 
 which renders it voidable only, as to the excess of interest; and 
 a defence which renders a negotiable instrument voidable, is un- 
 availing against a holder for value without notice. See Lynch- 
 burg National Bank v. Scott, 91 Va. 652. For the effect of a 
 statute declaring a usurious contract void, as distinguished from 
 illegal, see Clark, 270, and cases cited in Lynchburg National 
 Bank v. Scott, supra. 
 
 29. What is the status of wagering contracts? Clark 275-7. 
 By 8 and 9 Viet. c. 109: "All contracts and agreements, whether 
 by parol or in writing, by way of gaming or wagering, shall be 
 null and void." In Virginia by Code, Sec. 2836, "Every contract, 
 conveyance or assurance, of which the consideration, or any part 
 thereof, is money, property or other thing, won or bet at any 
 game, sport, pastime or wager, or money lent or advanced at 
 the time of any gaming or betting or wagering to be used in be- 
 ing so bet or wagered (when the person lending it or advancing 
 it knows that it is to be so used) shall be void." For recovery 
 of money or property lost at gaming ($7.00 or more lost in 24 
 hours, or property of that value), see Code, Sec. 2837, which to 
 this extent sets aside the maxim in pari delicto portior est con- 
 ditio defendentis out possidentis. See also Code Va. Sec. 2838- 
 '39. It must be remembered that at Common Law wagers are 
 valid unless, (1) against public policy, as bets on an election, or 
 on the acquittal of a prisoner, etc.; or (2) injurious to private 
 character or feelings, as a bet on the sex of a person who wore 
 man's clothing (celebrated case of Da Costa v. Jones, Cowper,
 
 NOTES TO CLARK ON CONTRACTS 35 
 
 729, as to the sex of the Chevalier D'Eon), or as to whether an 
 unmarried woman would have a child by a certain day, etc. 
 Dichurn v. Goldsmith, 4 Camp. 152. 
 
 30. What are lobbing contracts? Clark, 285-6. See Trist v. 
 Child, 21 Wall. 441, where a contract to pay a lawyer for get- 
 ting a special act through Congress, appropriating money to sat- 
 isfy a claim, was held void by the Supreme Court of the United 
 States, as contemplating the procuring of legislation by lobbying 
 services. The nature of such services is indicated by this extract 
 from a letter written by the lawyer to his client: "Please write 
 to your friends to write to any member of Congress ; every vote 
 tells and a simple request may procure a vote, he not caring any- 
 thing about it. Set every man you know at work, even if he 
 knows a page, for a page often gets a vote." But the court said : 
 "We entertain no doubt that in such cases, as under all other 
 circumstances, an agreement, expressed or implied, for purely 
 professional services is valid. Within this category are included 
 drafting the petition to set forth the claim, attending to the 
 taking of testimony, collecting facts, preparing arguments, and 
 submitting them orally or in writing to a committee or other 
 proper authority, and other services of like character." 
 
 And see Code Virginia, Sec. 3746-'7, which punish as a mis- 
 demeanor "lobbying with the General Assembly;" but by Sec. 
 3748 the two preceding sections "shall not apply to any person 
 who may be invited by or have the permission of any regular or 
 special committee of the General Assembly to appear before it, 
 either for or against any measure." See Clark, 286. 
 
 31. When is a compromise of a prosecution permissible? See 
 Clark, 292-3. The test in the English case (Kcir v. Leeman, 6 
 Q. B. 321), mentioned on page 294, that a compromise is lawful 
 where civil and criminal remedies co-exist (i. e., where the in- 
 jured party can sue for damages as well as prosecute for the 
 crime) can hardly be applicable now in Virginia, where it is pro- 
 vided by statute that "the commission of a felony shall not stay or 
 merge any civil remedy" (Code, 3884) ; and where the personal 
 representative of a person whose death is caused by the "wrong- 
 ful act, neglect or default, of another," can sue that other for 
 damages, although the death may have been caused "under such
 
 36 NOTES TO CLARK ON CONTRACTS 
 
 circumstances as amount in law to a felony." Code Virginia, 
 2902; Matthews v. Warner's Admr., 29 Gratt. 570. It is be- 
 lieved that prosecutions can be compromised for misdemeanors 
 only, not for felonies, and for such misdemeanors only as are 
 considered to affect mainly the individual prosecuting. Thus, 
 an indictment for assault may be compromised at common law, 
 provided the offence is confined to personal injury, and is not 
 accompanied by riot, or obstruction of a public officer in the 
 execution of his duty. See Keir v. Leeman, supra. The Vir- 
 ginia Statute enacts as follows (Code, Sec. 3973) : "When a 
 person is in jail or under recognizance to answer a charge of 
 assault and battery or other misdemeanor for which there is 
 remedy by civil action, unless the offence was committed by or 
 upon a sheriff or other officer of justice, or riotously, or with 
 intent to commit a felony, if the party injured appear before the 
 judge or justice who made the commitment or took the recogni- 
 zance, and acknowledged in writing that he has received satis- 
 faction for the injury, such judge or justice, in his discretion, 
 may, by an order under his hand, supersede the commitment or 
 discharge the recognizance as the accused and witnesses." 
 
 32. What is the status of maintenance and champerty in the 
 United States? Clark, 296. For full discussion, see monograph- 
 ic note to Thallhimcr v. Brinckerhoff, 3 Cowen (N. Y.) 683- 
 (S. C. 15 Am. Dec. 308). It is there said that the States of the 
 Union may be divided as to maintenance and champerty in three 
 classes. (1) In a few States there is no such thing as cham- 
 perty or maintenance. This is said to be the case in California 
 and Texas, and their existence is doubtful in Vermont, Con- 
 necticut and Missouri. (2) In a second class of States, the 
 strict English rule is in force, and it is champerty for a lawyer 
 to agree to carry on a law suit for a share of the proceeds as his 
 compensation for services, even though he is to make no dis- 
 bursements and the client undertakes to pay the expenses and 
 costs. This rule is said to exist in Kentucky, Indiana, Ohio, Mich- 
 igan, Rhode Island, and Massachusetts. (3) A third group of 
 States have adopted a middle rule by which, although the lawyer 
 is to be paid for his services out of the proceeds, still it is not 
 champerty unless he also agrees to bear the expenses and costs.
 
 NOTES TO CLARK ON CONTRACTS 37 
 
 This modified rule is said to exist in New Jersey, Illinois, Wis- 
 consin, Mississippi, Tennessee, Georgia, Iowa and North Caro- 
 lina. It certainly exists in the Supreme Court of the United 
 States, and in Virginia. See Wright v. Tibbetts, 91 U. S. 252. 
 In Nickels v. Kane's Administrator, 82 Va. 309, it was held that 
 champerty is a bargain for a portion of the matter sued for, by 
 which the champertor undertakes to carry on the suit at his own 
 expense, but that it is not champerty where the attorney does 
 not agree to pay the expenses of the suit ; and that where the de- 
 fendant agreed with an attorney to pay him ten per cent, of the 
 amount by which he should succeed in getting a certain decree 
 reduced, but the attorney did not undertake to bear the costs, it 
 was not champerty, but a valid, enforceable contract. 
 
 As to Vermont, the existence of champerty in that State was 
 doubtful, as is stated above; but in the recent case of Hamilton 
 v. Gray, 67 Vt. 233, champerty is recognized as at common law. 
 
 33. What is a marriage brocage (or brokerage} contract! See 
 Clark 302-4. An example is found in Johnson v. Hunt, 81 Ky. 
 321, where in defence to an action on a promissory note it was 
 pleaded by the maker that he had undertaken to assist his grand- 
 father, the payee of the note (an old man aged 77), in getting 
 married, and had written letters to a young lady on his behalf, 
 etc., and that as compensation for such services the grandfather 
 had agreed to release and give up the note in controversy. Held, 
 that the defence was bad, as it clearly showed a marriage brocage 
 contract, the grandson (the defendant) undertaking to aid in 
 bringing about a marriage in consideration of the surrender by 
 his grandfather of the note for $5,000. 
 
 34. What is the present status in England and the United 
 States of contracts in restraint of trade ? Clark, 305-311. It 
 was formerly thought that the rule that the restraint must be 
 reasonable, always forbade contracts where the restraint zvas 
 unlimited as to space as being necessarily unreasonable; and 
 even that a contract restraining one from carrying on his trade, 
 etc., in England was in its nature unreasonable, against public 
 policy, and void. But in the recent English case of Roussillon 
 v. Roussillon, 14 Ch. D. 351, it was held that a contract unlimited 
 in point of space, whereby the defendant agreed not to establish
 
 38 NOTES TO CLARK ON CONTRACTS 
 
 himself in the champagne trade, was not, under the circum- 
 stances of that trade, unreasonable, and might be enforced. And 
 see now The Ma.vim-Nordenfelt Gun Co. v. Nordenfclt [1894] 
 A. C. 549, where it is decided by the House of Lords that a re- 
 straint general as to space may be valid, if reasonable, under the 
 circumstances of the case, for the protection of the covenantee, 
 provided it is not injurious to the public interest. 
 
 In the very recent case of Diamond Match Co. v. Roeber, 106 
 N. Y. 473 (60 Am. Rep. 464), where a contract was made by 
 the seller with the buyer that he would not at any time within 
 99 years, directly or indirectly, engage in the manufacture or 
 sale of friction matches (unless as agent of the buyer), in the 
 United States or Territories or the District of Columbia, except- 
 ing the State of Nevada and the then Territory of Montana, the 
 court intimated that, if it were necessary, they would hold that a 
 contract in general restraint of trade is not always and neces- 
 sarily unreasonable and void; but they said that they were not 
 called on to decide that question, as in the case at bar the excep- 
 tion of Montana and Nevada made the contract in partial re- 
 straint of trade only, the whole United States in this connection 
 being considered one country. And see Foufle v. Park, 131 U. 
 S. 88. 
 
 35. What ivere the precise facts of Waugh v. Morris, cited 
 in Clark, 325-6. The charter-party provided that the cargo 
 (bales of pressed hay) should be taken to the port of London 
 and there "delivered alongside." The plaintiff did not agree by 
 the charter-party to land it there. Afterwards, landing at Dept- 
 ford Creek (within port of London) was suggested by the de- 
 fendant, and assented to by the plaintiff. But when this mode 
 of performance was found to be illegal it was abandoned, and 
 another and legal mode (delivery alongside, followed by expor- 
 tation) was substituted. 
 
 36. Relief to party to unlawful agreement. See Clark, 336. For 
 full discussion of this subject and a strict application of the 
 maxim "in pari delicto portior est conditio defendentis," see 
 McMullen v. Hoffman, 174 U. S. 639 (note 26 supra), com- 
 menting on the cases of Brooks v. Martin, 2 Wall. 70, and Sharp 
 v. Taylor, 2 Phillips, Ch. 801. As to the latter case, see Bisp-
 
 NOTES TO CLARK ON CONTRACTS 39 
 
 ham's Eq., 42; 1 Pomeroy, Eq. Jur., p. 442, note 2. As to 
 Brooks v. Martin, see Clark, 337, n. 330. 
 
 In Cardwell v. Kelley, 95 Va. 570, an action was brought by 
 the receiver of an insolvent corporation against a stockholder, to 
 recover a stock subscription for the benefit of creditors whose 
 debts were contracted on the faith of his and other subscriptions. 
 The contract of subscription was lawful on its face, and the 
 creditors had no knowledge of any taint by reason of illegality. 
 The stockholder pleaded that he was allured into making the 
 subscription by the chance of obtaining one or more lots, in a 
 drawing for distribution of lots of unequal value, in the nature 
 of a lottery, contrary to C. V. 3285-'6. The court did not 
 decide whether the scheme amounted to a lottery or not ; but held 
 that even if it was illegal, yet the stockholder could not repu- 
 diate his contract of subscription as against the creditors of the 
 insolvent corporation. The maxims 'nemo allegans turpitudinem 
 suam audiendus," and "in pari delicto potior est conditio defen- 
 dentis" were discussed by the court ; and it was declared that in 
 a case of the nature of that at bar the court will consider whether 
 the good of the public and the policy of the law will be subserved, 
 and the making of such contracts be discouraged, by enforcing 
 the contract, or by refusing to do so; and that to enforce the 
 contract in this case would defeat the illegal purpose of the par- 
 ties to it, and tend to deter other persons from entering into 
 similar contracts. To refuse to enforce it would encourage the 
 making of such contracts ; for if the venture succeeded, the par- 
 ties would reap the profits ; and if it failed, they would suffer 
 no loss. See Tate v. Building Ass'n, 97 Va. 74. 
 
 37. What is the rule in Virginia as to the application of pay- 
 ments, where no application has been made by either debtor or 
 creditor? Clark, 437-39, citing Smith v. Lloyd, 11 Leigh (Va.) 
 512, which followed the law as laid down by the Supreme Court 
 of the United States in the cases quoted from by Clark on p. 
 408. In Coles v. Withers, 33 Gratt. 186, it is said by Staples, 
 J.: "This court has repeatedly held that no general rule appli- 
 cable to every case could be adopted and adhered to without 
 producing great hardships. If neither party has made the ap- 
 plication, the court will exercise a sound discretion, and make
 
 40 NOTES TO CLARK ON CONTRACTS 
 
 the application according to its own notions of what may be right 
 and proper in the particular case." He adds: "It must be ad- 
 mitted that this is a very loose and indefinite way of expressing 
 a principle of law, but it has been declared by very eminent 
 judges." See in accord, Chapman v. Com., 25 Gratt. 721. 
 
 In Pope v. Transparent Ice Co., 91 Va. 79, it is said by Keith, 
 P. : "There is some diversity of authority, as courts have in- 
 clined to the common law rule that the application was to be 
 made, where not otherwise directed, in the interest of the cred- 
 itor, or to the rule of the civil law that, under such circum- 
 stances, regard was to be had primarily to the interest of the 
 debtor. The great weight of authority seems to be that in such 
 a case as that now under consideration, where the court has no 
 peculiar fact to aid its discretion, the application must be made 
 to the debt which is least secured, or in other words in the in- 
 terest of the creditor; and this seems to have been the principle 
 of Chapman v. Com., 25 Gratt. 721, where it was applied to the 
 oldest debt, and the law as recognized in Coles v. Withers, 
 where it is said that in such a case it should be applied to the 
 least secured or most precarious debt." In this case, however, 
 it was immaterial to the debtor to which of the two debts due 
 the same creditor the fund was applied, though it was of vital 
 importance to the creditor. With reference to the endorser of the 
 better secured debt (to which the payment was not applied, but 
 to the other as more precarious) the Court held that in such 
 a case the interest of the endorser (to have the debt on which 
 he is liable discharged) is not to be considered; since to allow 
 the endorser to direct the application of the payment would be 
 inequitable, as this would defeat the end of suretyship, and leave 
 the creditor a loser. And see to the same effect Coles y. With- 
 ers, 33 Gratt. 186. 
 
 38. Is the doctrine of Frost v. Knight and Hochster v. Dela- 
 tour, as to "anticipatory breach," law in Virginia? Clark, 444-7. 
 Yes ; see Burke v. Shaver, 92 Va. 345 ; James v. Kibler, 94 Va. 
 165 ; and Lee v. Mutual, etc., Life Ass'n, 97 Va. 160. 
 
 In Burke v. Shaver it is said : "Where one repudiates his 
 promise, and declares that he will not be bound by it, the party 
 not in default need not wait for the time of performance to ar-
 
 NOTES TO CLARK ON CONTRACTS 41 
 
 rive ; and when the engagement is general, need not request the 
 fulfillment of the promise, but may sue at once." Citing 2 Am, 
 & Eng. Ency. Law, 524. And in Lee v. Mutual Life Ass'n, 
 supra, it is said : "In England and a number of the States of 
 this country, including Virginia, it is held that where there has 
 been a total refusal on the part of one of the contracting parties 
 to perform the contract on his part, the other may elect to sue 
 at once, without waiting for the time of performance to arrive. 
 James v. Kibler, 94 Va. 165 ; Hochster v. Delatour, 2 E. & B. 
 678. But in order to do this there must be a distinct, un- 
 equivocal, and absolute refusal to perform the contract." See 
 Johnstone v. Milling, 16 Q. B. Div. 460; Dingley v. Oler, 117 
 U. S. 490; Roehm v. Horst, 178 U. S. 1. 
 
 39. Are installment contracts divisible or indivisible? Clark, 
 453-6. The doctrine of the Supreme Court of the United States, 
 as laid down in Harrington v. Wright, 115 U. S. 188 (see also 
 Cleveland Rolling Mills Co. v. Rhodes, 121 U. S. 254), is that 
 mercantile contracts providing for delivery by installments are 
 indivisible; and that a failure to keep the terms of the contract 
 as to any installment discharges the contract, following the Eng- 
 lish case of Hoare v. Rennie, 5 H. & N. 19. Thus, in Norring- 
 ton v. Wright, it is said by Gray, J. (speaking for the court) : 
 "In the contracts of merchants time is of the essence. The time 
 of the shipment is the usual and convenient means of fixing the 
 probable time of arrival with a view of providing funds to pay 
 for the goods, or of fulfilling contracts with third persons. A 
 statement descriptive of the subject matter, or of some material 
 -incident, such as the time or place of shipment, is ordinarily to 
 be regarded as a warranty in the sense in which that term is 
 used in insurance and maritime law, that is to say, a condition 
 precedent upon the failure or non-performance of which the 
 party aggrieved may repudiate the whole contract." For a case 
 "which lights this doctrine on the outer edge," see Filley v. 
 Pope, 115 U. S. 213, where the contract was for shipment of 
 500 tons of pig-iron from Glasgow, Scotland, to New Orleans, 
 and the buyer was discharged from the contract because the 
 seller shipped the iron from Leith, Scotland, though this was 
 done because of the difficulty of obtaining a vessel at Glasgow,
 
 42 NOTES TO CLARK ON CONTRACTS 
 
 and though the iron arrived at New Orleans sooner than it 
 would have arrived by the first vessel that could have been ob- 
 tained at Glasgow. 
 
 In Norrington v. Wright, supra, the contract was made in 
 Philadelphia for the sale of "5,000 tons old T iron rails, for 
 shipment from a European port or ports, at the rate of about 
 one thousand (1,000) tons per month, beginning February, 1880, 
 but whole contract to be shipped before August 1, 1880." The 
 sellers shipped 400 tons in February, and 885 tons in March. 
 Held, that this was such default on the sellers' part as discharged 
 the buyers. The court said: "The times of shipment as desig- 
 nated in the contract are at the rate of about 1,000 tons per 
 month, beginning February, 1880, but whole contract to be ship- 
 ped before August 1, 1880. These words are not satisfied by 
 shipping one-sixth part of the 5,000 tons, or about 833 tons, in 
 each of the six months which begin with February and end with 
 July. But they require about 1,000 tons to be shipped in each 
 of the five months from February to June inclusive, and allow 
 no more than slight and unimportant deficiences in the ship- 
 ments during those months to be made up in the month of July." 
 
 40. What zvere the facts in Bettini v. Gye? Clark, 457-8. In 
 1 Q. B. D. 188, it is said : "If the plaintiff's engagement had been 
 only to sing in operas at the theatre, it might very well be that 
 previous attendance at rehearsals with the actors in company 
 with whom he was to perform was essential. And if the engage- 
 ment had only been for a few performances, or for a short time, 
 it would afford a strong argument that attendance for the pur- 
 pose of rehearsals during the six days immediately before the 
 commencement of the engagement was a vital part of the agree- 
 ment. As far as we can see, the failure to attend the rehearsals 
 during the six days immediately before the 30th day of March, 
 could only affect the theatrical performances, and perhaps the 
 singing in duets and concerted pieces, during the first week or 
 fortnight of this engagement, which is to sing in theatres, halls, 
 and drawing rooms and concerts, for fifteen weeks. We think, 
 therefore, that it does not go to the root of the matter so as to 
 require us to consider it a condition precedent. The defendant
 
 NOTES TO CLARK ON CONTRACTS 43 
 
 must, therefore, we think, seek redress by a cross claim for dam- 
 ages." 
 
 41. What is the best definition of a warranty as distinguished 
 from a condition? See Clark, 465 ; also Anson, page 304, note 
 (a), where it is said that "a warranty is an independent, sub- 
 sidiary promise, collateral to the main object of the contract." 
 Its breach does not discharge the contract, but gives rise to an 
 action for damages. Thus, on the executed sale of a horse, with 
 warranty of soundness, the breach of the warranty does not au- 
 thorize the buyer to treat the sale (the main object of the con- 
 tract) as void. The warranty is collateral to the main object 
 and subsidiary merely ; hence the buyer must keep the horse 
 (the title to which has passed to him), and sue the seller for 
 damages for the breach of the warranty. 
 
 42. Is Paradine v. Jane now law in Virginia? Clark, 473-4. 
 No. By Code Virginia, Sec. 2455, it is enacted : "No covenant 
 or promise by a lessee to pay the rent, or that he will leave the 
 premises in good repair, shall have the effect, if the buildings 
 thereon are destroyed by the fire or otherwise without fault or 
 negligence on his part, or if he be deprived of the possession of 
 the premises by the public enemy, of binding him to make such 
 payment, or erect such buildings, unless there be other words 
 showing it to be the intent of the parties that he should be so 
 bound." The statute then provides for "a reasonable reduction of 
 the rent," while the tenant is deprived of the premises, or until the 
 buildings destroyed are replaced by others of as much value to 
 the tenant for his purposes as those destroyed. 
 
 43. Does part payment of principal, or payment of interest, 
 remove in Virginia the bar of the Statute of Limitation? Clark, 
 496. No; such payment has no effect in Virginia. There must 
 be a promise in writing to pay the debt or such an acknowledg- 
 ment of the debt in writing that a promise to pay may be in- 
 ferred therefrom. See Cover v. Chamberlain, .83 Va. 286. But 
 part payment of the principal, or payment of interest, is suffi- 
 cient to remove the bar of the statute in England and in the 
 United States generally.
 
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